JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA & Anr.

Judgment

J I ' [2009] 8 S.C.R. 591 JAYENDRA VISHNU THAKUR V. STATE OF MAHARAHSTRA AND ANOTHER (Criminal Appeal No. 981 of 2009) MAY 11, 2009 A B [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] PENAL CODE, 1860/EVIDENCE ACT, 18721 TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987: C 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. D E 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 F involved in the appeal. Allowing the appeal, the Court HELD: 1. Even in the United States of America, the G 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 591 H 592 SUPREME COURT REPORTS [2009] 8 S.C.R. A 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 B 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 with the governmental priority to proceed with the trial c 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] D

#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, cross- examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to E 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] F 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 G H ~\... • I .1 - ~ ~ _.,, • • ~ ... 1 -' _.. JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA AND ANR 593 Section 299 of the Code must receive strict interpretation, A 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 B 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 c 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 D 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 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] E F Rustam v. Emperor, AIR 1915 All 411; Mysore v. Sanjeeva, AIR 1956 Mys. 1; Shiv Chander Kapoor v. Amar G Bose, (1990) 1 SCC 234; Manboth v. Emperor AIR 1944 Nag 27 4; 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) H f f 594 SUPREME COURT REPORTS [2009] 8 S.C.R. A 4 sec 41 and Kartarey v. State of UP., (1976) 1 sec 172, referred to. 8 C D 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 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 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 E 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 G 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] F H

#8. An accused ordinarily would not be presumed to JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA AND ANR 595 have waived his right. The procedural principles like A 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 a nullity cannot be brought into effect for invoking the principles like estoppel, waiver or res judicata. [Para 17] [625-E-F] B 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 C 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. [Para 17] [625-G-H] 0

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 E 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 F 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 G 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 H / i ' 596 SUPREME COURT REPORTS [2009] 8 S.C.R. A 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, B 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 arrested formally only on 4th August, 1993 and charges were framed against him only on 15th November, 2003. C 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 D 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 E 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 F 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 G 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] H JAYENDRA VISHNU THAKUR v. STATE OF MAHARAHSTRA AND ANR. 597 Noor Aga v. State of Punjab 2008 (9) SCALE 691; Kartar A