'Archaic Law': Calcutta HC Recommends Amendments To CrPC To Allow Trial In Absentia Of An Absconding Accused To Secure Rights Of Sexual Abuse Victims

The Calcutta High Court on Friday has recommended that appropriate amendments be made to the Code of Criminal Procedure (CrPC) for incorporating provisions for trial in absentia of an absconding accused for better administration of justice and to prevent the loss of valuable evidence due to death of a witness. 

It set aside, as per the existing law, a lower court order that allowed deposition of a gang rape victim recorded during the trial of three other accused in the same case to be used against two absconding accused, who were arrested later.

A Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak observed. 

"Taking note of the pernicious impact of abscondence on speedy justice and rights of victims, this Court proposes that appropriate amendments be made to the Code of Criminal Procedure for incorporating provision for trial in absentia of an absconding accused for better administration of criminal justice."

The directions were issued on a petition by Kader Khan, an accused in the infamous Park Street gangrape case of 2012, that challenged the trial court order allowing the prosecution to use deposition of the victim, who died in March 2015, against him during the trial. He had absconded following the incident and was arrested in September 2016.

Reliance was also placed on the Supreme Court judgment in Hussain and Another v. Union of India wherein the Apex Court on noticing the alarming trend of abscondence affecting delay in trials had referred to section 339B of the Bangladesh Cr.P.C to observe that appropriate authority may take cognizance of the said law.

Opining that no amendment has yet been made to Section 299(1) Cr.P.C to provide for trial in absentia of an absconder despite such an observation by the Supreme Court, the Court remarked, 

"Inspite of such observation of the Apex Court no amendment has been made to Section 299(1) Cr.P.C to provide for trial in absentia of an absconder which may avoid unfortunate loss of valuable evidence due to death of a witness as in the present case."

In the instant case, while caught between an absconding accused and unfortunate demise of a rape victim, the prosecution had  belatedly taken out an application praying the evidence of the rape victim recorded in the course of trial of other accused persons (while the petitioner was absconding) be read in evidence in the subsequent trial of the absconder after his arrest. The concerned Trial Court had subsequently allowed such an application. 

The Court at the outset remarked that the present case is reminiscent of an age-old adage 'to close the stable door after the horse has bolted'. However, it recognised that there is a need for evolution of the law to better secure the rights of victims particularly victims of sexual abuse and accordingly observed, 

"I am unable to agree with the trial Court that the deposition of the rape victim recorded in the course of earlier trial and her statement before the Magistrate exhibited therein, can be said to be admissible in the subsequent trial of the absconding petitioner. This unfortunate loss of valuable evidence of a rape victim arises due to the prevalence of an archaic law relating to trial of absconders which does not recognize the evolution of law relating to waiver of fair trial rights of an absconder justifying trial in absentia and emergence of rights of victims, particularly victims of sexual abuse, against secondary victimization by giving repeated depositions in Court."

Accordingly, the Court directed the Registrar General of the High Court to send a copy of the judgment to the Principal Secretaries to the Ministry of Home Affairs and Ministry of Law and Justice, Union of India for consideration of the proposal to amend the Code of Criminal Procedure and incorporate provision of trial in absentia of an absconding accused therein.

The Court further underscored that before a prosecutor invokes section 299(1) of the CrPC against an absconding accused, it must be proved before the trying Court that the accused had absconded and that there is no imminent possibility of his arrest and upon proof of such facts the Court may permit the prosecution evidence led during the trial of other accused persons be recorded against the absconding accused also. 

However, opining that no such prayer had been made by the prosecutor in the instant case, the Court observed, 

"If the evidence is so recorded against the absconder, it may be used against him in the subsequent trial upon his arrest if the witness is dead or incapable of giving evidence or is not found or his attendance cannot be procured without unreasonable delay, expenses or inconvenience. Admittedly, in the present case, prosecutor did not make any prayer before the trial Court during the earlier trial of the co-accuseds that the prosecution evidence recorded in the said trial be also recorded against the absconder."

Reliance was also placed on the Supreme Court decision in Vijay Ranglal Chorasiya v. State of Gujarat wherein the Apex Court had disapproved the High Court to rely upon the evidence recorded in an earlier trial of co-accused persons against the absconder although such evidence had not been transferred in accordance with the provisions of section 299(1) of Cr.P.C.

"Words used in section 299 of the Cr.P.C. cast an unambiguous duty on the prosecutor to obtain a direction from the committing/trying Court that prosecution evidence led in the trial of co-accused be also recorded against the absconder. When words of a statute are clear and unambiguous and no alternate intention can be contextually derived therefrom, it is not within the domain of a Court to re-write the statute and hold that evidence recorded in the course of an earlier trial against co-accused be deemed to have been automatically recorded against the absconder even when the prosecutor has not chosen to invoke the aforesaid provision of law", the Court underscored. 

Accordingly, the Court set aside the impugned order by observing that a direction by the trying Court in the course of subsequent trial of an absconder to treat the evidence recorded in an earlier trial of co-accused facing the same charge is an error in jurisdiction.

"No Court has jurisdiction to transfer evidence recorded in an earlier trial after its completion as evidence against an accused who had not been put up for trial in the earlier case even if both the trials are in respect of the self-same charge. This is against the fundamental principle of criminal jurisprudence that each criminal case has to be tried on the basis of evidence led in the said case and not by reference to evidence in other cases. Trial Court erred in law to hold such jurisdictional error was a curable irregularity and ought to be condoned under Section 465 Cr.P.C. in the interest of justice", the Court held further. 

Case Title: Kader Khan v. State of West Bengal 

Case Citation: 2022 LiveLaw (Cal) 161

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