REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  981  OF 2009 (Arising out of SLP (Crl.) No. 6374 of 2007)

Jayendra Vishnu Thakur …. Appellant

Versus

State of Maharahstra and another …. Respondents

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Interpretation  of  the  provisions  of  Section  299  of  the  Code  of  

Criminal Procedure, 1973 (for short ‘the Code’), Section 33 of the Indian  

Evidence Act, 1871 as also Section 14(5) of the Terrorist  and Disruptive  

Activities (Prevention) Act, 1987 (for short ‘the TADA’) is involved in this  

appeal which arises out of a common order dated 6th March, 2007 passed by

the Designated Court (TADA), Pune, in Application Exh. 1118 and 1227 in  

TSC No. 2/1996, 1/1997and 2/1997.   

3. The said question arises in the following fact situation.

One  Suresh  Narsinh  Dube  was  shot  dead  at  Nallasopara  Railway  

Station in the suburbs of Mumbai  on 9th October,  1989.   The impleaded  

respondent  herein,  the  brother  of the deceased,  filed a  complaint  petition  

with regard to the incident.  Appellant absconded.  

A proclamation under Section 82 of the Code was thereafter issued on  

9th February,  1993  declaring  the  appellant  as  a  proclaimed  offender.  

Subsequently,  the  said  proclamation  was  also  published  in  different  

newspapers on various dates.  

In  connection  with  the  said  occurrence  initially  12  persons  were  

charge-sheeted  upon  completion  of  investigation  on  27th August,  1993,  

wherein  eight  persons,  including  the  appellant,  were  shown  to  be  

absconding. Appellant and other accused were also booked under TADA.   

Indisputably, in connection with a case arising out of FIR Nos. 140-

144 of 1993 the appellant was arrested in Delhi on 23rd July, 1993.  By a  

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letter dated 1st September, 1993 the Investigating Officer in the present case  

informed the Designated Judge, TADA Court at Mumbai in regard to the  

appellant’s arrest in the Delhi case.   

4. Appellant  was arrested by the Maharahstra  Police on 23rd October,  

1993 in connection with FIR No.3/1992 and was produced before the Chief  

Judicial  Magistrate,  Thane  on  24th October,  1993  and  was  remanded  to  

police custody till 20th November, 1993.  He was again shown to have been  

arrested on 20th  November, 1993 in two cases ; one relating to FIR No.  

237/1992 of Manikpur Police Station and the other in FIR No.161 of 1992 of  

Virar Police Station.  He was in judicial custody till 21st December, 1993.  

5. On a Special  Leave Petition (Crl.)  Nos.  643-646 having been filed  

before this Court by the appellant and others, this Court by its order dated  

23rd November, 1993 inter alia directed splitting up of the case with regard  

to  the  absconding  accused.   Charges  in  the  matter  were  framed  by  the  

Designated Judge on 30th December, 1993.   

6. On an application filed by the Public Prosecutor under Section 299 of  

the Code, an order was passed by the Designated Judge on 1st January, 1994.

 7. The  State  of  Maharashtra  filed  a  writ  application  before  the  High  

Court  of  Delhi  for  securing  the  presence  of  the  appellant   in  the  cases  

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pending in the State of Maharashtra including the case in question, which by  

reason of an order dated 19th December, 1994 was dismissed.

On or about 11th July, 1995 an application under Section 83 of the  

Code was filed by the Investigating Officer through the Public Prosecutor  

wherein it was admitted that the appellant had not been absconding.   

8. On  an  application  moved  by  the  State  of  Maharashtra  to  the  

Designated Judge, TADA, Delhi for transfer of the appellant to Maharashtra,  

the Designated Judge by his order dated 21st July, 1995 refused to do so in  

view of the order passed by the High Court on 19th December, 1994.   

Appellant moved an application for production warrant for recording  

his plea against charges which was dismissed on 25th July, 1995.   

Yet  again he filed an application on 21st August,  1995 praying for  

issuance of transfer warrant.

9. Indisputably  10  witnesses  were  examined  during  the  period  6th  

November,  1995  to  22nd January,  1997,  who  have  since  expired.   Their  

names, respective dates of their deposition and dates of death, are as under:-  

PW  No.  

Name of the Witness  Date of  deposition

Date of    death

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 36 Parhuram Sonu Kawale 6.11.1995 29.1.2004   60 Bharat Jaggubhai Rathod 18.12.1995 22.6.2004   42 Sakharam Samji Kadu 14.11.1995 13.2.2003   69 Madhukar Dattatraya Paradkar 18.1.1996 19.3.2001   25 Sitaram Dhari Yadav 17.10.1995 Dec. 2001   81 Aruta Malleshwar Rao 20.2.1996 1.5.2001   72 Hanumanta Raghunath Jadhav 20.1.1996 5.9.1997   77 Shivajirao Vithalrao Barawkar 14.2.1996 28.7.2003   88 Sham Maruti Bingawade 31.1.1997 25.4.1997   83 Sayajirao Bapusahab Dubal 22.1.1997 14.10.2002

Appellant  was formally arrested in  the present  case  on 4th August,  

1997.   A  supplementary  charge  sheet  was  filed  on  19th August,  1997.  

Charges were framed against six accused persons including the appellant on  

15th November, 2003.

In  the  said  proceeding  two  applications  were  filed  by  the  Senior  

Public  Prosecutor  on  25th September,  1996  and  11th October,  2006  for  

exhibiting the depositions of PW-36 and nine other witnesses, who had since  

expired, which by reason of the impugned order have been allowed.

Aggrieved by the said order, the appellant is before us.

10. Mr. Manoj Goel, learned counsel appearing on behalf of the appellant,  

inter alia would submit :-  

1. The impugned order is wholly unsustainable as the Designated  

Judge,  TADA,  in  its  order  dated  1st January,  1994  on  the  

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application  under  Section  299  of  the  Code  did  not  assign  

sufficient  and  cogent  reasons  which  would  satisfy  the  

jurisdictional  facts  contained in first  part  thereof or  the legal  

requirements contained in the second part.  

