Trial in absentia guidelines in CrPC want to vary for higher amendments of justice: Calcutta High Court

By PTI

KOLKATA: The Calcutta High Court on Friday really useful that amendments be made to the Code of Criminal Procedure (CrPC) for incorporating provisions for trial in absentia of an absconding accused for higher administration of prison justice.

It put aside, as per the prevailing legislation, a decrease courtroom order that allowed deposition of a gang rape sufferer recorded through the trial of three different accused in the identical case for use towards two absconding accused, who have been arrested later.

A division bench presided by Justice Joymalya Bagchi was passing its judgement on a petition by Kader Khan, an accused within the notorious Park Street gangrape case of 2012, that challenged the trial courtroom order permitting the prosecution to make use of deposition of the sufferer, who died in March 2015, towards him through the trial.

He had absconded following the incident and was arrested in September 2016.

The excessive courtroom stated that part 299 of the CrPC gives for an exception to the atypical rule that proof in a prison trial is to be recorded in presence of an accused and permits the proof of a lifeless witness for use towards an absconder in a subsequent trial, however the prosecution has to acquire a previous course from the making an attempt courtroom that the proof of the witnesses is recorded towards the absconder additionally.

“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,” the bench noticed.

The bench, additionally comprising Justice Bivas Pattanayak who concurred with Justice Bagchi’s judgement, stated that this unlucky lack of helpful proof of a rape sufferer arises because of the prevalence of an archaic legislation referring to the trial of absconders which doesn’t recognise the evolution of legislation referring to waiver of honest trial rights of an absconder justifying trial in absentia and emergence of rights of victims, significantly victims of sexual abuse, towards secondary victimisation by giving repeated depositions in courtroom.

It noticed that the discretion of the courtroom to strive an absconder in absentia, when exercised with due care and circumspection, can’t be stated to be incompatible with frequent legislation or Article 6 of the European Convention of Human Rights.

Trial in absentia can be recognised in different frequent legislation international locations, e.g.New Zealand, Canada underneath sure circumstances and classes of offences, the bench noticed, including that in Bangladesh additionally, part 339B of Bangladesh CrPC has been included to supply for trial in absentia.

Noticing the alarming development of abscondence was affecting delay in trials, the Supreme Court had in an order quoted part 339B of the Bangladesh CrPC and noticed that applicable authority might take cognizance of the stated legislation, the division bench stated.

In spite of such remark of the Apex Court no modification has been made to Section 299(1) CrPC to supply for trial in absentia of an absconder which can keep away from unlucky lack of helpful proof on account of dying of a witness as within the current case.

The bench directed the Registrar General of the excessive courtroom to ship a replica 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.

The bench stated that part 299 of the CrPC isn’t solely an exception to the atypical rule that proof in a prison trial is to be recorded in presence of an accused but additionally carves out an exception to the final rule of relevancy engrafted in part 33 of the Evidence Act and permits the proof of a lifeless witness for use towards an absconder in a subsequent trial though the absconder didn’t have alternative to cross-examine such witness within the earlier continuing.

The bench stated that if the proof is so recorded towards the absconder, it might be used towards him within the subsequent trial upon his arrest if the witness is lifeless or incapable of giving proof or isn’t discovered.

The bench famous that within the current case, the prosecutor didn’t make any prayer earlier than the trial courtroom through the earlier trial of the co-accused individuals that the prosecution proof recorded within the stated trial be additionally recorded towards the absconder.