Supreme Court: Witness Testimony Recorded Without S.299 CrPC Order Can't Be Later Used Against Accused Who Absconded

The order Under Section 299 has to conclusively find proof of both the jurisdictional facts for invocation of Section 299, which has to be passed at the first stage; at the committal stage or at the trial stage, when the Accused is found absconding and not when he is subsequently apprehended. If there is only one Accused, there is no question of committing the case for trial if he is absconding and then the evidence could be taken by the Magistrate himself. On the other hand, if after committal, the Accused absconds, again the same procedure has to be followed by the Sessions Court which would go into the two jurisdictional aspects and on finding the same, proceed to examine the witnesses. When there are more than one Accused and one of them absconds, then, after finding proof of the jurisdictional facts; of the flight and the impossibility of immediate arrest, the trial could be proceeded against the Accused brought before the Court and concluded. Then, the testimony of such witness can be relied on in the fresh trial, after arrest of Accused, without giving the Accused an opportunity of cross examination if the Court concludes that the said witness cannot be found or their presence cannot be procured. {Para 10}

Ratio: A formal order under Section 299 Cr.P.C. conclusively finding two jurisdictional facts—that the accused is absconding and there is no immediate prospect of arresting them—is mandatory. Without such an order passed at the earlier stage, prior evidence cannot be relied upon against the accused upon subsequent apprehension.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3566 of 2026 

Decided On: 31.07.2026

Mahendra Singh Vs. The State of Chhattisgarh

Hon'ble Judges/Coram:

J.B. Pardiwala and K. Vinod Chandran, JJ.

Author: K. Vinod Chandran, J.

Citation: 2026 INSC 775,MANU/SC/0776/2026.

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Supreme Court: Absconding Accused Not Entitled To Anticipatory Bail On Sole Ground Of Co-Accused' Acquittal

Although the aforesaid case dealt with quashing of the

proceedings entirely, the rationale applied therein can be

instrumental in the present case, for the reason that the High

Court, by way of the Impugned Order, granted anticipatory bail

to the Accused solely based on the fact that the prosecution failed

to produce any cogent evidence proving the involvement of the

accused persons named in the Subject FIR, in the alleged offence.

The High Court also took note of certain findings recorded in

favour of the Accused by the trial Court in its judgment dated

24.06.2023 acquitting the co-accused. However, the said

consideration is completely erroneous and perverse in an

anticipatory bail application, especially when the Accused had

been absconding for about 6 years and made a mockery of the

judicial process. In view of such circumstances, the Accused

cannot be permitted to encash on the acquittal of the co-accused

persons. Further, the High Court failed to consider that any

finding recorded by the trial Court either against or in favour of

the absconding Accused is wholly irrelevant for the purpose of

deciding the bail application as the prosecution was not required

to produce any evidence against the absconding Accused during

the trial of the co-accused persons, in view of the judgment in

Moosa (supra). {Para 49}

50. It is apposite to mention that granting the relief of anticipatory bail to an absconding accused person sets a bad precedent and sends a message that the law-abiding co-accused persons who stood trial, were wrong to diligently attend the process of trial and further, incentivises people to evade the process of law with impunity.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO…………………………OF 2026

(ARISING OUT OF SLP (CRIMINAL) NO. 15349 OF 2024)

BALMUKUND SINGH GAUTAM Vs STATE OF MADHYA PRADESH AND ANR.

Author: VIJAY BISHNOI, J.

Citation: 2026 INSC 157

DATED: 13th FEBRUARY, 2026.

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Trial in Absentia Now Operational for Proclaimed Offenders under BNSS, 2023 by Maharashtra government notification dated 14 August 2025

 Introduction

In a significant move to tackle delays caused by absconding accused, the Government of Maharashtra has, by notification dated 14 August 2025, exercised powers under Section 356(8) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to operationalize trial in absentia for proclaimed offenders. This move is expected to improve the efficiency of the criminal justice system and curb tactics of evasion by habitual absconders.

Read notification here: Click here

Legal Framework: Section 356(8) and Section 84(1) of BNSS, 2023

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Supreme Court: The right of anticipatory bail is not a part of Article 21 of the Constitution of India

 Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia,   MANU/SC/0239/1995 : 1995:INSC:99 : (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) {Para 71}

7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Anticipatory bail should be granted to absconding accused in exceptional cases

 While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the Accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Anticipatory bail should be granted in exceptional circumstances

 It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail Under Section 438, Code of Criminal Procedure is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J. Mannan and Anr.4). {Para 9}

10. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hindrance to the normal flow of investigation method when called upon to exercise the power Under Section 438, Code of Criminal Procedure, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. 