2. Since the  jurisdictional  facts  require  proving of  not  only the  

abscondance  of  an  accused  but  also  a  situation  where  

immediate prospect of his arrest was absent and which being a  

condition precedent; and as in the facts and circumstances of  

this case the appellant’s presence could have been obtained as  

he was under arrest in a Delhi case which fact was known to the  

prosecution, the impugned order cannot be sustained.  

3. Right to confront a witness being a fundamental right in terms  

of Article 21 of the Constitution of India and Section 299 of the  

Code being an exception thereto,  the same should be strictly  

construed.   

4. Admittedly appellant having been arrested by the Delhi police  

on 23rd July, 1993 and in all subsequent applications as also in  

the letters  the prosecution it  having not  been shown that  the  

appellant  had  been  absconding,  the  order  of  the  learned  

Designated Judge dated 1st January, 1994 must be held to be  

illegal and without jurisdiction.  

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5. The legal requirements to attract the provisions of Section 33 of  

the Evidence Act having not been complied with by prosecution  

as no finding has been arrived at by the designated court that  

the materials  brought  on record were  sufficient  to attract  the  

same.

6. The  requirements  of  law  for  the  purpose  of  issuance  of  a  

proclamation  in terms of  Section 82 of  the  Code being only  

‘reason  to  believe’  and  the  requirement  for  exercise  of  

jurisdiction by the Court under Section 299 of the Code being  

“proved”  and,  thus,  only  because  an  accused  had  been  

absconding the same by itself could not have been a ground for  

invoking  the  jurisdiction  under  Section  299  of  the  Code  in  

absence  of  any  finding  that  not  only  the  appellant  was  

absconding but he has intentionally been avoiding arrest.  

7. The  purported  evidence  of  the  ten  witnesses  who  had  been  

examined  in  the  first  phase  of  trial  having  been  collected  

illegally, the same was not admissible in evidence in the present  

case  and  in  that  view of  the  matter  the  impugned judgment  

cannot be sustained.  

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11. Mr. Nafade, learned counsel appearing on behalf of he State and Mr.  

Sanjay  Jain,  appearing  on  behalf  of  the  respondents,  on  the  other  hand,  

would contend:

1) Section 299 of the Code, Section 33 of the Evidence Act and  

Section 14(5) of TADA being cognate provisions, each one of  

them has a distinct role to play, although the provisions thereof  

may have been overlapping to some extent.   

2) TADA being a special statute and having an overriding effect  

on other statutes as would appear from Section 25 thereof, sub-

section  (5)  of  Section  14  thereof  must  also  be  held  to  have  

overriding  effect  over  the  provisions  of  Code  of  Criminal  

Procedure and/or the Indian Evidence Act and in that view of  

the matter the order dated 1st January, 1994 is unassailable  

3) Non  Recording  of  reasons,  in  any  event,  being  only  an  

irregularity, the provisions of Section 465 of the Code would be  

attracted.

4) Appellant  at  all  the  material  times being aware of  the entire  

proceeding and having taken part therein from time to time, he  

cannot at this stage be permitted to turn around and allowed to  

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raise a contention in regard to the applicability or otherwise of  

an order in the previous case.

5) Charges having been framed against the appellant in terms of  

an  order  dated  20th December,  1993  in  respect  whereof  he  

despite being aware but having not availed the benefit of cross-

examining the witnesses in terms of Section 14(5) of TADA at  

an  appropriate  stage,  is  estopped  and  precluded  from  

questioning the legality or validity of the said order dated 1st  

January, 1994.  

6) Sub-section  (5)  of  Section  14  of  TADA  does  not  require  

proving of foundational facts beyond all reasonable doubts and  

in the event, the satisfaction arrived at by the Court on the basis  

of the material evidences on record, the legal requirements must  

be treated to have been satisfied.   

7) Sub-section (5) of Section 14 of TADA imposes a reasonable  

restriction on the right of the accused and in any event as the  

constitutionality  of  the said provision is  not  in question,  this  

Court should not exercise its discretionary jurisdiction  

Appellant is being prosecuted under TADA.  The Act was enacted to  

make special provisions for the prevention of, and for coping with, terrorist  

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and disruptive activities and for matters connected therewith or incidental  

thereto, Part II whereof provides punishments for, and measures for coping  

with, terrorist and disruptive activities.   

Part  III  of  TADA empowers  the  Central  Government  or  the  State  

Government to constitute one or more Designated Courts for such area or  

areas or such case or class or group of cases as may be specified therein.  

12. A Designated Judge while holding trial under the Act indisputably has  

the power to determine all questions including the question as regards his  

own  jurisdiction.   Section  11  of  TADA  provides  that  every  offence  

punishable under any provision of the said Act shall be triable only by the  

Designated Court within whose local jurisdiction it was committed.  Section  

12 empowers the Designated Court to try any other offence, at the same trial,  

with which the accused may be charged if the offence is connected with such  

other offence.    

Section 14 provides for the procedure and powers of the Designated  

Court.   Sub-section (5) of Section 14 provides for a non-obstante clause in  

terms  whereof  notwithstanding  anything  contained  in  the  Code,  a  

Designated Court may, if it thinks fit and for reasons to be recorded by it,  

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proceed with the trial in the absence of the accused or his pleader and record  

the evidence of any witness, subject to the right of the accused to recall the  

witness for cross-examination.   Section 25 of TADA also provides for a non  

obstante  clause  stating  that  the  provisions  thereof  or  any  rule  made  

thereunder  or  any  order  made  under  any  such  rule  shall  have  effect  

notwithstanding anything inconsistent therewith contained in any enactment  

or in any instrument having effect by virtue of any enactment other than the  

Act.  

13. We  must  at  this  stage  also  consider  the  effect  of  the  relevant  

provisions of the Code.

 Chapter  XXIII  of  the  Code provides  for  evidence  in  inquiries  and  

trials.   Section  273 of  the  Code mandates  that  all  evidence  taken  in  the  

course of the trial or other proceeding shall be taken in the presence of the  

accused or, when his personal attendance is dispensed with, in the presence  

of his pleader, which was specifically provided.   

