JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA AND ANOTHER

Citation: [2009] 8 S.C.R. 591

Court: Supreme Court of India

Bench: S.B. SINHA, MUKUNDAKAM SHARMA

Case summary

JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA AND ANOTHER.pdf

Judgment text

[2009] 8 S. C. R. 591 JAYENDRA VISHNU THAKUR V. STATE OF MAHARAHSTRA AND ANOTHER (Criminal Appeal No. 981 of 2009) MAY 11, 2009 [S. B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ. ] PENAL CODE, 1860/EVIDENCE ACT, 18721 TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987: Sections 299133114(5) - Recording of evidence of witness in absence of accused - Relevancy of certain evidence for proving the truth of facts stated therein - Interpretation of. i -~ INTERPRETATION OF STATUTES: Any word given in a statutory provision should ordinarily be given the same meaning while construing the other · provisions thereof where the same term has been used. Interpretation of the provisions of Section 299 Cr. P. C. , Section 33 of Evidence Act, 1871 and Section 14(5) of TADA relating to recording of evidence of witnesses in absence of accused and relevancy of certain evidence for proving the truth of facts stated therein, is involved in the appeal. Allowing the appeal, the Court HELD: 1.

Even in the United States of America, the accused's right under the Sixth Amendment is not absolute. The right of confrontment of an accused is subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an ~\... accused can be asked to go outside the court room so long he does not undertake to behave in an orderly manner. [Para 13] [610-C-D] Jack R. Goldberg v. John Kelly 25 L. Ed 2d 287 and Greene v. Mc Elorey 3 L Ed 2d 1377, referred to. 2. An accused is, always entitled to a fair trial. He is • also entitled to a speedy trial but then he cannot interfere I with the governmental priority to proceed with the trial which would be defeated by conduct of the accused that prevents it from going forward. In such an event several options are open to courts. What, however, is necessary is to maintain judicial dignity and decorum. [Para 13] [610- D-F] . 1- 3.

A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, crossexamination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to ~ represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. [Para 13] (610- H; 611-A-B] Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417, referred to. ~ State of Illinois v. William Allen 397 US 337, referred to. 4. It is also beyond any cavil that the provisions of MAHARAHSTRA AND ANR _.

,, Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character. [Para 14] [611-C-D] 5. It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same • term has been used. Under Section 3 of the Evidence Act • · like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part ~... of the evidence is imperative in character. [Para 14] [611- D-F] 6.

Indisputably both the conditions contained in the first part of Section 299 of -the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should be not sufficient. It was thus, obligatory on the part of the court to arrive at a finding 1 on the basis of the materials brought on record by -' bringing a cogent evidence that the jurisdictional facts existed so as to enable the court concerned to pass an appropriate order on the application filed by the Special Public Prosecutor. [Para 16] [614-E-G] Rustam v. Emperor, AIR 1915 All 411; Mysore v. Sanjeeva, AIR 1956 Mys. 1; Shiv Chander Kapoor v. Amar _.. Bose, (1990) 1 SCC 234; Manboth v. Emperor AIR 1944 Nag 274; Nazir Ahmad vs. Emperor AIR 1936 PC 253: 17 Lah. 629 Bhagwati v. Emperor, AIR 1918 All 60; Janu v. Emperor, AIR 1947 Sind 122; Ghurbin Bind v. Queen Empress, 1884 (10) ILR Cal 1097; Nirmal Singh v. State of Haryana. (2000) 4 sec 41 and Kartarey v. State of UP.

, (1976) 1 sec 172, referred to. 7 Once a person is arrested he cannot be considered as a proclaimed offender It is not a law that once a proclaimed offender shall all along be treated to 8 be so. If he had a right to take part m the trial, the trial court was duty bound to provide for the same. In any event the Designated Judge did not rely on the f f proclamation made under Section 82 of the Code. It is in the aforementioned situation, one has to consider as to whether sub-section (5) of Section 14 of the Act would be attracted. No application has been filed under the aforementioned provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that it was necessary so to do. The condition precedent therefor was 'if it thinks fit'. For the said purpose he was to record reasons. Such an order could be passed with a view to continue with the trial. It may be for a day or for a few days.