25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the Rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Anticipatory bail should not be granted as a matter of routine particularly in serious economic offences

 In view of the above settled legal position, it is no more res integra that economic offences constitute a class apart, as they have deep rooted conspiracies involving huge loss of public funds, and therefore such offences need to be viewed seriously. They are considered as grave and serious offences affecting the economy of the country as a whole and thereby posing serious threats to the financial health of the country. The law aids only the abiding and certainly not its resistant's. When after the investigation, a chargesheet is submitted in the court, or in a complaint case, summons or warrant is issued to the Accused, he is bound to submit himself to the authority of law. If he is creating hindrances in the execution of warrants or is concealing himself and does not submit to the authority of law, he must not be granted the privilege of anticipatory bail, particularly when the Court taking cognizance has found him prima facie involved in serious economic offences or heinous offences. In such cases when the court has reason to believe that the person against whom the warrant has been issued has absconded or is concealing himself so that warrant could not be executed, the concerned court would be perfectly justified in initiating the proclamation proceedings against him Under Section 82 Code of Criminal Procedure The High Courts should also consider the factum of issuance of non-bailable warrants and initiation of proclamation proceedings seriously and not casually, while considering the anticipatory bail application of such Accused.

{Para 23}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

Read full judgment here: Click here.

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Supreme Court: Under which circumstances the court should issue non bailable warrant instead of summons for securing presence of accused?

 Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately. {Para 52}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1872 of 2025

Decided On: 09.04.2025

Serious Fraud Investigation Office Vs. Aditya Sarda

Hon'ble Judges/Coram:

Bela M. Trivedi and P.B. Varale, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0479/2025.

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Supreme Court: Filing Of Anticipatory Bail Application Through Advocate Can't Be Considered As Appearance Of Absconding Accused

Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel and Ors. v. State of Gujarat   MANU/GJ/0220/2004, the High Court of Gujarat observed thus:

9. Filing of an Anticipatory Bail Application by the Petitioners-Accused through their advocate cannot be said to be an appearance of the Petitioners-Accused in a competent Court, so far as proceeding initiated Under Section 82/83 of the Code is concerned; otherwise each absconding Accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding Under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely. {Para 19}

(underline supplied)

20. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024.

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation:  MANU/SC/0198/2024.

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Supreme Court: No Anticipatory Bail To Accused Against Whom Non-Bailable Warrant & Proclamation Under Section 82 CrPC Are Pending.

We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the Rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the Accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. {Para 24}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024 

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0198/2024.

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Kerala HC: Whether the Bail Court has jurisdiction to pass orders restraining the Police from arresting accused without passing interim bail orders?

The third referred issue in B.A. No. 4421/2022 (which is the 4th issue mentioned supra) is as to whether the Bail Court has jurisdiction to pass orders restraining the Police from arresting the accused without passing interim bail orders as per Sec.438(1) of the Cr.P.C. In the light of the dictum laid down by the Constitution Bench of the Apex Court in para 52, more particularly, para 52.14, of Sushila Agarwal v. State (NCT, Delhi) & Anr. [MANU/SC/1538/2019 : (2020) 5 SCC 1, p.86] and paras 40 & 41 of Gurbaksh Singh Sibbia v. State of Punjab [MANU/SC/0215/1980 : (1980) 2 SCC 565, pp. 590-591], it is not right and legally correct for an Anticipatory Bail Court to pass orders or interim orders restraining the arrest of the accused or directing not to arrest the accused, etc. However, as categorically held in para 42 of Gurbaksh Singh's case supra [MANU/SC/0215/1980 : (1980) 2 SCC 565, p.591] and various other decisions, the Anticipatory Bail Court, in appropriate cases, will have the discretionary power to issue interim bail order/ad-interim bail order if the Court is convinced that it is so warranted, pending consideration of the main bail application. But, while considering passing of such interim bail orders, the Court should ensure strict conformity with the requirements of Sec.438. The last referred issue in B.A. No. 4421/2022 will also, thus, stand answered.

{Para 109}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. Nos. 4421 and 4983 of 2022

Decided On: 11.04.2023

Anu Mathew Vs. State of Kerala

Hon'ble Judges/Coram:

Alexander Thomas and C.S. Sudha, JJ.

Author: Alexander Thomas, J.

Citation:  MANU/KE/0926/2023.

Read full Judgment here:  Click here.

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Kerala HC: Whether the court should grant anticipatory bail to a accused who has absconded abroad after registration of offence?