Section 299 of the Code expressly provides for the power of the court  

to record evidence in absence of the accused in the following term :-

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“299.  Record  of  evidence  in  absence  of  accused:- (1) If it is proved that an accused person  has  absconded,  and  that  there  is  no  immediate  prospect of arresting him, the Court competent to  try or commit for trial, such person for the offence  complained of, may, in his absence, examine the  witnesses  (if  any)  produced  on  behalf  of  the  prosecution, and record their depositions and any  such deposition may, on the arrest of such person,  be given in  evidence against  him on the inquiry  into,  or  trial  for,  the  offence  with  which  he  is  charged,  if  the  deponent  is  dead or  incapable  of  giving evidence or cannot be found or his presence  cannot  be procured without  an amount of  delay,  expense  or  inconvenience  which,  under  the  circumstances of the case, would be unreasonable.

(2)  If  it  appears  that  an offence punishable  with  death or imprisonment for life has been committed  by  some  person  or  persons  unknown,  the  High  Court  or  the Sessions Judge may direct  that  any  Magistrate of the first class shall hold an inquiry  and examine any witnesses who can give evidence  concerning  the  offence  and  any  depositions  so  taken may be given in evidence against any person  who is subsequently accused of the offence, if the  deponent is dead or incapable of giving evidence  or beyond the limits of India.”

It is neither in doubt nor in dispute that sub-Section (1) of the said  

provision is in two parts – the first part provides for proof of jurisdictional  

fact in respect of abscontion of an accused person and the second that there  

was no immediate prospect of arresting him.  

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In the event, an order under the said provision is passed, deposition of  

any witness taken in absence of an accused may be used against him if the  

deponent is dead or incapable of giving evidence or cannot be found or his  

presence  cannot  be  procured  without  any  amount  of  delay,  expense  or  

inconvenience  which,  under  the  circumstances  of  the  case,  would  be  

unreasonable.  

Now, we must also take notice of Section 33 of the Evidence Act,  

1872, which reads as under :-

33.  Relevancy of  certain evidence for proving,  in  subsequent  proceeding,  the  truth  of  facts  therein stated. - Evidence given by a witness in a  judicial  proceeding,  or  before  any  person  authorized  by  law  to  take  it,  is  relevant  for  the  purpose  of  proving,  in  a  subsequent  judicial  proceeding, or in a later stage of the same judicial  proceeding, the truth of the facts which it  states,  when the witness is dead or cannot be found, or is  incapable of giving evidence, or is kept out of the  way by the adverse party, or if his presence cannot  be obtained without an amount of delay or expense  which,  under  the  circumstances  of  the  case,  the  Court considers unreasonable; Provided-- that the  proceeding was between the same parties or their  representatives in interest; that the adverse party in  the first proceeding had the right and opportunity  to cross-examine; that the questions in issue were  substantially the same in the first as in the second  proceeding.  Explanation.--A  criminal  trial  or  inquiry  shall  be  deemed  to  be  a  proceeding  between the prosecutor and the accused within the  meaning of this section.

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The right of an accused to watch the prosecution witnesses deposing  

before a court of law indisputably is a valuable right.   

The  Sixth  amendment  of  the  United  States  Constitution  explicitly  

provides therefor, which reads as under :-

“ In  all  criminal  prosecutions,  the  accused  shall enjoy the right to a speedy and public trial, by  an impartial jury of the State and district wherein  the  crime  shall  have  been  committed,  which  district shall have been previously ascertained by  law, and to be informed of the nature and cause of  the accusation; to be confronted with the witnesses  against  him  ;  to  have  compulsory  process  for  obtaining witnesses in his favour, and to have the  Assistance of Counsel for his defence.”

We may, however, notice that such a right has not yet been accepted  

as a fundamental right within the meaning of Article 21 of the Constitution  

of India by the Indian courts.  In absence of such an express provision in our  

constitution,  we have to proceed on a premise that such a right is only a  

statutory one.  The larger question, namely as to whether right to confront a  

witness by an accused is a fundamental right or not, in our opinion, need not  

be gone into by us in these proceedings as the appellant does not question  

the constitutionality of either Section 299 of the Code or Section 14(5) of  

TADA or Section 33 of the Evidence Act.   

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In the context of our constitutional scheme; fundamental rights are not  

absolute being subject  to reasonable restrictions.   There lies a distinction  

between Bill of Rights contained in the Constitution of the United States and  

the Fundamental Rights provided for in the Indian Constitution.   

In Jack R. Goldberg  v.  John Kelly [25 L. Ed 2d 287 ] it was inter alia  

held  that  even  in  a  civil  proceeding  the  6th Amendment  is  applicable,  

stating:-

" The fundamental requisite of due process of  law  is  the  opportunity  to  be  heard."  Grannis  v.   Ordean, 234 U.S. 385, 394, 58 L Ed 1363, 1369,  34,  S Ct 779 (1914).  The hearing must  be "at  a  meaningful  time  and  in  a  meaningful  manner."  Armstrong v. Manzo, 380 U.S. 545, 552, 14 L Ed  2d  62,  66,  85  S  Ct  1187  (1965).  In  the  present  context,  these  principles  require  that  a  recipient  have  timely  and  adequate  notice  detailing  the  reasons  for  a  proposed  termination,  and  an  effective opportunity to defend by confronting any  adverse  witnesses  and  by  presenting  his  own  arguments and evidence orally.”  

The Court further relied on the following observations from  Greene  

v.  Mc Elorey [ 3 L Ed 2d 1377 ].  