The accused ordinarily and subject to just exceptions must be facing the trial. In other words, the court was required to opine that recording of evidence is urgent or there existed certain and cogent reasons which would enable him to record evidence in absence of an accused or his pleader. Recording of reasons is imperative in character. It is the only safeguard which had been provided to check an arbitrary exercise of power. It expressly preserves the right of the accused to recall the witness for cross-examination. It does not contemplate a situation like the one under Section 299 of the Code. By reason of the said provision even the relevance of the evidence as envisaged under Section 33 of the Evidence Act is not taken away. [Para 17] [622-E- H; 623-A-D] 8. An accused ordinarily would not be presumed to MAHARAHSTRA AND ANR have waived his right.

The procedural principles like estoppel or waiver would not be attracted where an order is passed without jurisdiction as the same would be nullity. An order which is a nullity cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. [Para 17] [625-E-F] Chief Justice of Andhra Pradesh & Anr. vs. L. V. A Dikshitulu & Ors. AIR 1979 SC 193, relied on. 9. 1. On bare perusal of the provisions of Section 299 of the Code and Section 14(5) of TADA it would be evident that they operate in different fields. The ingredients of the said provisions are different. Materials, which are, thus, required to be brought on record by the prosecution for application of the aforementioned 0 provisions may be different, although they may be overlapping to some extent. [Para 17] [625-G-H] 9. 2.

In the instant case the Public Prosecutor must be of the opinion that it was not a case where Section 14(5) of TADA shall apply, having regard to the fact that neither the accused nor his pleader was before the Court. Although this Court does not intend to pronounce finally on the point, but it appears that Section 14(5) of TADA would be attracted only when the accused is facing trial and/or otherwise represented thr:ough his advocate. If neither the accused nor his pleader had an occasion to be before the Court, sub-section (5) of Section 14 may not be held to have any application. [Para 17] [626-A-B] 9. 3. There is another aspect of the matter which cannot be lost sight of. No charge-sheet was filed against the appellant. In the charge-sheet dated 27th August, 1993, rightly or wrongly, he had been shown as absconding. In the absence of any charge-sheet no cognizance could have been taken against him in the / sense that he could not have been directed to stand trial.

It is not the contention of the respondents that the Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him. Undoubtedly in the order dated 30th December, 1993, while framing charges his name had beeri shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in the trial. He was i arrested formally only on 4th August, 1993 and charges ' were framed against him only on 15th November, 2003. All the witnesses expired prior thereto. The question of his exercising his right to cross-examine the said witnesses would have arisen only after the said date and not prior thereto. Thus, it is incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial.

In that view of the matter, this Court is of the opinion that it was not a case wherein sub-section (5) of Section 14 of the Act would have been attracted s:nce the order of the TADA Court specifically invoked Section 299 of the Code. [Para 17] [626-C-H; 627-A] 9. 4. This Court has proceeded on the basis that the right of confrontation is not a fundamental right or whereby accused's fundamental right has not been oreached. Article 21, however, envisages a fair trial; a fair procedure and a fair investigation. By reason of such a right alone the appellant was entitled not only to be informed about his fundamental right and statutory rights but it was obligatory on the part of the Special Public Prosecutor to place on record all the requisite materials before the Designated Judge to show that the appellant, after his arrest in the Delhi case on 23rd July, 1993 was not an absconder and thus the provisions of Section 299 of the Code was not attracted.

[Para 17] [627-A-C] MAHARAHSTRA AND ANR. Noor Aga v. State of Punjab 2008 (9) SCALE 691; Kartar Singh v. State of Punjab, (1994) 3 SCC 569; Cho/an Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 and Vima/ben Ajitbhai Patel v. Vatslaben Ashokbhai Patel und others, (2008) 4 SCC 649, referred to. 10. Infringement of a valuable right itself causes ... • prejudice. [Para 17] [630-A] S. L Kapoor v. Jagmohan (1980) 4 SCC 379, relied on. 11. When an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity. [Para 17] [630-D] A. R. Antulay v. R. S. Nayak and another, (1988) 2 SCC - ' 602; State of Haryana v. State of Punjab, (2004) 12 SCC 673 and Rajasthan State Road Transport Corporation and others v. Zakir Hussain, (2005) 7 SCC 447, relied on. Case Law Reference: 25 L. Ed 2d 287 referred to Para 13 3 L Ed 2d 1377 referred to Para 13 _. , ..

