Questions and answers on law (Part 76)

Q 1:- If five accused are charged for the offence and two are absconded how judge will decide the case?

 Ans:- In cases with five accused where two are absconding, the judge typically proceeds with the trial against the three present accused by splitting the trial, ensuring speedy justice for those in custody.

This approach avoids stalling the entire case due to absconders, as affirmed in Supreme Court rulings and procedural norms under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC.

Standard Procedure

The court first issues summons or warrants to the absconding accused under BNSS Section 84 (formerly CrPC Section 82).​

If they fail to appear, they may be declared proclaimed offenders after proclamation publication.​

The trial against present accused continues separately, often termed a "split-up trial," while evidence against absconders can be recorded under BNSS Section 355 (CrPC Section 299) if no immediate arrest prospect exists.

Options for Absconders

For proclaimed offenders evading trial with no arrest likelihood, BNSS Section 356 enables full trial in absentia after 90 days from charge framing, strict preconditions like warrants and public notices, and state-appointed counsel.

However, courts usually opt for split trials in multi-accused cases to prioritize those available, avoiding multiplicity unless in-absentia conditions fully met.

Practical Implications

Post-trial judgment against present accused binds unless appealed; absconders face separate proceedings upon capture, using prior evidence if witnesses unavailable.

This provides Article 21 rights to speedy trial to present accused.

2) Whether extension under Section 29A(4) of Arbitration Act lies before the High Court or the Civil Court, irrespective of who appointed the arbitrator?

Ans: The dispute arose from a Memorandum of Family Settlement (11.01.2021) among the Chowgule family. Arbitration was invoked, and owing to delay, respondent no.2 sought extension under Section 29A before the Commercial Court, while also seeking appointment under Section 11 before the Hon’ble High Court of Bombay at Goa. The Commercial Court extended time, but the Hon’ble High Court’s Division Bench held only the High Court could extend mandate when arbitrator was appointed under Section 11.

Ratio: The Hon’ble Supreme Court held that once appointment under Section 11 is made, the referral court becomes functus officio. Extension or substitution under Section 29A lies before the “Court” defined in Section 2(1)(e), i.e., Principal Civil Court of original jurisdiction or High Court with ordinary original civil jurisdiction.​

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