Patna High Court
Case Details
Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.36399 of 2012 ====================================================== Ajay Kandu @ Ravijee @ Ajay Kanu, S/o Fagu Prasad, Resident of Village-Chauhar, P.S. Karpi, District- Arwal. .... .... Petitioner. The State of Bihar Versus .... .... Opposite Party. ====================================================== Appearance : For the Petitioner : Mr. Krishna Pd. Singh, Senior Advocate. Mr. Saket Kumar Singh, Advocate. For the State : Mr. Shailendra Kumar-I, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 10-05-2013 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. This is an application for quashing the order dated 22.05.2012 passed by Sri Shahid Rais, Additional Sessions Judge F.T.C.II, Jehanabad in Sessions Trial No. 125 of 2011 by which evidence of witness has been recorded after dispensing with his personal appearance of accused in absence of the accused when the accused is incarcerated in Adarsh Kara Beur Jail and not produced even after direction of the court to produce the accused rejecting the plea of the learned counsel for the petitioner that he has no instruction and hence the witness has been examined in absence of the accused. 3. The fact in narrow compass the trial is pending in the court of Additional Sessions Judge, F.T.C.II, Jehanabad, for offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The accused incarcerated in Beur
Facts
Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 2 Jail. He was not being produced in court. The case was fixed on 22. 03. 2012, the accused was not produced. The attendance of the witness was filed. A letter was received from the Beur Jail to the court vide memo no. 16424, dated 23. 03. 2012 that accused could not be produced, due to holiday declared on 22. 03. 2012 with a prayer to transmit fresh date of proceeding so that accused may be produced on the date fixed. The court intimated the next date on 25.04.2012 with a direction to Jail Superintendent to produce the accused Ajay Kandu, the petitioner. On 25. 04. 2012, accused was not produced, though, the witness was in attendance but P.O. was on leave, so the next date fixed was on 25. 05. 2012. 4. on 25. 05. 2012, Hazri of a witness was filed for evidence. The accused was not produced from jail. The defence counsel submitted that the accused has not been produced. He has no instruction for examination of the witness. Hence he is unable to cross-examine the witness so the case be adjourned. It is further submitted that he has filed the petition on the ground mentioned above in his petition dated 23. 03. 2012, so an order be passed on petition. 5. A submission was made by the learned A.P.P. that witness can be examined and cross-examined in absence of the accused under Section 317 Cr.P.C. by dispensing with personal appearance of the accused. 6. The Additional Sessions Judge considering the fact Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 3 and circumstance of the case and considering the submission on behalf of the parties ordered on 22. 05. 2012; “…………I do not feel any inconvenience in recording the evidence of the witness is presence of defence counsel and I feel in no way it will prejudice the case of defence when his counsel is present in court and watch the entire proceeding……” The learned Additional Sessions Judge disposed off the petition dated 23. 03.2012. Thereafter, he examined the witness in attendance. The defence counsel refused to cross-examine the witness. The witness was discharged.
Legal Reasoning
with the accused, it is well settled that the examination of witness in the absence of accused invalid the trial. The fact that no objection raised even is immaterial. 19. Hence the order impugned holding that the recording the evidence in the absence of the accused present in court will not prejudice the accused as the counsel of the accused is present to watch the proceeding is not sustainable in law. The lawyer of the accused has duty to defend the accused by effective cross-examination of the witness and not merely present to watch the proceeding. He cannot effectively cross-examine the witness without consultation and communication with accused and the presence of the accused in such circumstance is necessary for effectively cross-examine the witness and suggest probable defence which is not possible in the absence of the accused particularly in trial of serious offence under Section 302 of Indian Penal Code. It is not in the interest of justice to proceed with trial Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 10 and recording the evidence in the absence of the accused unless the counsel for the accused gives consent for conduct of trial. 20. Hence taking into consideration the entire fact and circumstance of the case the impugned order recording the evidence of the witness dispensing with personal appearance of the accused is set aside as it is not sustainable in law. The trial court is directed to proceed with trial in accordance with law giving opportunity to accused to defend himself. 21.