(2008) 2 sec 417 referred to Para 13 397 us 337 referred to Para 13 AIR 1915 All 411 referred to Para 16 AIR 1956 Mys. 1 referred to Para 16 .... (1990) 1 sec 234 referred to Para 16 AIR 1944 Nag 274 referred to Para 16 AIR 1936 PC 253: ' .... _ 17 Lah. 629 referred to Para 16 AIR 1918 All 60 referred to Para 16 I AIR 1947 Sind 122 referred to Para 16 1884 (10) ILR Cal 1097 referred to Para 16 .. (2000) 4 sec 41 referred to Para 16 ' (1976) 1 sec 112 referred to Para 17 AIR 1979 SC 193 relied on Para 17 2008 (9) SCALE 691 referred to Para 17 (1994) 3 sec 569 referred to Para 17 _J •. (2005) 3 sec 241 referred to Para 17 (2008) 4 sec 649 referred to Para 17 (1980) 4 sec 379 relied on Para 17 (1988) 2 sec 602 relied on Para 17 (2004) 12 sec 673 relied on Para 17 > (2005) 1 sec 447 relied on Para 17 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 981 of 2009. From the Judgment & Order dated 6. 3. 2007 of the Designated Court (TADA), Pune in Applications Exh.

1118 and 1227 in TSC No. 2/1996, 1/1997 and 2/1997. Shekhar Nafade, Manoj Goel, Shuvodeep Roy, Wajeeh Safiq, Avinash Kr. Brij Bhusan, Gopal Verma, Ravindra Keshavrao Adsure and Sanjay Jain for the appearing parties. The Judgment of the Court was delivered by MAHARAHSTRA AND ANR. ~l S. B. SINHA, J. 1. Leave granted.. \ 2. Interpretation of the provisions of Section 299· of the Code of Criminal Procedure, 1973 (for short 'the Code'), Section 33 of the Indian Evidence Act, 1871 as also Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short 'the TADA') is involved in this appeal which arises out of a common order dated 6th March, 2007 passed ~ by Dthe Designated Court (TADA), Pune, in Application Exh. 1118 and 1227 in TSC No. 2/1996, 1/1997 and 2/1997. 3. The said question arises in the following fact situation. One Suresh Narsinh Dube was shot dead at Nallasopara Railway Station in the suburbs of Mumbai on 9th October, 1989.

The impleaded respondent herein, the brother of the deceased, . ,- ---i. filed a complaint petition with regard to the incident. Appellant absconded. A proclamation under Section 82 of the Code was thereafter issued on 9th February, 1993 declaring the appellant as a proclaimed offender. Subsequently, the said proclamation was also published in different newspapers on various dates. J In connection with the said occurrence initially 12 persons ; were charge-sheeted upon completion of investigation on 27th August, 1993, wherein eight persons, including the appellant, were shown to be absconding. Appellant and other accused were also booked under TADA. Indisputably, in connection with a case arising out of FIR . Nos. 140-144 of 1993 the appellant was arrested in Delhi on 23rd July, 1993. By a letter dated 1st September, 1993 the _. Investigating Officer in the present case informed the Designated Judge, TADA Court at Mumbai in regard to the appellant's arrest in the Delhi case. 4.

Appellant was arrested by the Maharahstra Police on 600 SUPREME COURT REPORTS [2009] 8 S. C. R. ,, 23rd October, 1993 in connection with FIR No. 3/1992 and was produced before the Chief Judicial Magistrate, Thane on 24th October, 1993 and was remanded to police custody till 20th November, 1993. He was again shown to have been arrested on 20th November, 1993 in two cases; one relating to FIR No. 237/1992 of Manikpur Police Station and the other in FIR No. 161 of 1992 of Virar Police Station. He was in judicial custody till 21st December, 1993. 5. On a Special Leave Petition (Crl. ) Nos. 643-646 having been filed before this Court by the appellant and others, this Court by its order dated 23rd November, 1993 inter alia directed splitting up of the case with regard to the absconding accused. Charges in the matter were framed by the Designated Judge on 30th December, 1993. J • - 6.