"Certain  principles  have  remained  relatively  immutable  in  our  jurisprudence.  One of  these  is  that,  where governmental  action seriously injures  an individual, and the reasonableness of the action  depends  on  fact  findings,  the  evidence  used  to  

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prove the Government's case must be disclosed to  the  individual  so  that  he  has  an  opportunity  to  show that it  is untrue. While this is important in  the case of documentary evidence, it is even more  important  where  the  evidence  consists  of  the  testimony of individuals whose memory might be  faulty  or  who,  in  fact,  might  be  perjurers  or  persons  motivated  by  malice,  vindictiveness,  intolerance,  prejudice,  or  jealousy.  We  have  formalized these protections in the requirements of  confrontation  and  cross-examination.  They  have  ancient  roots.  They  find  expression  in  the  Sixth  Amendment. . . . This Court has been zealous to  protect these rights from erosion. It has spoken out  not only in criminal cases, . . . but also in all types  of  cases  where  administrative  .  .  .  actions  were  under scrutiny."

Welfare  recipients  must  therefore  be  given  an  opportunity  to  confront  and  cross-examine  the  witnesses relied on by the department.”

We may, however, notice that even in the United States of America,  

the 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  

accused can  be asked to  go outside the  court  room so long he does  not  

undertake to behave in an orderly manner.  It was so held in State of Illinois  

v.  William Allen reported in [ 397 US 337 ].

An accused is,  however,  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 which would be defeated by conduct of the  

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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.   

 The question which arises for consideration is whether the same will  

take  within  its  umbrage  the  said  principle.    We  will  examine  the  said  

question a little later.    We will proceed on the premise that for invocation  

of the provisions of Section 299 of the Code the principle of natural justice  

is inbuilt in the right of an accused.

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 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 curved  

out, the statute must say so expressly or the same must be capable of being  

inferred by necessary implication.

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There  are  statutes  like  the  Extradition  Act,  1962  which  excludes  

taking of evidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. Union of  

India,  [ (2008) 2 SCC 417 ].

14. It is also beyond any cavil that the provisions of Section 299 of the  

Code  must  receive  strict  interpretation,  and,  thus,  scrupulous  compliance  

thereof is imperative in character.

It is a well known principle of interpretation of statute that any word  

defined  in  the  statutory  provision  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 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 of the  

evidence is imperative in character.   

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15. Keeping in view the aforementioned principles in mind we may notice  

at this stage the application filed by the prosecution on 1st January, 1994 and  

the order passed thereon on the same date, which are as under :-

“ The application on behalf of the prosecution  herein pray that :-

a. That this Hon’ble Court has framed the charge against the  accused nos. 1 to 12 and absconding accused nos. 1 to 3 on  30.12.1993  and  the  case  is  postponed  for  hearing  and  recording of the evidence of the witnesses from today i.e. 1st  January, 1994.

b. That  the  evidence  which  is  to  be  led  against  the  present  accused nos.  1 to 12 is  also in respect  of the absconding  accused nos. 1 to 8.

c. That it is proved that it has become necessary to record the  evidence of the witnesses against the absconding accused in  their absence.  

It is, therefore, prayed that the order may be  passed  to  record  the  evidence  against  the  absconding accused nos. 1 to 8 in their absence.

 Pune (Vijay Sawant) Date – 1.1.1994  Special P.P.”

“ ORDER

After  splitting  up  the  case  with  regard  to  the  absconding  accused  as  per  the  directions  of  the  Honourable Supreme Court in its order dated 23rd  November, 1993 in petitions for Special Leave to  Appeal  Nos.  1643-46/93  with  SLP  (Crl.)  No.  1972-73/93, 2230, 1936, 1900-01/93, this Court is  proceeded with the present case and has framed the  

19

charge against accused Nos. 1 to 12.  However, as  these  twelve  accused  have  been  charged  along  with  the  absconding  accused,  as  shown  in  the  charge-sheet, the prosecution can adduce evidence  relating to the absconding accused so far relevant  the  charge  and  the  decision  of  the  case.   Eight  accused persons have been shown as absconding  accused.  As the absconding accused are not before  the  Court  the  question of  their  identity  will  also  arise  and  it  will  be  necessary  to  give  them  an  opportunity  to  cross-examine  the  witnesses.  Therefore, it would not be just and proper to use  the  evidence  to  be  recorded  in  the  present  case  against  the  absconding  accused  and  he  evidence  will  be  required  to  be  recorded  separately  as  to  enable  them  to  cross-examine  the  witnesses.  However,  if  any  deponent  dies  or  becomes  incapable of giving evidence or cannot be found or  his  presence  cannot  be  procured  without  an  amount of delay, expense or inconvenience which  under  the  circumstances  of  the  case  would  be  unreasonable  then  the  evidence  recorded  in  this  matter  may  be  used  as  per  the  provisions  of  Section 299 of the Criminal Procedure Code.

(D.S. Zonting)                                 Judge, Designated Court, Pune

Dated 1st January, 1994                                         ”  

16. The application having been filed by the Special  Public Prosecutor  

and the order having been passed on the same date it is beyond any cavil that  

before the Court apart from the fact that a proclamation under Section 82  

had been issued against the appellant, no other material was placed.  It now  

stands accepted that even much prior thereto, i.e., as far back as 23rd July,  

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1993,  the  appellant  was  arrested.   The  said  fact  was  known  to  the  

investigating officer.  By a letter dated 1st September, 1993 the Investigating  

Officer himself had informed the Court in regard thereto.

It also now stands admitted that at least in two cases appellant had  

been arrested and produced before the Courts in Maharashtra and in fact had  

been remanded to the police custody.   It is furthermore neither in doubt nor  

in dispute that whereas in one of those cases the appellant was arrested on  

20th November,  1993 and on the  same date  he  was shown to  have been  

arrested and taken in police custody once again in another case.   

These facts were required to be brought to the notice of the Court.  

The Court’s attention should have also been drawn to the aforementioned  

letter dated 1st September, 1993.   

Had these facts been brought to the notice of the court, could it pass  

the impugned order is the question?   