So, if in a case it is established and the Court is convinced that the accused/bail applicant had absconded from India and had gone abroad, after fully knowing about the registration of a non-bailable offence against him and thereafter, he files a bail application under Sec.438 of the Cr.P.C. while he is still abroad, then it may not be proper exercise of discretion to grant bail in such a case. This is not to say that the Court has no jurisdiction to entertain a bail application under Sec.438, merely because the accused/applicant is abroad at the time of filing of the application. We are answering this factual premised issue only in the context of the issue as to whether it would be right and proper exercise of discretionary jurisdiction. So also, if such an accused had absconded from India and had gone abroad knowing fully well about the registration of a crime in respect of a non bailable offence, then thereafter, though he may technically have the locus standi to maintain a pre-arrest bail plea, but if as a matter of fact, the Court is convinced that he has absconded and fled away from the law enforcement agencies, etc., then it may not be right and proper exercise of jurisdiction to grant interim bail to such an accused who is abroad. {Para 107}

108. In this regard, the Courts may examine whether the accused was already abroad at the time of registration of crime. Even if the accused had gone abroad after registration of the crime, it may be ascertained whether he had bonafide gone abroad in view of his employment or professional compulsions, etc. General relevant facts should be ascertained by the Court, before reaching factual conclusions, as above.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. Nos. 4421 and 4983 of 2022

Decided On: 11.04.2023

Anu Mathew Vs. State of Kerala

Hon'ble Judges/Coram:

Alexander Thomas and C.S. Sudha, JJ.

Author: Alexander Thomas, J.

Citation:  MANU/KE/0926/2023.

Read full Judgment here:  Click here.

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Supreme Court: Non-Bailable Warrants Shouldn't Be Issued Unless Accused Charged With Heinous Crime Is Likely To Abscond Or Destroy Evidence

 We, however, would allow the present appeal to the extent that the nonbailable warrants issued against Manager Singh are unsustainable and should be quashed. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State.

While there are no comprehensive set of guidelines for the issuance of nonbailable warrants, this Court has observed on several occasions that nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1; Vikas v.State of Rajasthan, (2014) 3 SCC 321. {Para 46}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

SHARIF AHMED AND ANOTHER Vs STATE OF UTTAR PRADESH AND ANOTHER

Author: SANJIV KHANNA, J.

Dated: MAY 01, 2024.

Citation: 2024 INSC 363.

Read full Judgment here: Click here.

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Bombay HC: Procedure which police should follow while filing chargesheet U/S 299 of CRPC against absconding accused

 The only fact is that in the charge sheet it is stated that the

present applicants are absconding and the charge sheet is filed under Section

299 of the Code of Criminal Procedure against them. It is to be noted that

Section 299 of the Code of Criminal Procedure is an enabling provision for

the Courts to record the evidence in absence of an absconding accused. It

does not give any right to police to file charge sheet under that section. The

evidence has been collected against the present applicants also and there is

no such procedure contemplated that for the accused, who would be arrested

at a later point of time, there should be a separate charge sheet. On the point

of absconding of the applicants it is certain from the charge sheet that no

procedure as contemplated under Section 82 of the Code of Criminal

Procedure has been adopted by the Investigating Officer, who is of the rank of

Sub Divisional Police Officer. It is presumed that he has knowledge of the

procedure that is required to be adopted as per the Code of Criminal

Procedure in connection with the absconding accused. All those reports,

which have been referred above, are nothing but the copy paste and it can be

definitely stated that the print out of these reports has been taken at one and

the same time by only changing the date. This is obvious when we see report

dated 13.11.2021 which is given by A.S.I., Police Station, Newasa to S.D.P.O.,

Shevgaon. Thereafter, the next report is by Police Inspector, Police Station,

Newasa dated 22.11.2021. While making copy paste he has not changed the

date below ek- lfou; lknj. Though while making signature he has given the

date but still it has also correction. There is no much gap between the date

just above his signature; yet, he has not noticed that the blunder has been

committed while doing copy paste. Wordings have also not been changed in

all these reports. With whom the inquiry was made in respect of the

absconding accused, whose statements have been recorded, is absolutely not

clear. It is unfortunate that such kind of activities are undertaken by police

and, therefore, the faith in the Department is decreasing. When the said

report itself is unbelievable, it cannot be said that the applicants are

absconding. The Investigating Officer has not explained as to why he has not

undertaken the procedure under Section 82 of the Code of Criminal

Procedure. Interesting point to be noted is that on 10.01.2021 the District

Superintendent of Police, Ahmednagar appears to have given directions, as to

how the investigation is to be made in respect of absconding accused. Mere

attachment of the same without taking any step as contemplated in those

guidelines it is absolutely not fruitful. The Police Officer of the rank of Sub

Divisional Police Officer has not followed the said guidelines issued by his

own District Superintendent of Police. Under such circumstance, the said

point of objection cannot be appreciated. The interim protection granted

earlier to the applicants deserves to be confirmed. {Para 10}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

ANTICIPATORY BAIL APPLICATION NO.1524 OF 2021

MANDA SUNIL PAWAR AND OTHERS Vs THE STATE OF MAHARASHTRA AND ANOTHER

CORAM : SMT. VIBHA KANKANWADI, J.