On an application filed by the Public Prosecutor under Section 299 of the Code, an order was passed by the Designated Judge on 1st January, 1994. 7. The State of Maharashtra filed a writ application before the High Court of Delhi for securing the presence of the appellant in the cases pending in the State of Maharashtra including the case in question, which by reason of an order dated 19th December, 1994 was dismissed. On or about 11th July, 1995 an application under Section 83 of the Code was filed by the Investigating Officer through the Public Prosecutor wherein it was admitted that the appellant had not been absconding. 8. On an application moved by the State of Maharashtra ·G to the Designated Judge, TADA, Delhi for transfer of the * appellant to Maharashtra, the Designated Judge by his order dated 21st July, 1995 refused to do so in view of the order passed by the High Court on 19th December, 1994. Appellant moved an application for production warrant for ,;.

MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] -l recording his plea against charges which was dismissed on 25th July, 1995. Yet again he filed an application on 21st August, 1995 praying for issuance of transfer warrant. 9. Indisputably 10 witnesses were examined during the period 6th November, 1995 to 22nd January, 1997, who have since expired. Their names, respective dates of their deposition and dates of death, are as under:- PW Name of the Witness Date of Date of No. deposition death 36 Parhuram Sonu Kawale 6. 11. 1995 29. 1. 2004 --. i. 60 Bharat Jaggubhai Rathod 18. 12. 1995 22. 6. 2004 42 Sakharam Samji Kadu 14. 11. 1995 13. 2. 2003 69 Madhukar Dattatraya 18. 1. 1996 19. 3. 2001 Paradkar 25 Sitaram Dhari Yadav 17. 10. 1995 Dec. 2001 ~ 81 Aruta Malleshwar Rao 20. 2. 1996 1. 5. 2001 .. r.... 72 Hanumanta Raghunath 20. 1. 1996 5. 9. 1997 Jadhav 77 Shivajirao Vithalrao 14. 2. 1996 28. 7. 2003 Barawkar 88 Sham Maruti Bingawade 31. 1. 1997 25. 4. 1997 .. 83 Sayajirao Bapusahab 22. 1.

1997 14. 10. 2002 Dubai Appellant was formally arrested in the present case on 4th August, 1997. A supplementary charge sheet was filed on 19th ~ ). August, 1997. Charges were framed against six accused persons including the appellant on 15th November, 2003. In the said proceeding two applications were filed by the Senior Public Prosecutor on 25th September, 1996 and 11th October, 2006 for exhibiting the depositions of PW-36 and nine other witnesses, who had since expired, which by reason of the impugned order have been allowed. Aggrieved by the said order, the appellant is before us. 10. Mr. Manoj Goel, learned counsel appearing on behalf of the appellant, inter a/ia would submit :- 1.

The impugned order is wholly unsustainable as the Designated Judge, TADA, in its order dated 1st -L--' January, 1994 on the application under Section 299 of the Code did not assign sufficient and cogent reasons which would satisfy the jurisdictional facts contained in first part thereof or the legal requirements contained in the second part. 2. Since the jurisdictional facts require proving of not only the abscondance of an accused but also a situation where immediate prospect of his arrest ' .. was absent and which being a condition precedent; .... and as in the facts and circumstances of this case the appellant's presence could have been obtained as he was under arrest in a Delhi case which fact was known to the prosecution, the impugned order cannot be sustained. 3. Right to confront a witness being a fundamental iright in terms of Article 21 of the Constitution of India and Section 299 of the Code being an exception thereto, the same should be strictly construed. 4.

Admittedly appellant having been arrested by the ti MAHARAHSTRA AND ANR. [S. S. SINHA, J. ] Delhi police on 23rd July, 1993 and in all subsequent applications as also in the letters the prosecution it having not been shown that the appellant had been absconding, the order of the learned DEisignated Judge dated 1st January, 1994 must be held to be illegal and without jurisdiction. ~, 5. The legal requirements to attract the provisions of Section 33 of the Evidence Act having not been complied with by prosecution as no finding has been arrived at by the designated court that the materials brought on record were sufficient to attract the same. 6.