We  may  assume  that  the  court  might  have  done  so.   But  for  the  

purpose of passing an order, be under Section 299 of the Code or sub-section  

(5) of Section 14 of TADA, it was required to apply its mind as regards the  

existence of the jurisdictional fact.  The materials on record were required to  

21

be discussed, reasons therefor were required to be recorded.  How despite  

the fact that the appellant had already been custody of the Delhi Police viz-a-

iviz the Maharashtra Police, he could be termed to be an absconder and there  

was  no prospect  of  securing his  immediate  presence,  was required  to  be  

considered.   

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 learned 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.  

Section 299 of the New Code corresponds to Section 512 of the Old  

Code.   The  applicability  of  the  aforementioned  provisions  came  up  for  

consideration before some of the High Courts.   

We will notice a few of them.   

In  Rustam  v.  Emperor, [ AIR 1915 All 411 ], the Allahabad High  

Court held as under:-

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“It is clear from the language of the section that the  Court which records the proceedings under it, must  first of all record an order that in its opinion, it has  been proved that  the accused has absconded and  that there is no immediate prospect of his arrest.  No such finding appears on the file of 1897 ; in  fact  no evidence was taken in that year  to show  that the present appellant was absconding and that  there  was  no  immediate  prospect  of  his  arrest.  The  evidence  of  1897  being   in-admissible,  the  conviction  of  the  appellant  on  the  basis  of  such  evidence cannot stand.”

To  the  same  effect  is  the  decision  of  the  Madras  High  Court  in  

Mysore  v.  Sanjeeva, [ AIR 1956 Mys. 1 ] wherein it was held :-

“(14) The  question  also  arises  as  to  what  constitutes  absconding.  The  word  ‘absconder’  is  not defined in the Code of Criminal procedure.  It  occurs  in  other  provisions  of  criminal  law  e.g.  Sections 87 and 90(a),  Cr.  P.C. and Section 172  I.P.C.   From  the  context  and  object  of  these  provisions  an  absconder  may  be  said  to  be  one  who  intentionally  makes  himself  inaccessible  to  the processes of law.  Hence it is not enough if it is  shown that it was not possible to trace him soon  after the occurrence.

It  has  also  to  be  established  that  he  was  available at or about the time of the commission of  the alleged offence and ceased to be available after  the commission of the offence,  before he can be  treated  as  an  absconder.   Similarly,  it  has  to  be  established that there is no immediate prospect of  arresting  the  accused.   Then  the  question  arises,  whether  it  is  enough  if  the  material  on  record  shows that these conditions have been fulfilled or  whether  it  is  necessary  that  the  recording  Court  

23

should explicitly state that it has so satisfied itself  before the deposition is actually recorded.”   

Such jurisdictional facts must be existing on this date of passing of the  

order.    

In  Shiv Chander Kapoor  v.  Amar Bose, [(1990) 1 SCC 234] this  

Court held:-

“12. We  have  no  doubt  that  the  language  of  Section 21 of the Act clearly forbids the Controller  from embarking on an enquiry beyond the ambit of  Section  21  itself  which  may  impinge  into  the  sphere of Section 14 of the Act or any other law.  We  have  no  hesitation  in  holding  that  it  is  the  existence of the aforesaid jurisdictional facts at the  time  of  grant  of  permission  to  create  a  limited  tenancy which alone is required to be determined  by  the  Controller,  if  and  when,  validity  of  his  permission is assailed at a subsequent stage. This  being  the  scope  of  his  enquiry  while  granting  permission, the scope of enquiry at the subsequent  stage  cannot  be  wider.  For  this  reason  any  objection  to  the  validity  of  the  permission  on  a  ground  other  than  non-existence  of  the  jurisdictional  facts  at  the  time  of  grant  of  permission is untenable and beyond the scope of  the Controller’s power to examine validity of his  earlier  permission  before  directing  restoration  of  possession to the landlord under Section 21 of the  Act.”

In  Manboth   v.  Emperor, [ AIR 1944 Nag 274 ],  Nazir Ahmad  vs.  

Emperor  [AIR  1936  PC  253:  17  Lah.  629]  and  Rustam (supra)  was  

followed.   

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We must, however, notice that in Bhagwati  v.  Emperor, [ AIR 1918  

All 60 ], the Allahabad High Court held :-

“ The  section  nowhere  says  that  the  Magistrate  must  record  a  finding.   We  wish  to  make it quite clear that in our opinion a Magistrate  before recording evidence under S. 512 ought to be  satisfied  that  the  accused is  absconding and that  there is no immediate prospect of his arrest, and it  is certainly advisable that he should recite in his  order that he finds this to be the case.  However, in  this  case  we  find  that  the  Magistrate  had  clear  evidence  that  the  accused  were  absconding,  and  evidence  from  which  the  Magistrate  might  reasonably  infer  that  there  was  no  immediate  prospect of their arrest.  In his order he expressly  states that he is taking the evidence under S. 512.  The presumption is that the Magistrate did his duty  and  did  not  record  the  evidence  under  S.  512  unlawfully.  In our opinion the mere fact that the  learned  Magistrate  did  not  recite  a  finding  that  there was no immediate prospect of the arrest of  the  accused  does  not  render  the  evidence  inadmissible.”   

We, with utmost respect, do not agree.  There is no such presumption  

in law.  An order of that nature must exhibit total application of mind.  A  

judicious approach is imperative.  For the said purpose the courts must bear  

in mind that an accused has a Fundamental Right as also Human Right.  

The term ‘proved’ having been used in the Section, providing for an  

exception to the general rule, was required to be strictly construed.  It was  

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not an ipse dixit of the Magistrate that would be sufficient for attracting an  

extra ordinary provision.

The Magistrate was required to apply his mind to arrive at a definitive  

finding on the basis of the materials on record, in absence whereof, his order  

must be held to be arbitrary and, thus, without jurisdiction.  

We may, however, notice that in Janu  v.  Emperor, [ AIR 1947 Sind  

122 ], a Division Bench of the Court held :-

“Now, when the section says “if it is proved”, we  think,  it  must  mean,  if  it  is  proved according to  evidence,  properly,  admissible  under  Evidence  Act.”

