P L D 1963 Azad J & K 86 (PLP)

ABDUL HAMID KHAN, J.‑This is an appeal against the order of acquittal passed by the A. D. M. Pallandri, dated 11‑2‑

61. The accused‑respondents were challaned before the A. D. M. under sections 447/147, A. P. C. but they did not appear before the A. D. M. in spite of all the efforts to secure their personal appearance before the Court with the result that the Court proceeded to record the evidence against them under section 512, Cr. P. C. on proof of the fact that the accused person as had absconded and there was no immediate prospect of arresting them. After recording the evidence in the case the Court expressed the opinion that as the evidence was not satisfactory no process could be issued against the accused and then at the close of the judgment it passed an order acquitting the accused. It has been contended by the learned counsel. on behalf of the appellant that the proceedings under section 512, Cr. P. C. are neither trial nor enquiry and as such orders of acquittal in such proceedings could not be passed by the A. D. M. The learned counsel appearing on behalf of the accused respondent concedes that in the absence of the accused no order can be passed on merits after recording the statements of the prosecution witnesses under section 512, Cr. P. C. and that all that the Court can do, if it is not satisfied with the evidence produced by the pro secution is to refuse to issue process for the attendance of the accused as contemplated by section 204, Cr. P. C. We have read section 512, Cr. P. C. and we are clear in our mind that the object of recording evidence under section 512, Cr. P. C. is to preserve the evidence against the accused who have absconded and there is no immediate prospect of arresting them. Any such deposition may on the arrest of the accused be given in evidence against them on the enquiry into or trial for the offence with which they are charged if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience. No order can be passed on merits of the case under section 512, Cr. P. C. in the absence of the accused. We agree with the learned counsel for the appellant that the A. D. M. should not have passed an order of acquittal in the case after recording evidence of the P. Ws. under section 512, Cr. P. C. We also agree with the learned counsel for the respondents that if the Court finds that no case has been made out against the absent accused by the prosecution evidence it can at best refuse to issue process under section 204, Cr. P. C. for the attendance of the accused. Such an order in our opinion would not stand as bar in the way of police to arrest the absconding accused subsequently if they think so advisable and produce them for trial before the Court. We therefore accept the appeal and set aside the acquittal order passed by the A. D. M. dated 11‑2‑

62. We, however, do not interfere with the orders of the A. D. M. whereby he has refused to issue process for attendance of the accused. K. B. A. Appeal accepted.