Arguments
7. The learned counsel for the petitioner challenge the order impugned dated 25. 05. 2012 before this Court. It is submitted that recording the evidence of the witness in absence of accused cannot be in the interest of justice as it amount to proceeding with trial without giving opportunity to accused to defend himself and the order is in strict violation of section 317(1) Cr.P.C. as the condition to dispense with personal appearance has not been satisfied. 8. The learned counsel for the State however supported the order that Section 317 Cr.P.C. provides jurisdiction to the Judge or Magistrate to dispense with personal appearance. Hence order well within Section 317 Cr.P.C. 9. On respective submission the question for consideration whether the order impugned passed in consonance Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 4 with condition mention in Section 317 (1) i.e. whether recording evidence in the absence of the accused will prejudice the case of the defence when the counsel of the defence is present in court and watch the proceeding and whether the presence of the accused is necessary while recording the evidence of the witness in the interest of justice or not. 10. Hence to consider the issue it is relevant to quote Section 317 (1); “ (1) At any stage of inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceeding in court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, any may, at any subsequent stage of the proceedings, direct the personal attendance of such accused”. 11. So from bare perusal of Section 317 Cr.P.C. it is apparent that it envisages two conditions when the Judge or Magistrate can dispense with personal appearance of the accused to proceed with the trial. The first condition is when the Judge of Magistrate is satisfied with reason to be recorded that personal attendance of accused before court is not necessary in the interest Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 5 of justice. The second condition is when the accused persistently disturb the proceeding of the court. We are here not concerned with the second condition. Though, the first condition is of concern which needs consideration. 12. So the first condition to dispense with personal attendance of accused can be made on ground that the personal attendance of the accused before the court is not necessary in the interest of justice. The Judge has to record the reason. Here the fact remains that accused not produced from jail. The attendance of witness filed. The learned counsel for the accused submits that he is unable to cross-examine the witness as he has no instruction to cross-examine the witness. Under this fact it has been held that recording the evidence of witness will not prejudice the case of defence when the counsel for the defence is present to watch the proceeding. Hence the question is whether recording the evidence in the fact and circumstance dispensing with personal appearance of accused is in the interest of justice is the mute question. In other words whether under the fact and circumstance the attendance of the accused before the court is not necessary while recording the evidence is or is not in the interest of justice. 13. To answer the question, it is relevant to consider and quote Section 273 Cr.P.C. “Except as otherwise expressly provided, all Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 6 evidence taken in 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”. 14. From bare perusal of Section 273 Cr.P.C. it is apparent that all the evidence required to be recorded in the presence of the accused or in presence of the pleader “ when the personal attendance of the accused is dispense with.” However Section 273 Cr.P.C. does not confer power to dispense with personal appearance of the accused. The wording of Section “when the personal attendance dispense with,” indicates as such but the condition under which personal attendance dispense with has not been given or mention in the Section. 15. However, the power to dispense with personal appearance is provided in Section 205 Cr.P.C. and Section 317Cr.P.C. The provision to dispense with personal appearance under Section 205 Cr.P.C. are in case where the Magistrate issues summon but is not applicable in warrant case where the accused has been arrested and incarcerated in jail. Here it is not dispute that the accused is in jail for an offence under Section 302 of Indian Penal Code. Hence only power remain to dispense with personal appearance under Section 317 Cr.P.C. 16. Reverting back to Section 273 Cr.P.C. which provides that all evidence required to be recorded in presence of Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 7 the accused and in case the personal attendance of the accused dispense with in presence of his pleader. However, the power to dispense with rest under Section 317(1) Cr.P.C. with condition that the presence of the accused is not necessary in the interest of justice. if the personal attendance of the accused not required in the interest of justice then the order survive, but if the personal attendance of the accused require is not in the interest of justice then order to dispense with personal appearance will not survive and in such case the recording evidence in absence of accused is hit by Section 273 Cr.P.C. Hence the question for consideration whether personal attendance of the accused in court is necessary while recording the evidence of the accused when the plea of counsel for the accused that he has no instruction to cross- examine the witness. 17. Section 273 Cr.P.C. provides that evidence of the witness to be recorded in presence of the accused. The term presence under Section 273 Cr.P.C. signifies that the accused must be given all opportunity to defend himself by testing the veracity of the witness in cross-examination. The presence of the accused in court while recording the evidence of the witness given the opportunity to the accused to mark the demeanour of witness, hear the evidence of the witness and to immediately suggest the counsel or his pleader to effectively cross-examine the witness to unvail the truth. The consultation and Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 8 communication between the accused and his pleader is the basic requirement of giving opportunity to accused to defend himself. This is the basic requirement for fair trial. It is not possible to effectively cross-examine the witness without consultation and communication between the accused and pleader nor is possible to suggest probable defence. Any defence suggested without the instruction or consultation or communication between the accused and his pleader or in absence of the accused in court during the evidence of the witness amount to defence taken which the accused petitioner would never have been taken , but for which the accused must be responsible. Such a trial in absence of the accused in court without consultation and communication between the accused and his pleader is neither in the interest of justice nor can be said to fair trial as it devoid the accused to properly defend himself from criminal prosecution. Hence the finding that the evidence of the witness in a circumstance that accused not produced from jail and the pleader not get opportunity to consult the witness is not prejudice the accused is not sustainable in eye of law. It cannot be said that the personal attendance of accused is not necessary in the interest of justice to attract Section 317 Cr.P.C. Hence the order passed and reason recorded that the absence of the accused in court for recording the evidence of the witness does not prejudice the accused is not sustainable.; if the order dispensing with personal Patna High Court Cr.Misc. No.36399 of 2012 (3) dt.10-05-2013 9 attendance is not sustainable then the recording the evidence in the absence of the accused is not permissible in law. 18. However, imagine a situation when accused not produced from jail in the court where trial is pending, the court proceeded for trial by appointing a lawyer on his behalf dispensing with personal attendance of the accused and allowing to proceed with evidence of the witness in the absence of the accused and in the absence of any consultation of the pleader
Decision
Accordingly, the petition is allowed. m.p. (Gopal Prasad, J)