PRONOUNCED ON : 08th APRIL, 2022

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Whether Absconder/ Proclaimed Offender are Entitled To get Anticipatory Bail?

 In this regard it is relevant to rely upon the judgment passed by

Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR 2021 SC 5125 where in similar facts since proceedings under Sections 82 and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and reiterated that if anyone has been declared as absconder/ proclaimed offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory bail. The relevant paragraphs of the judgement in Prem Shankar Prasad (supra) are reproduced as under:

“7.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent No. 2-Accused is absconding and even the proceedings Under Sections 82-83 of Code of Criminal Procedure have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent No. 2-Accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even

the High Court has just ignored the factum of initiation of proceedings Under Sections 82-83 of Code of Criminal Procedure by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

12. In view of above discussion the applicant is not entitled for

anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail.

ALLAHBAD HIGH COURT

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438

CR.P.C. No. - 20357 of 2021

Applicant :- Yogendra Kumar Mishra

Opposite Party :- State of U.P. and Another

Delivered on 06.04.2022

Bench: Hon'ble Saurabh Shyam Shamshery,J.

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Whether court can convict an accused for an offence U/S 397 of IPC if he has not used weapon during Robbery?

 12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon and the word used in Section 398 IPC is ‘offender is armed with any

deadly weapon’. Therefore, for the purpose of attracting Section 397 IPC the ‘offender’ who ‘uses’ any deadly weapon Section 397 IPC shall be attracted.

In light of the above observations and the law laid down by this

Court in the aforesaid two decisions the case on behalf of the

accused in the present appeals is required to be considered. Even

as per the case of the prosecution and even considering the evidence on record it can be seen that the present accused A1 and A3 are not alleged to have used any weapon. The allegation of use of any weapon was against Benny and Prabhakaran. Therefore, in absence of any allegations of use of any deadly weapon by the appellants herein – Accused Nos.1 and 3 Section 397 IPC shall not be attracted and to that extent the Learned Counsel appearing on behalf of the appellants – accused are right in submitting that they ought not to have been convicted for the offence punishable under Section 397 IPC.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

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Whether court can try three accused of dacoity if two accused are absconding?

  Now so far as the submission on behalf of the appellants –

accused that even no case is made out for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery.

Merely because some of the accused absconded and less than five

persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’. Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under

Section 395 IPC. {Para 16}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

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Whether convicted accused can claim acquittal if absconding accused is acquitted in a separate trial?

 Now so far as the submission on behalf of the accused that in

the subsequent trial one of the accused – Benny came to be

acquitted and therefore the benefit of acquittal of Benny must be

given to the present accused and thereafter they may be acquitted is concerned the same has no substance. At the outset, it is required to be noted that the accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also required to be noted that Benny came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of Benny, it appears that PW1 during the trial in case of Benny turned hostile. In the case of Benny only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case PW1 not only supported the case of prosecution but as many as 15

witnesses came to be examined. Therefore, merely because in the

subsequent split trial the Benny came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants –

accused as the prosecution has been successful in proving the case against the present accused. At this stage, the decision of this Court in the case of Amrita vs. State of M.P., (2004) 12 SCC 224;

Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381 and

Raja vs. State, (2013) 12 SCC 674 are required to be referred to. In the case of Amrita (Supra), it is observed and held that mere

acquittal of some of the accused on the same evidence by itself does not lead to a conclusion that all deserve to be acquitted in case appropriate reasons have been given on appreciation of evidence both in regard to acquittal and conviction of the accused. Similar view has been expressed in case of Raja (Supra) and Gangadhar (Supra). Therefore, on considering the facts narrated hereinabove which led to acquittal in case of Benny, the present accused against whom the prosecution has been successful in proving the case by leading the evidence, the appellants – accused are not to be acquitted. {Para 17}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

Author: M. R. Shah, J.

Dated: October 29, 2021

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Questions and answers on law Part 24

 Q 1:- Whether court can direct attachment of property of Judgment debtor if court passes decree for rent or mesne profits but rent or mesne profits are not determined?

Ans:- O 21 R 42.  of CPC Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.—Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has ascertained, be attached, as in the case of an ordinary decree for the payment of money.

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Supreme court: Procedure to be followed by the court if accused remains absent in criminal appeal

 We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.

15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there if nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.

16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again , till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 82 of 1995.

Decided On: 09.07.1996

Bani Singh  Vs. State of U.P.

Hon'ble Judges/Coram:

A.M. Ahmadi, C.J.I., N.P. Singh and S.V. Manohar, JJ.

Citations: 1996 SCC (4) 720, JT 1996 (6) 287,MANU/SC/0615/1996

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