The requirements of law for the purpose of issuance of a proclamation in terms of Section 82 of the Code being only reason to believe' and the requirement for exercise of jurisdiction by the Court under Section 299 of the Code being "proved" and, thus, only because an accused had been absconding the same by itself could not have been a ground for invoking the jurisdiction under Section 299 of the Code in absence of any finding that not ~ - - • or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though .. - .

according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW- 48/A to PW-48/E. As has been stated earlier, since the law empowers the court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross- "'" examining the witnesses, it is, therefore, necessary that the preconditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the ...

prosecution, which proposes to utilise the said statement .. as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. " MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] 17. In this case moreover the appellant had not been absconding after he was arrested. The term 'absconding' has been defined in several dictionaries. We may refer to some of them. 'Black's Law Dictionary - To depart secretly or suddenly, esp. to avoid arrest, prosecution or service of process. P. Ramanatha Aiyar- primary meaning of word is 'to hide'. Oxford English Dictionary - 'To bide or sow away'. Words and phrases - ·clandestine manner/intent to avoid legal process' In Kartarey v. State of U. P. , [ (1976) 1 SCC 172 [ this Court ~ -. ,. held: "43. Further it is wrong to say that Baljeet never absconded.

Contrary to what Baljeet has said in his examination under Section 342 of the Cr PC, the Investigating Officer, PW 7, testified that Baljeet was found hiding in a chhappar in the village from where he was arrested. This account of Baljeet's arrest was not challenged in cross-examination. To be an "absconder" in ' the eye of law, it is not necessary that a person should have + run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home. We therefore, do not find any ground to distinguish the case of Baljeet from that of Sitaram and to treat him differently. " Furthermore for the purpose of invoking Section 299 of the Code the learned Designated Judge was required to hold on J. the date of passing of the order, namely 1st January, 1994 that he had been absconding on that date. In view of the nature of evidence which had been brought \.

on record, it was not possible for him to hold so, namely - (a) Letter dated 1st September, 1993 (b) Arrest of the petitioner by Thane Rural Police in FIR No. 3/92. (c) I. O's letter dated 25th October, 1993. I "' (d) Reply dated 1st November, 1993 (e) Third arrest of the petitioner on 20th November, 1993 in FIR No. 237/92 of Manikpur Police Station. (f) On 20th November, 1993 petitioner was arrested in another FIR No. 161/92 in Virar Police Station. """. The learned Designated Judge no doubt issued a proclamation but the same was done in February, 1993. Once a person is arrested and/or is otherwise capable of being brought to court, the proclamation ceases to have any effect. Once a person is arrested, he cannot be considered as a proclaimed offender. It is not a law that once a proclaimed offender shall all along be treated to be so. If he had a right to take part in the trial, the trial court was duty bound to provide ~ for the same.

In any event the learned Designated Judge did not rely on the proclamation made under Section 82 of the Code. It is in the aforementioned situation, we may consider as to whether sub-section (5) of Section 14 of the Act would be attracted. ~ No application has been filed under the aforementioned provision. For invocation of the said provision, materials were required to be brought on record so as to enable the court to arrive at a finding that it was necessary so to do. The condition precedent therefor was 'if it thinks fit'. For the said purpose he MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] ~/ was to record reasons. Such an order could be passed with a view to continue with the trial. It may be for a d~y or for a few days. The accused ordinarily and subject to just exceptions must be facing the trial.

In other words, the court was required to opine that recording of evidence is urgent or there existed certain and cogent reasons which would enable him to record evidence in absence "' of an accused or his pleader. Recording of reasons is imperative in character. It is the only safeguard which had been provided to check an arbitrary exercise of power. It expressly preserves the right of the accused to recall the witness for cross-examination. It does not contemplate a situation like the one under Section 299 of the Code. By reason of the said provision even the relevance of the evidence as envisaged -~ -. under Section 33 of the Evidence ,A. ct is not taken away. We must place on record that there are enough materials on the record to show that the appellant had made all attempts to be tried alongwith other accused persons.

