Sreenivasa Rau, J.:— This reference is by the learned Sessions Judge, Shimoga Division, under S. 438, Criminal P.C, for quashing the committal by the learned IInd Magistrate, Chitaldrug of Accused 1, Sanjeeva Naika, in C.C 236/54 to take his trial in the Court of session for an offence punishable under S. 302, I.P.C along with four others who had already been committed for an offence under S. 302 read with S. 114, I.P.C in connection with the same occurrence, i.e the alleged murder of one Papanna Reddy of Maradihalli at Gailal village, Miriyur Taluk, on 14-2-54.

2. The circumstances giving rise to the reference are as follows: The abovementioned Sanjeeva Naika and four others were charged by the Miriyur Police with the murder of Papanna Ready & a charge-sheet was presented to the Court of the IInd Magistrate, Chitaldrug, on 26-2-54. The case was registered as C.C 236/54. The said Sanjeeva Naika and another accused, A-2, were stated to be absconding. The other three accused were produced in custody. The learned Magistrate directed the issue of proclamations against A-1 and A-2 on 11-3-54. Accused 2 Thippiah, however, surrendered before Court on 18-3-54. Proclamation in regard to accused 1 Sanjeeva Naika was again ordered and duly published.

3. On 19-5-54 the prosecution prayed for a further adjournment to trace accused 1. The Court refused it on the ground that the other accused were incarcerated in the jail awaiting inquiry for over three months and that if accused 1 was traced he could be proceeded against according to law. The case was adjourned to 26-3-54. On that day the prosecution filed a memo praying that the evidence of witnesses to be examined in the case may be treated as one under S. 512, Criminal P.C in respect of the absconding accused. The learned Magistrate made a note as follows:

“There is sufficient material to prove that the accused Sanjeeva Naika has absconded and that there is no immediate prospect of arresting him. The prosecution version is that he is the principal offender. There appears to be no possibility of apprehending the fugitive in the near future. Hence I record the evidence under S. 512, Criminal P.C to be used against A-1 if and when he is traced.”

4. The Judgment of the Court was delivered by The witnesses produced by the prosecution were accordingly examined on that day and on subsequent dates of hearing. Eventually on 2-5-54 the learned Magistrate committed A-2 to A-5 to take their trial before the Court of session for an offence under S. 302 read with S. 114, I.P.C

5. On 15-10-54 accused 1 Sanjeeva Naika was produced in custody before that Court which was on that day temporarily in charge of the First Magistrate, Chitaldrug, who remanded him to judicial lock-up till the next day. On 16-10-54 the learned Second Magistrate made an order as follows:

“The case against the accused which was struck off since he was reported to be absconding is restored to file. The accused with four other persons was charged with murder by the Police of Miriyur. The accused Sanjeeva had absconded at the time of preliminary inquiry and his alleged associates were committed to Sessions in C.C No. 236/54 on the file of this Court.

The evidence taken by me against the co-accused could not be treated as evidence against the absconding (accused) and as the accused Sanjeeva was not a party to the proceedings and had no opportunity to cross-examine. There are also decisions that the accused should be given opportunity to cross-examine witnesses and the Magistrate can act upon the evidence on record.”

6. The accused was produced before Court on several other subsequent dates and on 30-10-54 the Prosecutor submitted a supplementary list of witnesses purporting to be in addition to the witnesses already examined under S. 512, Cr. P.C, and submitted that the accused may be committed for trial on the evidence on record and after examining “additional witnesses pertaining to his complicity”. Arguments were heard on that day and orders were pronounced on 2-11-54. The order sheet of that day contains the following entries:

“I propose to commit the accused on the strength of evidence on record, for reasons to be stated in the order I am going to make committing the accused for trial.

Accused examined.

The evidence against the accused explained to him. Arguments heard………….

The prosecutor filed an application at the time of arguments that he proposed to examine additional witnesses. The question of examination of additional witnesses does not arise since I have committed the accused on the evidence on record.”

7. In the order of committal, the learned Magistrate considered the question whether Accused 1 who was not a party to the previous proceedings could be committed merely on the strength of the evidence recorded or the prosecution witnesses should be recalled so as to afford an opportunity to A-1 to cross-examine them. He stated that it had been proved to his satisfaction that the accused had absconded, that there was no immediate prospect of arresting him and that therefore evidence was recorded under S. 512, Cr. P.C against him.

