2009 (5) TMI 1008 - SC - Indian Laws

Issues Involved:
1. Interpretation of Section 299 of the Code of Criminal Procedure, 1973.
2. Interpretation of Section 33 of the Indian Evidence Act, 1871.
3. Interpretation of Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
4. Legality of the Designated Judge's order dated 1st January 1994 under Section 299 of the Code.
5. Right to confront a witness under Article 21 of the Constitution of India.
6. Requirements for issuance of a proclamation under Section 82 of the Code.
7. Admissibility of evidence collected from witnesses who have since expired.

Detailed Analysis:

1. Interpretation of Section 299 of the Code of Criminal Procedure, 1973:
The court emphasized that Section 299 has two parts: proving the accused has absconded and there is no immediate prospect of arresting him. Both conditions must be satisfied conjunctively. The court underlined the necessity for strict compliance and a definitive finding based on material evidence. The Designated Judge's order dated 1st January 1994 lacked sufficient reasoning and material evidence, particularly since the appellant was already in custody, which was known to the investigating officer.

2. Interpretation of Section 33 of the Indian Evidence Act, 1871:
Section 33 allows evidence given by a witness in a judicial proceeding to be relevant in subsequent proceedings if the witness is dead or incapable of giving evidence. The court noted that the right to cross-examine a witness is a statutory right, and strict compliance with the preconditions of Section 33 is necessary. The prosecution failed to prove the foundational facts required under Section 33, making the evidence inadmissible.

3. Interpretation of Section 14(5) of TADA:
Section 14(5) allows a Designated Court to proceed with the trial in the absence of the accused, subject to the right of the accused to recall the witness for cross-examination. The court noted that Section 14(5) and Section 299 of the Code operate in different fields, with different requirements. The Designated Judge's order did not invoke Section 14(5) but rather Section 299, which necessitates proving the accused was absconding and there was no immediate prospect of arresting him.

4. Legality of the Designated Judge's Order dated 1st January 1994:
The court found the Designated Judge's order under Section 299 of the Code unsustainable. The order lacked sufficient and cogent reasons, and the jurisdictional facts were not established. The appellant was already in custody, and this fact was known to the investigating officer. The court emphasized that the order was arbitrary and without jurisdiction.

5. Right to Confront a Witness under Article 21 of the Constitution of India:
The court acknowledged the right to confront a witness as a valuable right, though not explicitly recognized as a fundamental right under Article 21. The right to a fair trial, fair procedure, and fair investigation is implicit in Article 21. The court noted that the appellant's right to cross-examine witnesses was violated, causing prejudice to the appellant.

6. Requirements for Issuance of a Proclamation under Section 82 of the Code:
The court noted that the requirements for issuing a proclamation under Section 82 are different from those under Section 299. The proclamation issued in February 1993 ceased to have any effect once the appellant was arrested. The Designated Judge did not rely on the proclamation under Section 82 in his order.

7. Admissibility of Evidence Collected from Witnesses who have Since Expired:
The court held that the evidence of the ten witnesses who had since expired was inadmissible. The prosecution failed to comply with the legal requirements under Section 299 of the Code and Section 33 of the Evidence Act. The court emphasized that the right to cross-examine witnesses is a fundamental aspect of a fair trial.

Conclusion:
The Supreme Court set aside the impugned order, finding it unsustainable due to lack of jurisdictional facts and failure to comply with the legal requirements under Section 299 of the Code and Section 33 of the Evidence Act. The appeal was allowed, emphasizing the importance of the right to a fair trial and the necessity for strict compliance with procedural requirements.

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