He in fact moved this Court under Article 32 of the Constitution of India for the aforementioned purpose wherein, on 23rd November, 1993 an order was passed stating :- ~ "Leave granted ,. _ After hearing the learned Additional Solicitor General and Mr. P. Chidambram, senior counsel appearing on behalf of State ando petitioner, accused respectively, we . pass the following order with the consent of the parties. The Presiding Judge of the Designated Court, Pune is directed to expedite the hearing of the case and ~consider the feasibility of framing of charges or otherwise before 13th December, 1993 after splitting up the case with regard to the absconding accused, if any, and commence the trial from 14th December, 1993 and examine witnesses on day to day basis. Both the parties have agreed that they ' ;will not be taking any adjournment on any ground and on the other, they will fully cooperate in the trial of the case.

The Presiding Judge of the Designated Court is further directed to examine the material witnesses first in the order and thereafter the other remaini. nQ witness. This order is without prejudice to the rights and contentions of the parties to urge any legal point including I jurisdiction of the Designated Court. " " The said order was passed in the case of the appellant himself. If he did not want to stand his trial at that stage, the question of issuance of the said direction did not arise. Even the question of splitting of the case with regard to the absconding accused did not arise. Appellant being agreeable not to take adjournment on any ground and his undertaking to ,. , fully cooperate in the trial of the case could not arise if he would not have been standing trial.

The effort on the part of the appellant to be produced before the TADA Court is evident from the fact that not only he filed an application in that behalf before the Delhi High Court, he even filed several applications Din the pending proceedings. The High Court by its order dated 19th December, 1994 directed :- "The prayer made in this petition is that respondent No. 4, who is required to face trial in a Court in Maharashtra -+ should be transferred to that court. The petitioner forgets .. that respondent No. 4 is facing a trial in a serious offences in Delhi. It is obvious that unless one trial is over, that other trial cannot take place. Respondent No. 4 cannot be shifted from place to another so that trials can take place simultaneously. The interest of the petitioner, Maharashtra State are well protected by making entries in the challan of respondent No. 4 in jail record as well as in record of court where respondent No.

4 is facing trial in Delhi that has not to be released till any order is made by a competent court in Maharashtra with regard to the case pending in MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] ( that Court. As soon as the trial at Delhi completes, respondent No. 4 shall be transferred to the jurisdiction of the court at Maharashtra where he is to face the trial. The Delhi Court shall take expeditious steps to complete the trial at an early date. With these observations, we dispose of this petition. Copy of this order be sent to Chief Metropolitan Magistrate, to TADA Court where respondent No. 4 is facing the trial and also to Supdt. Jail and to Designated Court in Pune. " Thus, he, for all intent and purport, made subject to the jurisdiction of the Pune TADA Court as well. Mr. Nafade would submit that having regard to the fact that - -.. the appellant having filed several applications before the TADA Court, could have also questioned the legality of the order dated 1st January, 1994.

Such an occasion, in our opinion, did not arise particularly having regard to the nature of the order passed therein. An accused ordinarily would not be presumed to have waived his right. The procedural principles like estoppel or waiver would not be attracted where an order is passed without jurisdiction as the same would be a nullity. An order which is *" nullity cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. [See Chief Justice of Andhra Pradesh & anr. vs. L. V. A. Dikshitulu & ors. (AIR 1979 SC 193 at 198)] A bare perusal of the provisions of Section 299 of the Code and Section 14(5) of TADA it would be evident that they operate in different fields. The ingredients of the said provisions are different. Materials, which are, thus, required to be brought on record by the prosecution for application of the aforementioned provisions may be different, although they may be overlapping to some extent.

In this case the learned Public Prosecutor must be of the opinion that it was not a case where Section 14(5) of TADA shall apply, having regard to the fact that neither the accused nor his pleader was before the Court. Although we do not intend to pronounce finally on the point, but it appears to us that Section 14(5) of TADA would be attracted only when the accused is facing trial and/or otherwise represented through his advocate. If neither the accused nor his pleader had an f occasion to be before the Court, sub-section (5) of Section 14 may not be held to have any application. There is another aspect of the matter which cannot be lost sight of. No chc::rge-sheet was filed against the appellant. In the charge-sheet dated 27th August, 1993, rightly or wrongly, he had been shown as absconding. In the absence of any chargesheet no cognizance could have been taken against him in the sense that he could not have been directed to stand trial. .