8. After referring to his refusal of further adjournment prayed for by the prosecution on 19-5-54 to trace A-1 on the ground that the prayer was unreasonable and to his order of 25-5-54 that the evidence against the absconding accused was being recorded under S. 512, Cr. P.C the learned Magistrate proceeded to say that all the available evidence against the second persons was placed on record and the evidence was tested in cross-examination by three senior Counsel, that A-1 was undefended, that there being no provision to appoint a Standing Counsel in committal proceedings, it was meaningless to record the same evidence as a mechanical formality and that the occurrence having taken place more than eight months ago, there was no justification to summon again a large number of witnesses who had been examined thereby causing more delay in the trial and considerable inconvenience to the parties.

9. After considering the evidence as recorded by him, he concluded that the material justified the framing of a charge against Accused 1 under S. 302 I.P.C and committed him to take his trial in the Court of Session. He accordingly committed the accused.

10. In his reference, the learned Sessions Judge opines that under S. 512 Cr. P.C it was a condition precedent that the absconding of the accused must be proved as also that his presence could not be secured in the near future. In his view these facts had not been proved as no evidence bearing on the matter had been recorded. He refers to the request made by the prosecution on 19-5-54 for a further adjournment specifically on the ground that they wanted to trace Accused 1 and says that this itself shows that the stage had not been reached for holding that Accused 1 was absconding.

11. He considers the other reasons given by the learned Magistrate as not germane to the matter at all. He thinks that the learned Magistrate has considered only the delay likely to be caused in the proceedings and has not bestowed his attention on the fact that the witnesses were presumably available for examination. He then refers to the list of additional witnesses filed by the prosecution and says that it was incumbent under S. 208, Cr. P.C upon the learned Magistrate to examine all the witnesses before he came to a decision on the question of committal and that the omission to examine them was an illegality.

12. Taking therefore the view that the non-observance of the provisions contained under Ss. 208 and 512 Cr. P.C was each of them in itself enough to render the committal illegal he has submitted the records for appropriate orders by this Court. Both the Courts below have referred to a number of decided cases in their respective orders.

13. The main questions for consideration are whether the requirements of S. 512 Cr. P.C under which the evidence purports to have been recorded by the Magistrate have been fulfilled as the committal is based entirely on such evidence and whether the committal is maintainable when the Magistrate did not examine all the witnesses as were cited by the prosecution.

14. The basic rule in regard to evidence taken before the Court in judicial proceedings is that it must be taken in the presence of the parties to the proceedings. This is even more emphatically of fundamental importance in criminal trials and S. 353 Cr. P.C provides that all evidence shall be taken in the presence of the accused or in the presence of his pleader when his personal attendance is dispensed with.

15. This is, of course, subject to statutory exceptions. As they are exceptions to a fundamental rule they are to be strictly complied with. Such exceptions are provided only where the Legislature has thought that the interests of justice require such evidence being made available, and after making provision for ensuring that such evidence approaches to the maximum degree possible the standard of evidence adduced in the presence of parties.

16. Sections 32 and 33 of the Evidence Act are instances of such exceptions. Section 32 relates to previous statements and the categories under it are of such a character that the circumstances under which those statements are made almost automatically guarantee the truth of those statements, as, for example, dying declarations or statements against one's pecuniary or proprietary interests.

17. Similarly, in regard to S. 33, the evidence recorded in previous proceedings can be tendered in a subsequent judicial proceeding or at a later stage of the same proceeding only if the prior proceeding is between the same parties and relates substantially to the same questions in issue and the party affected by such proceedings has had the right and opportunity to cross-examine.

18. Even under these two sections, such evidence cannot be tendered if the person concerned is available for examination as a witness. It is to be noticed that under S. 33, Evidence Act, it is only evidence taken in the presence of a party or his representative that could be made use of in the later stages.