Bhagwati (supra) has been distinguished stating :-

“But  reference  to  that  case  itself  shows that  the  Magistrate  had  recorded  evidence  under  the  provisions of S. 512.  He actually put on the record  a finding that the accused had absconded, but did  not  go  on  further  to  say  that  there  was  no  immediate  prospect  of  their  arrest.   There  was,  however,  evidence on the record from which the  Magistrate  might  have  reasonably  inferred  that  there was no immediate prospect of arrest. …….. That  case  is,  indeed,  authority  for  the  statement  that if evidence is on record that the accused were  absconding and there was no immediate prospect  of their arrest the absence of a formal finding to  

26

that  effect  does  not  invalidate  the  proceedings.  Section 512, indeed does not state that there should  be a formal finding.  But obviously S.512 requires  that there should be upon record evidence properly  admissible under the Evidence Act.”

(See also Ghurbin Bind  v.  Queen Empress, [1884 (10) ILR Cal 1097  

wherein it has been held that the fact of absconding to be alleged, tried and  

established).  .   

We may, at this stage, also notice a decision of this Court in Nirmal  

Singh  v.  State of Haryana, [ (2000) 4 SCC 41 ] wherein it was held that  

Section 299 of the Code is in two parts.  In that case the Magistrate, who had  

recorded the statements under Section 299 of the Code, was examined to  

indicate that in fact he had recorded the statements.  Cross-examination of  

the said Magistrate was necessary as there was a dispute as to whether there  

was any material that the persons whose statements had been recorded were  

died or not.  It was in that context this Court opined :-

“The Magistrate  who has recorded the statement  under Section 299 of the Criminal Procedure Code,  has been examined to indicate that in fact he has  recorded the statements. He also further contended  that the process-server did submit  the report  that  the  persons  are  dead,  whereafter  the  statements  recorded under Section 299 Cr PC were tendered  in evidence in the course of trial. It is true that the  learned Sessions Judge has not passed any order to  that effect but non-passing of such order would at  the most be an irregularity which is curable under  Section  465 of  the  Code of  Criminal  Procedure,  more  so,  when  the  accused  had  not  raised  any  objection at any earlier stage of the proceeding.”

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This Court  did not say as was contended by Mr.  Nafade that non-

compliance of Section 299 would be an irregularity.  What was considered  

to  be  an  irregularity  was  non  recording  of  a  statement  that  the  persons  

concerned were dead.  In fact the discussions on Section 299 of the Code  

and Section 33 of the Evidence Act starts from paragraph 4 wherein it was  

categorically held :-

“Being an exception, it is necessary, therefore, that  all  the  conditions  prescribed,  must  be  strictly  complied  with.  In  other  words,  before  recording  the  statement  of  the  witnesses  produced  by  the  prosecution,  the  court  must  be  satisfied  that  the  accused has absconded or sic (and) that there is no  immediate prospect of arresting him, as provided  under the first part of Section 299(1) of the Code  of Criminal Procedure. In the case in hand, there is  no  grievance  about  non-compliance  with  any  of  the requirements of the first part of sub-section (1)  of  Section  299  Cr  PC.  When  the  accused  is  arrested and put up for trial, if any such deposition  of any witness is intended to be used as evidence  against the accused in any trial, then the court must  be  satisfied  that  either  the  deponent  is  dead  or  incapable of giving evidence or cannot be found or  his  presence  cannot  be  procured  without  an  amount of delay, expense or inconvenience, which  would be unreasonable. The entire argument of Mr  Gopal Subramanium, appearing for the appellant is  that any one of these circumstances, which permits  the  prosecution  to  use  the  statements  of  such  witnesses, recorded under Section 299(1) must be  proved and the court concerned must be satisfied  and record a conclusion thereon.  In other words,  like any other fact, it must first be proved by the  prosecution that either the deponent is dead or is  incapable of giving evidence or cannot be found or  his  presence  cannot  be  procured  without  an  amount of delay, expense or inconvenience which,  under the circumstances would be unreasonable. In  the case in hand, there is no order of the learned  trial  Judge,  recording  a  conclusion  that  on  the  materials, he was satisfied that the persons who are  

28

examined by the Magistrate under Section 299(1)  are dead, though according to the prosecution case,  it  is  only  after  summons  being  issued  and  the  process-server having reported those persons to be  dead,  their  former  statements  were  tendered  as  evidence in trial and were marked as Exhibits PW- 48/A to PW-48/E. As has been stated earlier, since  the  law  empowers  the  court  to  utilise  such  statements  of  persons  whose  statements  were  recorded  in  the  absence  of  the  accused  as  an  exception  to  the  normal  principles  embodied  in  Section 33 of the Evidence Act, inasmuch as the  accused has been denied the opportunity of cross- examining the witnesses, it is, therefore, necessary  that the preconditions for utilising such statements  in  evidence  during  trial  must  be established  and  proved like any other fact. There possibly cannot  be any dispute with the proposition of law that for  taking the benefits of Section 299 of the Code of  Criminal  Procedure,  the  conditions  precedent  therein  must  be  duly  established  and  the  prosecution,  which  proposes  to  utilise  the  said  statement  as  evidence  in  trial,  must,  therefore,  prove  about  the  existence  of  the  preconditions  before tendering the evidence.”  

17. In this case moreover the appellant had not been absconding after he  

was  arrested.   The  term  ‘absconding’  has  been  defined  in  several  

dictionaries.  We may refer to some of them.   

‘Black’s  Law Dictionary  –  To depart  secretly  or  suddenly,  esp.  to  

avoid arrest, prosecution or service of process.

P. Ramanatha Aiyar – primary meaning of word is ‘to hide’.

Oxford English Dictionary – ‘To bide or sow away’.