It is not the contention of the respondents that the learned Magistrate despite the said charge-sheet dated 27th August, 1993 had taken cognizance against him. Undoubtedly in the order dated 30th December, 1993, while framing charges his name had been shown as an absconding accused. He was, therefore, not before the Court. He could not have taken part in the trial. He was arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003. We have noticed hereinbefore the respective dates of death of the witnesses concerned. All the witnesses expired prior thereto. The question of his exercising his right to crossexamine the said witnesses would have arisen only after the said date and not prior thereto. It is, in our opinion, incorrect to contend that such a right could be exercised at any date prior thereto. Such a question could have arisen provided he was facing trial.

In that view of the matter we are also of the opinion that it was not a case wherein sub-section (5) of Section 14 of the Act would have been attracted since the order of the TADA MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] . ( Court specifically invoked Section 299 of the Code. We have proceeded on the basis that the right of confrontation is not a fundamental right or whereby accused's fundamental right has not been breached. Article 21, however, envisages a fair trial ; a fair procedure and a fair investigation. By reason of such a right alone the appellant was entitled not only to be informed about his fundamental right and statutory .... • rights but it was obligatory on the part of the Special Public Prosecutor to place on record all the requisite materials before the learned Designated Judge to show that the appellant, after his arrest in Delhi case on 23rd July, 1993 was Dnot an absconder and thus the provisions of Section 299 of the Code was not attracted. Mr.

Nafade sought to place before us to the gravity of the . -·-,i offence. He has drawn our attention to the fact that this Court on an appeal preferred by the complainant reversed the judgment of acquittal passed by the TADA Court against other accused except six accused against whom there was no direct allegation of murder. In Noor Aga v. State of Punjab [2008 (9) SCALE 691] this Court while dealing with a similar draconian statute, held :- • . ),. "44. The Act contains draconian provisions. It must, however, be borne in mind that the Act was enacted having regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional.

~- 45 A rig ht to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. 46. A Fundamental Right is not absolute in terms. ,. 47. It is the consistent view of this Court that 'reason to ' believe', as provided in several provisions of the Act and as defined in Section 26 of the Indian Penal Code, on the part of the officer concerned is essentially a question of fact. 48. The procedures laid down under the Act being stringent in nature, however, must be strictly complied with. It was further held :- "52.

Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. 53. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. " -+ This Court in Kartar Singh v. State of Punjab, (1994) 3 sec 569 has held :- "278.... It is the jurisprudence of law that cross- examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are : (1) to destroy or weaken the evidentiary value of the witness of his adversary; MAHARAHSTRA AND ANR. [S. B. SINHA, J. ] .

s· (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; 8 and the questions to be addressed in the course of crossexamination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. " [See also Cho/an Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 sec 241 ]. In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, I (2008) 4 sec 649, this Court observed :- . ---. o "32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored.

The provisions of the Code of Criminal Procedure do not warrant sale of the ~ property despite the fact that the absconding accused had ... surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject-matter of execution ofD a decree, far less for executing the decree of a third party, who had no right, title or interest thereon. " Mr. Nafade would submit that the appellant did not suffer any prejudice. We do not agree. Infringement of such a valuable right itselfcauses prejudice. In S. L. Kapoor v.

Jagmohan, [ (1980) 4 SCC 379], this Court clearly held :- "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. " In A. R. Antu/ay v. R. S. Nayak and another, [ (1988) 2 sec 602 ] a seven Judge Bench of this Court has also held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity. {See also State of Haryana v. State of Punjab, [(2004) 12 SCC 673] and Rajasthan State Road Transport Corporation and others v. Zakir Hussain, [(2005) 7 sec 447]} 18. For the reasons aforesaid the impugned order cannot be sustained.

It is set aside accordingly. The appeal is allowed. G. N. Appeal allowed.