19. Section 512, Cr. P.C is also an exception such as is contemplated under S. 353, Cr. P.C It occurs in the Chapter on Special Rules of evidence. The first part of the section provides for recording the depositions of witnesses produced on behalf of the prosecution in the absence of the accused when the accused has absconded. The second part provides for such recording in cases where the accused is not known, but further delimits the scope and requires the prior order of the High Court. In this case, we are only concerned with the first part.

20. The object of the section is to obtain and preserve valuable evidence in regard to an offence so that the interests of justice may not suffer when the accused is found and put on trial after long delay because in the interval the evidence may have ceased to be available. If the material was not so secured, it might in many instances not be possible to bring home the offence to malefactors at all and that would result in the latter taking advantage of their own successful evasion of the process of Court and the cause of justice would suffer.

21. The Legislature has therefore thought it proper to provide this express exception to the general rule under S. 353, Cr. P.C It will be noticed that while S. 22 of the Evidence Act provides for the use of evidence taken in previous proceedings in the presence of the party affected and when he had a right and opportunity for cross-examination, S. 512 enables evidence to be recorded in the accused's absence for later use. Thus, as observed by Venkataramana Rao, J. in — “Emperor v. Labbai Kutti…Accused.’, AIR 1939 Mad 190 (A), Section 512, Cr. P.C, represents no exemption to the provisions of Section 33 of the Evidence Act which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can be made use of. It is hardly necessary to say that in these circumstances, the conditions which are required to be fulfilled under S. 5121 Cr. P.C have to be strictly construed.

22. The conditions pertain both to the recording of depositions & to the use of the depositions later on in the proceedings taken on the arrest of the absconder. The conditions pertaining to the recording are that it must be proved that the secured person has absconded and that there is no immediate prospect of arresting him. The conditions relating to the use of such depositions in a later trial or inquiry after the accused is arrested are, broadly speaking, the same as those under Sections 32 and 33 of the Evidence Act i.e the non-availability of the deponent on account of the death or incapacity to give evidence or impossibility of procuring his attendance without unreasonable delay, expense or inconvenience.

23. As regards the conditions under which the depositions can be recorded they have been the subject-matter of consideration in a series of decisions.

24. ‘Ghurbin Bind v. Queen Empress’, 10 Cal 1097 (B) was a case in which the absconding accused was later on brought to trial and convicted on the basis of evidence including the deposition of a witness examined before the Committing Magistrate's Court. The learned Sessions Judge who tried the case admitted the evidence as coming under Section 33, Evidence Act and also under S. 512, Cr. P.C The Calcutta High Court while holding that it could not possibly come under Section 83, Evidence Act, as it was not recorded in the presence of the prisoner held that it would be admissible under Section 512, Cr. P.C only if its provisions had been complied with.

25. According to that, the section requires that the absconding of the accused should be alleged, tried and established before the deposition is recorded. As these requirements had not been fulfilled, they held that the deposition was inadmissible in evidence against the accused. In — ‘Queen Empress v. Ishri Singh’, 8 All 672 (C), the High Court held that the depositions given before the committing Magistrate against the absconding accused were admissible in evidence under Section 512, Cr. P.C in the trial of the accused.

26. It is not clear from the report whether the Magistrate purported to act under Section 512 in recording the depositions. The High Court found that the Magistrate had recorded that the accused was an absconder. From the trend of the judgment, it would appear that the Magistrate had not recorded that the conditions of Section 512 were satisfied before recording the depositions, but that the High Court itself on an examination of all the circumstances came to the conclusion that the conditions of Section 512 were satisfied.

27. It would therefore appear that in the High Court's view, it was open to make use of such depositions if at the stage of trial it was found that the conditions of Section 512, Cr. P.C were satisfied and that it was not necessary, even if there was no indication that the recording Magistrate had felt satisfied about the fulfilment of those conditions. The provisions of Section 512, Cr. P.C came up for consideration before the same Court and the same learned Judges in the case reported in — ‘Empress v. Makhni’, 1890 All WN 100 (D).

28. That was a case in which the accused had been convicted under Section 193, I.P.C, for giving false evidence in proceedings under Section 512, Cr. P.C The learned Judges held that it was only if it was proved that (1) the accused had absconded and (2) that there was no immediate prospect of arresting him, evidence could be legally taken under Section 512, Cr. P.C They stated that the facts must be proved by legal evidence and not merely by the report of the Police unless that report was given in the shape of evidence before the Magistrate.

