Smt. Urmila Sahu  vs  State Of Orissa

CASE NAME :-  Smt. Urmila Sahu  vs  State Of Orissa 

CASE NUMBER :-  2509 of 1997

Citations:  1998 CriLJ 1372, 1997 II OLR 426

Acts/Rules/Orders:

Code of Criminal Procedure, 1973 (CrPC) – Section 299; Code of Criminal Procedure, 1973 (CrPC) – Section 482; Dowry Prohibition Act, 1961 – Section 4; Indian Penal Code 1860, (IPC) – Section 34; Indian Penal Code 1860, (IPC) – Section 498A

Cases Referred:

Sheoraj Singh v. Emperor, AIR 1926 Allahabad 340; Emperor v. Baharuddin, AIR 1938 Patna 49; State of Hyderabad v. Bhimaraya, AIR 1953 Hyderabad 63

Bench:    Hon’ble justice-  P Tripathy

FACTS:-

• In the case of Smt. Urmila Sahu vs State of Orissa, the petitioner and co-accused were charged under Sections 498A/34 of the Indian Penal Code (IPC), along with Section 4 of the Dowry Prohibition Act. The case was registered as G.R. Case No. 214 of 1989, corresponding to Digapahandi P.S. Case No. 77 of 1989.
• The charge sheet was filed on 30th June 1991, with the petitioner being declared as an absconder. Due to the petitioner’s inability to be present for proceedings, the G.R. Case was split. G.R. Case No. 214/A of 1989, specifically against the petitioner, was transferred to the dormant file. On the other hand, the trial for G.R. Case No. 214/89 involving the co-accused is currently at the stage of hearing arguments.

CONTENTION OF THE PETITION:-

The petitioner in the case of Smt. Urmila Sahu vs State of Orissa contended that she should be allowed to examine the evidence presented in G.R. Case No. 214 of 1989, which was recorded during the trial against the co-accused (her son). 

• The petitioner sought to quash or drop the criminal proceedings against her, claiming a lack of substantial evidence against her.

• However, this contention of the petitioner is considered without merit for the following reasons. Section 299 of the Code of Criminal Procedure, 1973 (Cr.P.C.), which corresponds to Section 512 of the Code of Criminal Procedure, 1898 (the Old Code), governs the procedure for recording evidence in the absence of an accused, specifically an absconding accused. The statutory provision is clear and unambiguous, and it has been consistently held that if the prosecution does not seek permission to simultaneously present evidence against the absconding accused during the trial of the co-accused, and if the trial court does not record or order the recording of such evidence in accordance with Section 512 of the Old Code (corresponding to Section 299 of Cr.P.C.), then the evidence recorded in the trial against the co-accused cannot be used against the absconding accused when they face trial.

This interpretation is supported by precedents such as the case of Sheoraj Singh v. Emperor (AIR 1926 Allahabad 346) and the case of Emperor v. Baharuddin (AIR 1935 Patna 49).

CONTENTION BY RESPONDENT:-

• The alternative contention in the case of Smt. Urmila Sahu vs State of Orissa pertains to the fixation of a date for the petitioner’s appearance when she intends to surrender before the lower court. The petitioner also requests the lower court to be directed to call for and retain the split-up case record.

Rule 326 of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Criminal Vol. I), known as the G.R. & C.O., provides guidelines regarding the types of cases that can be sent to the dormant file. Cases involving absconding accused individuals are covered by this provision. Rule 327 of the G.R. & C.O. states that after the appearance or production of the accused, the concerned magistrate should call for the record and proceed with the case according to the law in its original number.

• Considering these provisions, it is neither illegal nor unjust to ask the lower court to call for and retain the record on a specified date when the petitioner undertakes to surrender before the magistrate. Based on this perspective, the petitioner is permitted to surrender before the lower court on 20th October 1997 in the forenoon. The Judicial Magistrate First Class (J.M.F.C.), Digapahandi, is directed to call for and retain the record of the split-up case by that date.

JUDGEMENT:-

• Section 299 of the Code of Criminal Procedure (Cr.P.C.) (corresponding to Section 512 of the Old Code) has limited application. It applies when an accused person is proven to have absconded with no immediate prospect of arrest or when an offense punishable by death or life imprisonment has been committed by unknown persons and there is no immediate prospect of their arrest. In such cases, the court competent to try or commit for trial may examine prosecution witnesses and record their depositions.

• However, if the accused is apprehended and available for trial, and the witnesses examined under Section 299 of Cr.P.C. are also available and capable of giving evidence, then the evidence recorded under Section 299 cannot be used as substantive evidence. Section 299 is an exception to the general rules of recording evidence in the presence of the accused. The circumstances, including the availability and capability of witnesses, should be considered when determining whether the evidence recorded under Section 299 can be accepted as evidence against the accused.

• In the case of State of Hyderabad v. Bhimaraya (AIR 1953 Hyderabad 63), a Munsif-Magistrate deleted the names of absconding accused persons from the record based on insufficient proof of their participation. The Hyderabad High Court, on a reference from the Sessions Judge, held that Section 512 of the Code does not authorize the Magistrate to delete the name of an absconding accused based on evidence recorded under that section. The court agrees with this view and rejects the prayer to quash or drop the proceedings.

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