Words  and  phrases  –  ‘clandestine  manner/intent  to  avoid  legal  

process’

29

In Kartarey   v.  State of U.P., [ (1976) 1 SCC 172 [ this Court held :

“43. Further it is wrong to say that Baljeet never  absconded. Contrary to what Baljeet has said in his  examination under Section 342 of the Cr PC, the  Investigating Officer, PW 7, testified that Baljeet  was found hiding in a chhappar in the village from  where he was arrested. This account of Baljeet’s  arrest was not challenged in cross-examination. To  be  an  “absconder”  in  the  eye  of  law,  it  is  not  necessary that a person should have run away from  his  home,  it  is  sufficient  if  he  hides  himself  to  evade the process of law, even if the hiding place  be his own home. We therefore,  do not find any  ground to distinguish the case of Baljeet from that  of Sitaram and to treat him differently.”

Furthermore for the purpose of invoking Section 299 of the Code the  

learned Designated Judge was required to hold on the date of passing of the  

order, namely 1st January, 1994 that he had been absconding on that date.   

In view of the nature of evidence which had been brought on record, it  

was not possible for him to hold so, namely –

a) Letter dated 1st September, 1993

b) Arrest of the petitioner by Thane Rural Police in FIR No.3/92.

c) I.O’s letter dated 25th October, 1993.

d) Reply dated 1st November, 1993

e) Third arrest of the petitioner on 20th November,  1993 in FIR  

No.237/92 of Manikpur Police Station.   

30

f) On 20th November, 1993 petitioner was arrested in another FIR  

No.161/92 in Virar Police Station.  

 The learned Designated Judge no doubt issued a proclamation but the  

same  was  done  in  February,  1993.   Once  a  person  is  arrested  and/or  is  

otherwise capable of being brought to court, the proclamation ceases to have  

any effect.   

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 in the trial, the trial court was  

duty bound to provide for the same.  In any event the learned Designated  

Judge did not rely on the proclamation made under Section 82 of the Code.  

It is in the aforementioned situation, we may 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.   

31

It may be for a day or for a few days.  The accused ordinarily and  

subject to just 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 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.

We must place on record that there are enough materials on the record  

to show that the appellant had made all attempts to be tried alongwith other  

accused  persons.   He  in  fact  moved  this  Court  under  Article  32  of  the  

Constitution  of  India  for  the  aforementioned  purpose  wherein,  on  23rd  

November, 1993 an order was passed stating :-

“ Leave granted

After  hearing  the  learned  Additional  Solicitor General and Mr. P. Chidambram, senior  counsel  appearing  on  behalf  of  State  and  

32

petitioner,  accused  respectively,  we  pass  the  following order with the consent of the parties.  

The  Presiding  Judge  of  the  Designated  Court, Pune is directed to expedite the hearing of  the case and consider the feasibility of framing of  charges or otherwise before 13th December,  1993  after  splitting  up  the  case  with  regard  to  the  absconding  accused,  if  any,  and  commence  the  trial  from  14th December,  1993  and  examine  witnesses  on  day  to  day  basis.  Both  the  parties  have  agreed  that  they  will  not  be  taking  any  adjournment on any ground and on the other, they  will  fully  cooperate  in  the  trial  of  the  case.  The  Presiding Judge of the Designated Court is further  directed to examine the material witnesses first in  the  order  and  thereafter  the  other  remaining  witness.

This order is without prejudice to the rights  and  contentions  of  the  parties  to  urge  any  legal  point  including  jurisdiction  of  the  Designated  Court.”

The said order was passed in the case of the appellant himself.  If he  

did not want to stand his trial at that stage, the question of issuance of the  

said direction did not arise.  Even the question of splitting of the case with  

regard to the absconding accused did not arise.  Appellant being agreeable  

not  to  take  adjournment  on  any  ground  and  his  undertaking  to  fully  

cooperate in the trial of the case could not arise if he would not have been  

standing trial.  The effort on the part of the appellant to be produced before  

the TADA Court is evident from the fact that not only he filed an application  

in that behalf before the Delhi High Court, he even filed several applications  

33

in  the  pending  proceedings.   The  High  Court  by  its  order  dated  19th  

December, 1994 directed :-

“ The  prayer  made  in  this  petition  is  that  respondent No.4, who is required to face trial in a  Court in Maharashtra should be transferred to that  court.  The petitioner forgets that respondent No.4  is facing a trial in a serious offences in Delhi.  It is  obvious that unless one trial is over, that other trial  cannot  take  place.   Respondent  No.4  cannot  be  shifted from place to another so that trials can take  place  simultaneously.   The  interest  of  the  petitioner, Maharashtra State are well protected by  making entries in the challan of respondent No.4 in  jail  record  as  well  as  in  record  of  court  where  respondent No.4 is facing trial in Delhi that has not  to  be  released  till  any  order  is  made  by  a  competent court in Maharashtra with regard to the  case pending in that Court.  As soon as the trial at  Delhi  completes,  respondent  No.4  shall  be  transferred  to  the  jurisdiction  of  the  court  at  Maharashtra  where  he  is  to  face  the  trial.   The  Delhi  Court  shall  take  expeditious  steps  to  complete  the  trial  at  an  early  date.   With  these  observations, we dispose of this petition.

Copy  of  this  order  be  sent  to  Chief  Metropolitan  Magistrate,  to  TADA  Court  where  respondent  No.4  is  facing  the  trial  and  also  to  Supdt. Jail and to Designated Court in Pune.”  

Thus, he, for all intent and purport, made subject to the jurisdiction of  

the Pune TADA Court as well.

34

Mr.  Nafade  would  submit  that  having  regard  to  the  fact  that  the  

appellant having filed several applications before the TADA Court, could  

have also questioned the legality of the order dated 1st January, 1994.  Such  

an occasion, in our opinion, did not arise particularly having regard to the  

nature of the order passed therein.  

An accused  ordinarily  would  not  be  presumed to  have  waived his  

right.   The  procedural  principles  like  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.   [See  Chief  

Justice of Andhra Pradesh & anr.  vs.  L.V.A. Dikshitulu & ors. (AIR 1979  

SC 193 at 198)]  

A bare  perusal  of  the  provisions  of  Section  299  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.

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In this case the learned 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  neither  the  accused  nor  his  pleader  was  before  the  Court.  

