1984 P Cr. L J 3002
(a) Criminal Procedure Code (V of 1898)-
----S. 540-A (2)-Trial in absentia-Provision contained in subsection (2) of S. 540-A, Cr. P. C., held, could not be invoked to case of an accused already appeared in Court but subsequently absented.
(b) Criminal Procedure Code (V of 1898)-
-- S. 540-A (2) read with S. 512-Trial in absentia-Accused---respondent never served due to unascertained whereabouts and as such never appeared in Court-Trial, Court, held, committed a clear error of law in directing separation of their cases on sole ground of non-service-Trial Court, held further, required to enforce their attendance by resorting to issuance of coercive process against them under S. 87/88 of Cr. P. C. and thereafter proceedings under S. 512, Cr. P. C.-Orders passed under S. 540-A (2), Cr. P. C. set aside, in circumstances.
Raja Mahmood Akhtar for Petitioner.
Nemo for Respondents Nos. 1 to 4.
Respondents Nos. 5 and 6 not served.
S. Hamid Ali for the State.
Date of hearing: 5th May, 1984.
1984 P Cr. L J 3002
[Lahore]
Before Ghazanfar Ali Gondal, J
SHER MUHAMMAD-Petitioner
Versus
FALAK-SHER AND 5 OTHERS-Respondents
Criminal Revisions Nos. 617, 710 and 711 of 1968, beard on 5th May, 1984.
JUDGMENT
This judgment will dispose of three criminal revisions (Criminal Revision 617/68, filed by Sher Muhammad, Criminal Revision 710/68 filed by Muhammad and Criminal Revision 711/68 filed by Ghaus Muhammad) against order dated 19th June, 1968 of the A. D. M. Mianwah/Special Judge whereby under subsection (2) of section 540-A, Cr. P. C. he directed that the three complaint cases against accused Muhammad Akbar Patwari and Muhammad Nawaz Girdawar be separated and be heard on their attending the Court while the said cases should proceed against Falak Sher, Ahmad, Sardaran and Amir Khatoon.
2. The facts of the case are that each of the petitioner filed a complaint against respondents 1 to 4 as well as Muhammad Akbar Khan, respondent No. 5 and Muhammad Nawaz Girdawar, respondent No. 6 in the Court of Special Judge Mianwali. The Special Judge summoned the accused in these cases. The respondents 5 and 6 could not be served and learned Special Judge purporting to act (under subsection (2) of section 540-A, Cr. P. C. made an order that since whereabouts of respondents 5 and 6 are not ascertainable and they have not been served, the case of the said accused persons should be separated and may be heard after they attend the Court while proceedings against respondents 1 to 4 be started.
3. Respondents 5 and 6 have not been served in these criminal revisions. An order had been passed by my learned brother Muhammad Aslam Mian, J. that these cases should be fixed for Pacca hearing immediately notwithstanding that respondents Nos. 5 and 6 have not been served, as their whereabouts are not known.
4. I have heard the learned counsel for the petitioner as well as learned counsel for the State. Subsection (2) of section 540-A, Cr. P. C. provides for the trial being held in the absence of the accused persons whether the two or more accused are already before the Court or any one or more of them are incapable of remaining before the Court. The Court can in that situation dispense with the attendance of said persons and proceed with the inquiry. Under subsection (2) of the said section, it has been provided that if the accused in any such case is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary, he may for reasons to be recorded by him, order that the case of such accused be taken up or tried separately.
5, It is clear from the perusal of subsection (2) of section 540-A, Cr. P. C. that the said provision has been made in respect of such accused persons as have already appeared in the Court but have subsequently absented themselves but the Court considers their personal attendance necessary. It is only in such a situation that the Court can make an order that case be separated and tried separately. The case in hand is not a case of that nature. In this case, it is quite clear that respondents 5 and 6 had never appeared before the Court. It is clearly recorded in the impugned order of the learned Special Judge that the whereabouts of the two respondents are not known and they had never been served. The learned Special Judge committed a clear error of law in directing the separation of their cases on the sole ground that they could not be served. The correct course for the learned A. D. M./Special Judge, Mianwali to adopt was to enforce the attendance of the respondents 5 and 6 under sections 87 and 88 of the Cr. P. C. and thereafter, proceed, under section 512, Cr. P. C. and having not made resort to these provisions, the course adopted by the learned A. D. M./Special Judge, Mianwali was not lawful.
6. For the above reasons, I accept these revisions, set aside orders dated 19th June, 1968 of the learned A. D. M./Special Judge Mianwali separating the cases of respondents 5 and 6 and direct that attendance of respondents 5 and 6 be procured in each case by resort to coercive machinery of law as available in sections 87 and 88 of the Cr. P. C. and then proceedings be taken under section 512, Cr. P. C.
CRIMINAL REVISION NO. 710 OF 1968
For the reasons recorded in my judgment of even date passed in Criminal Revision 617/68, the criminal revision is also accepted.
CRIMINAL REVISION NO. 711 OF 1968
For the reasons recorded in my judgment of even date passed in Criminal Revision 617/68, this criminal revision is also accepted.
S. G. D Revisions allowed,
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