29. They observed that the section had nothing to do with the taking of evidence generally as in inquiries and trials. Section 512 was a special rule of evidence taking a direct and distinct departure from the general rule that the accused are entitled to have evidence given in their presence and hearing. This was a starting departure and must be strictly construed. In Section 87, Cr. P.C providing for the issue of a proclamation against an absconding person and Section 90 providing for the issue of a warrant of arrest under certain circumstances, the terms used were “if a court has reason to believe” and in Section 87 the words were added “whether after taking evidence or not.”

30. But in Section 512 the words used were “if it be proved. This means proved by evidence upon which a Court could legally and properly act. On the facts of the case they held that it had not been proved that the person then accused had absconded or that there was no immediate prospect of arresting him and that therefore it was not a proceeding in which evidence was or could be legally taken. They also drew attention to the fact that Section 512, Cr. P.C of (1882?) was very different in terms and a distinct departure from Section 327 of the old Code (i.e of 1872).

31. It may be mentioned in this connection that while the Code of 1861 contained no corresponding provision, Section 327 of the Code of 1872 read as follows:

“If an accused person absconds, and after due pursuit cannot be arrested, any Court competent to try or to commit such accused person for trial for the offence complained of, may, in his absence, record the statements of the persons acquainted with the facts; and such depositions may, on the angst of such person, be put in on his trial for such offence, if it is not practicable to procure the attendance of such witnesses”.

32. It will be noticed that the wording of Section 512(1), Cr. P.C 1882, is more precise and stringent both in regard to the conditions to be satisfied before the recording of depositions and as regards their use. In other words, it was held that as the conditions necessary for exercising the jurisdiction under Section 512 had not been satisfied, the depositions recorded could not be regarded as evidence taken in a judicial proceeding and the conviction under S. 193, I.P.C could not be sustained.

33. In — ‘Bhagwati v. Emperor, AIR 1918 All 60 (E), previous depositions recorded under Sec. 512, Cr. P.C were made use of at the trial. The recording Magistrate had found that the accused had absconded but no express finding had been given that there was no immediate prospect of arresting the accused. The High Court took the view that while it was certainly advisable that the Magistrate should recite in his order that the accused was absconding, and that there was no immediate prospect of his arrest, the presumption was that the Magistrate did his duty and did not record the evidence under Section 512, Cr. P.C unlawfully, and that hence the failure to record a finding that there was no immediate prospect of the accused's arrest did not render the evidence inadmissible.

34. The appellant's Counsel relied on an earlier decision of the same High Court reported in — ‘Rustam v. Emperor’, AIR 1915 All 411 (F) where it was held that the Court which records the proceedings under Section 512, Cr. P.C must, first of all, record an order that in its opinion it had been-proved that the accused had absconded and that there was no immediate prospect of his arrest. In this case, the murder was committed on 3-12-1897.

35. Evidence purporting to be under Section 512, Cr. P.C was recorded on 24-12-1897. The proceedings were discovered to be incomplete in 1898, a proclamation under Section 87 of the Code of Criminal Procedure was issued and also a warrant for the arrest of then absconding accused. A police constable gave evidence of having failed to find the accused after making a search. Witnesses who had been examined in 1897 were examined again.

36. The proceedings were apparently left incomplete again because the matter was once again taken up by the Prosecuting Inspector in 1911. Fresh proceedings were started on his suggestion and formal evidence of the accused's absconding was recorded. At the trial, the Sessions Judge took on record the depositions of 1897. The depositions of 1995 wets also taken into consideration by him though no order appeared on the file showing how and when those statements were brought on record. The accused was convicted on the statements of the witnesses recorded in 1897. The High Court as mentioned above held that as the recording of depositions, of 1897 was not preceded by a finding that the conditions mentioned in S. 512, Cr. P.C had been satisfied, that evidence was inadmissible. As regards the depositions taken in 1898 the evidence of the police constable examined in 1898 did not disclose that there was no immediate prospect of the arrest of the accused nor was there any finding by the Magistrate that he was satisfied that the accused was absconding and that there was no immediate prospect of his arrest.