Although we do not intend to pronounce finally on the point, but it appears  

to us that Section 14(5) of TADA would be attracted only when the accused  

is facing trial and/or otherwise represented through his advocate.  If 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.   

There is another aspect of the matter which 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 sense that he could not have been directed to stand trial. .  

It is not the contention of the respondents that the learned Magistrate despite  

the said charge-sheet dated 27th August, 1993 had taken cognizance against  

him.  Undoubtedly in the order dated 30th December, 1993, while framing  

charges  his  name had  been  shown as  an  absconding  accused.   He  was,  

therefore, not before the Court.  He could not have taken part in he trial.  He  

was arrested formally only on 4th August,  1993 and charges were framed  

against him only on 15th November, 2003.   

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We have noticed  hereinbefore  the  respective  dates  of  death  of  the  

witnesses concerned.  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.  It is, in our opinion,  

incorrect to contend that such a right could be exercised at any date prior  

thereto.  Such a question could have arisen provided he was facing trial.  In  

that view of the matter we are also of the opinion that it  was not a case  

wherein sub-section (5) of Section 14 of the Act would have been attracted  

since the order of the TADA Court specifically invoked Section 299 of the  

Code.  

We have proceeded on the basis that the right of confrontation is not a  

fundamental  right  or  whereby  accused’s  fundamental  right  has  not  been  

breached.  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 Prosecutor to place on  

record  of  the  requisite  materials  before  the  learned  Designated  Judge  to  

show that the appellant, after his arrest in Delhi case on 23rd July, 1993 was  

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not an absconder and thus the provisions of Section 299 of the Code was not  

attracted.  

Mr. Nafade sought to place before us to the gravity of the offence.  He  

has drawn our attention to the fact that this Court on an appeal preferred by  

the complainant  reversed the judgment  of acquittal  passed by the TADA  

Court against other accused except six accused against whom there was no  

direct allegation of murder.

In Noor Aga    v.  State of Punjab [2008 (9) SCALE 691] this Court  

while dealing with a similar draconian statute, held :-

“44.  The  Act  contains  draconian  provisions.  It  must, however, be borne in mind that the Act was  enacted having regard to the mandate contained in  International Conventions on Narcotic Drugs and  Psychotropic Substances. Only because the burden  of proof under certain circumstances is placed on  the  accused,  the  same,  by  itself,  in  our  opinion,  would  not  render  the  impugned  provisions  unconstitutional.

45 A right to be presumed innocent, subject to the  establishment  of  certain  foundational  facts  and  burden of proof, to a certain extent, can be placed  on an accused. It must be construed having regard  to the other international conventions and having  regard  to  the  fact  that  it  has  been  held  to  be  constitutional.  Thus,  a  statute  may  be  constitutional  but  a  prosecution  thereunder  may  not be held to be one. Indisputably, civil liberties  and rights of citizens must be upheld.

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(2) to  elicit  facts  in  favour  of  the  cross- examining lawyer’s client from the mouth of the  witness of the adversary party;

(3) to  show that  the  witness  is  unworthy  of  belief  by  impeaching  the  credit  of  the  said  witness;

and the questions to be addressed in the course of  cross-examination  are  to  test  his  veracity;  to  discover who he is and what is his position in life;  and to shake his credit by injuring his character.”

[  See  also  Cholan  Roadways  Ltd.  v.  G. Thirugnanasambandam,  

(2005) 3 SCC 241 ].  

In Vimalben Ajitbhai Patel  v.  Vatslaben Ashokbhai Patel and others,  

[ (2008) 4 SCC 649, this Court observed :-

“32. The provisions contained in Section 82 of the  Code  of  Criminal  Procedure  were  put  on  the  statute book for certain purpose. It was enacted to  secure the presence of the accused. Once the said  purpose  is  achieved,  the  attachment  shall  be  withdrawn. Even the property which was attached,  should be restored. The provisions of the Code of  Criminal  Procedure  do  not  warrant  sale  of  the  property  despite  the  fact  that  the  absconding  accused had surrendered and obtained bail.  Once  he  surrenders  before  the  court  and  the  standing  warrants  are  cancelled,  he  is  no  longer  an  absconder. The purpose of attaching the property  comes to an end. It is to be released subject to the  provisions of the Code. Securing the attendance of  an  absconding  accused,  is  a  matter  between  the  State and the accused. The complainant should not  ordinarily  derive  any  benefit  therefrom.  If  the  property  is  to  be  sold,  it  vests  with  the  State  subject to any order passed under Section 85 of the  Code. It cannot be a subject-matter of execution of  

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a decree, far less for executing the decree of a third  party, who had no right, title or interest thereon.”

Mr.  Nafade  would  submit  that  the  appellant  did  not  suffer  any  

prejudice.  We do not agree.  Infringement of such a valuable right itself  

causes prejudice.  In S.L. Kapoor  v. Jagmohan,  [ (1980) 4 SCC 379 ], this  

Court clearly held :-  

“In our view the principles of natural justice know  of  no exclusionary  rule  dependent  on whether  it  would have made any difference if natural justice  had been observed. The non-observance of natural  justice is itself prejudice to any man and proof of  prejudice  independently  of  proof  of  denial  of  natural justice is unnecessary. It ill comes from a  person who has denied justice that the person who  has been denied justice is not prejudiced.”  

In A.R. Antulay  v.  R.S. Nayak and another, [ (1988) 2 SCC 602 ] a  

seven Judge  Bench of this Court has also held that when an order has been  

passed in violation of a fundamental right or in breach of the principles of  

natural justice, the same would be nullity.  { See also State of Haryana  v.  

State of Punjab, [(2004) 12 SCC 673] and Rajasthan State Road Transport  

Corporation and others  v.  Zakir Hussain, [ (2005) 7 SCC 447 ] }  

18. For the reasons aforesaid the impugned order cannot be sustained.  It  

is set aside accordingly.  The appeal is allowed.  

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………………………………J. [S.B. Sinha]

………………………………J.  [Dr. Mukundakam Sharma]

New Delhi; May 11, 2009

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