37. The High Court however considered those depositions also. But this was only to find out whether there was any ground for ordering a retrial. In the later Allahabad case viz., — ‘AIR 1918 All 30 (E), this decision was distinguished on the ground that the learned Judges had, after going through the previous records, came to the conclusion that there was no evidence from which the Magistrate could draw the inference that the accused was absconding and that there was no immediate prospect of his arrest and that in the case with which they were dealing there was evidence to justify a reasonable Inference both in regard to the absconding of the accused and the absence of an immediate prospect of his arrest.

38. They however do not explicitly deal with the observation in the previous Allahabad decision that the Court recording the depositions must, first of all, record an order that in its opinion, both the conditions have been established. They content themselves with saying that the section nowhere requires that the Magistrate must give a finding. In the case reported in — ‘Daya Ram v. Emperor’, AIR 1926 Lah 83 (G), the Lahore High Court appears to adopt the view taken in — ‘AIR 1918 All 60 (E). The deposition of one of the witnesses recorded under Section 512, Cr. P.C was relied on for convicting the appellant.

39. No finding had been given by the recording Magistrate that the accused had absconded and that there was no immediate prospect of arresting him. The appellant's Counsel relied on — ‘Ramdial v. Emperor’, AIR 1914 All 249 (H), but the learned Judges of the Lahore High Court thought it unnecessary to consider that decision as the same High Court has taken a different view in — ‘AIR 1918 All 60 (E)’.

40. They found that the recording Magistrate took the statements of two constables who had searched for the accused and had not been able to find him and that those statements afforded the proof that was required and the fact that a proclamation against the accused under Section 87 Cr. P.C had been issued would show that the Magistrate was satisfied with the proof.

41. This would indicate that in the view of the learned Judges an explicit finding by the Magistrate was not necessary and that it was open to the High Court or the appellate Court to satisfy itself whether conditions under Section 512, had been fulfilled. In — ‘Karam Singh v. Emperor’, AIR 1941 Lahore 361 (I): it was contended on behalf of the appellant that the only evidence let in before the Magistrate who recorded the statement under Section 512, Cr. P.C was that of a police constable who did not personally know the appellant and therefore could not have conducted or did not at any rate in fact conduct an effective search.

42. The Magistrate made an order that he was satisfied that the appellant was intentionally absconding and that there was no hope of his being arrested soon. The High Court observed:

“When the Magistrate is so satisfied on evidence recorded by him, the sufficiency of the evidence satisfying him cannot be agitated or questioned when the accused person is later brought to trial. Earless can it be questioned at a later stage when the accused person after trial is convicted and an appeal preferred from the order of conviction”.

43. Thus in the view expressed in this decision, the finding of the recording Magistrate is conclusive and cannot be challenged either in the trial Court or in the appellate Court. In — ‘Manbodh v. Emperor’, AIR 1944 Nag 274 (J), however, a different view is taken and it is held that not only should the Court recording the depositions be satisfied about the fulfilment of the conditions but that the Court trying the case must also be subsequently satisfied that Section 512, Cr. P.C was complied with, from which it necessarily follows that the matter could be canvassed in the appellate Court also.

44. As regards the basis on which the recording Court is to be satisfied of the fulfilment of the conditions i.e that the accused was absconding and that there was no immediate prospect of his arrest, it is seen from the wording of S. 512 Cr. P.C that these conditions have to be ‘proved’. It has accordingly been held that the facts must be proved by legal evidence and not merely by the report of the Police or by information otherwise tendered:, vide 1890 All W.N 100 (D) and — ‘Janu v. Emperor’, AIR 1947 Sind 122 (K).

45. 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.

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

47. It has already been seen that while AIR 1918 All 60 (E) and AIR 1926 Lah 83 (G) take the view that no express finding is necessary, 10 Cal 1097 (B); 1890 All W.N 100 (D) and AIR 1915 All 411 (F) take a different view and hold that the recording of such finding is a condition precedent and it is such a finding that invests the Court with the jurisdiction to record the depositions.

48. This aspect of the matter has received detailed consideration in AIR 1944 Nag 274 (J) (already referred to) in which the learned Judges state that the mere recording of the evidence would not indicate that absconding was proved having in view the definition of ‘proved’ in S. 3 of the Evidence Act and they expressly dissent from the view expressed in AIR 1918 All 60 (E) and AIR 1926 Lah 83 (G).

49. It appears to us that the latter view viz. that the recording Court should make a record of its finding that the accused person has absconded and that there is no immediate prospect of arresting him is essential to invest the depositions with legal validity is correct. It is beyond doubt that S. 512 Cr. P.C requires proof of these facts. Obviously, the proof must be to the satisfaction of the Court that proceeds to record the depositions.

50. The only way in which such satisfaction can be indicated by a Court is by recording its finding. That is the only way in which it can be safely presumed that the mind of the Court and of the Counsel for the prosecution is directed towards the object of the recording of such depositions.

51. Section 512, as mentioned above, is aimed at preserving valuable evidence which may later on cease to be available and the recording of depositions under that section may not necessarily be in the course of any other enquiry or trial. In fact, some of the decisions mentioned above relate to the case of a single accused, and the depositions were recorded solely with the object of later use after the absconding accused was arrested. But it comes into use when some accused are absconding and the remaining ones are being proceeded against.

52. In such circumstances, it is quite possible that in the absence of a definite finding that the conditions under S. 512 Cr. P.C are satisfied, as pointed out in — ‘Sheoraj Singh v. Emperor’, AIR 1926 All 340 (L), the mind of the Court and of the Counsel for the prosecution at the time when such witnesses would be giving their evidence in the box would not be directed at all to the question of the guilt or otherwise of the absconding person and many things which ought to be asked might be omitted and a fortiori questions in cross-examination asked by the other accused who are on their trial or by their Counsel with the express purpose of throwing guilt upon the absent party might extract from such witnesses statements very prejudicial to the absent party which would not be permitted if the witnesses were being properly examined under S. 512 Cr. P.C

53. While it is not the law that for purposes of being used under S. 512 Cr. P.C the depositions of witnesses must be recorded in separate proceedings and it will suffice if at the commencement of the hearing against the other accused the Court takes evidence and gives a finding that the conditions in respect of taking depositions against the absconding accused are satisfied and then proceeds to examine the witnesses, the absence of such a finding will clearly militate against the interests of the absconding accused.

54. This is clearly against the policy of the law. Hence, an ‘ex post facto’ finding by the Court of trial or the appellate Court that either of them is satisfied about the conditions being fulfilled would be of no avail. The position would be the same whether these Court spelt out the conditions from the material coming on the record before the depositions are taken or from the depositions themselves or other evidence adduced ‘after’ the depositions are commenced to be taken.

55. In the case on hand it is seen that as the Police were not able to secure accused 1 and 2 the learned Magistrate directed a proclamation to issue under Section 87, Cr. P.C against them on 11-3-54. Accused 2 surrendered before Court on 18-3-1954. Proclamation was again directed against Accused 1 on 24-3-1954, and was returned after due publication on 25-4-1954.

56. On 19-5-54 the prosecution prayed for further adjournment to trace Accused 1. This was refused on the ground that the other accused were in custody an had been awaiting the inquiry for over three months. The learned Magistrate ordered that the inquiry would begin on the next date of hearing. While he was perfectly in order in doing so, it is clear that according to the prosecution there was still a possibility of tracing Accused 1.

57. On 25-5-54, the Prosecutor filed a memo praying that the evidence of witnesses to be examined in the case may on the arrest of Accused 1 be taken against Accused 1 also. Nothing was mentioned by him as to whether any further efforts were made by the Police to trace Accused 1. Nevertheless, the learned Magistrate noted that there was sufficient material to prove that Accused one had absconded and that there was no immediate prospect of arresting him, and that he would record evidence under Section 512 Cr. P.C to be used against Accused I if and when he was traced.

58. It is thus seen that there was no legal proof either of the fact that the accused had absconded of that there was no immediate prospect of arresting hun, for the learned Magistrate's recital that there was sufficient material to prove the said facts has no basis whatever. The only material he could have had was an assertion or a representation by the prosecution, the publication in the Police Gazette that the accused was absconding and the issue of the proclamation.

59. These did not constitute legal proof. The mere fact that he recorded such a finding in the absence of any legal evidence whatever would not invest him with the power to record the depositions under Section 512 Cr. P.C against the absent accused, Indeed, the learned Magistrate, seems to have realised this, for in the entry dated 15-10-1954 in the order sheet, i.e after the arrest of Accused 1 he states:

“The evidence taken by me against the co-accused could not be treated as evidence against the absconding (accused) and as the accused Sanjeeva was not a party to the proceedings and had no opportunity to cross-examine.”

60. Nevertheless, on the submission made by the Prosecutor on 30-10-1954 that the accused might be committed for trial on the evidence on record the learned Magistrate passed the order of committal on 2-11-1954.

61. The learned Magistrate in the course of his order of committal supports his relying on the depositions recorded by him on the ground that he was satisfied that the accused was absconding and that there was no immediate prospect of apprehending him. This has been found to be without any basis. He also gives as an additional reason that all evidence recorded against the accused persons who were committed for trial was also evidence against accused 1 and it was tested in cross-examination by senior Counsel. Not only would such cross-examination not be the same thing as cross-examination by or on behalf of accused 1, but it might even tend to prejudice him as already, remarked above. The other reason given by the learned Magistrate is that accused 1 was undefended and that there being no provision for appointing a Standing Counsel it would be a meaningless formality to record mechanically the same depositions. This indicates that the learned Magistrate has not bestowed attention either upon the requirements or the object of S. 512 Cr. P.C The recording of evidence in the presence of the accused would not be a meaningless formality even if he were not represented by Counsel. It was a very important right which he had and which could not be denied to him, except in breach of a fundamental rule of all trials and particularly of Section 353 Cr. P.C The last reason given by the learned Magistrate is that several months had elapsed since the date of the occurrence, that a large number of witnesses had to be examined again and that this would cause more delay in the trial of the case apart from considerable inconvenience to the parties. It is true that there would be further delay and inconvenience. While these are unfortunate factors they would not justify the omission of an inquiry and treating as evidence depositions recorded contrary to the provisions of Sec. 512 Cr. P.C

62. As regards the conditions under which the depositions recorded under Sec. 512(a) Cr. P.C could be used, the learned Magistrate has paid no regard to the later part of the Sub-section. The depositions could be used after the arrest of the absconding accused only if the deponents were dead or incapable of giving evidence or if their attendance could not be secured without unreasonable delay, expense or inconvenience. In this case, the witnesses were inhabitants of neighbouring villages and had been actually examined only about two months previously. Further, they were to be examined as witnesses in the Sessions Court at the trial of the other accused. Even on this ground the committal of accused 1 on the basis of these depositions is illegal. As regards the failure of the learned Magistrate to examine additional witnesses, the learned Sessions Judge in the course of his reference says that it was incumbent upon him to examine these witnesses since Sec. 208 Cr. P.C makes it obligatory on the committing Court to take all such evidence as may be produced in support of the prosecution. This matter has been considered in the case reported in In Re Nanjappa, 501 Mys. H.C.R 364 (M), in which it is held that a committal without the examination of all the witnesses produced by the prosecution is illegal. It will be noticed that in the present case the additional witnesses were to speak specifically to the part played by accused 1 in the occurrence. The Prosecutor submitted a list of those witnesses on 30-10-1954, presumably as a result of further investigation after the arrest of the absconding accused and requested that they may be examined by the learned Magistrate. He renewed the application for their examination on 2-11-1954. On this the learned Magistrate took the view that the question of examining additional witnesses did not arise since he had committed the accused on the evidence on record. It is clear that the non-examination of the witnesses was totally unjustified and that the committal was vitiated on this amount also.

63. We, therefore, accept the reference made by the learned Sessions Judge and quash the order dated 2-11-1954 of the learned Second Magistrate, Chitaldrug, committing accused 1 Sanjeeva Naika to take his trial in the Court of Session for an offence under Sec. 302 I.P.C and direct the learned Magistrate to make an inquiry into the case of accused 1. Meanwhile, the trial of the other accused who have been committed to the Court of Session shall proceed.

D.S.P

Reference accepted.