Orissa High Court
Banchhanidhi Singh Alias Nani Singh vs State Of Orissa on 14 July, 1989
Equivalent citations: 1990CRILJ397
ORDER V. Gopalaswamy, J.
1. This revision is preferred against the judgment of the learned Sessions Judge, Balasore, dated 29-7-1985 in Criminal Appeal No. 127 of 1985 confirming the order of conviction passed by the trial court in G. R. Case No. 1482 of 1981 convicting the accused under Section 379, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for one month.
2. The petitioner Banchhanidhi Singh was the owner of a cycle repairing shop near Bhograi market within Bhograi Police Station in Balasore district. On a consideration of the evidence of seven PWs examined by the prosecution, the learned Magistrate convicted the petitioner under Section 379, I.P.C. for having committed theft of the bicycle of the informant Bhaskar Chandra Patra (PW 2), valued at Rs. 200/-.
Out of seven witnesses examined by the prosecution, PWs 1 to 3 are the only material witnesses. PW 4 is not a material witness, as he admitted that he had only heard about the alleged incident regarding the keeping of the cycle in the zima of PW 3. PW 5 also is not a material witness as he does not state any thing about the accused or about the incident which he claims to have heard. PWs 6 and 7 are the police officers.
3. Through the evidence; of the prosecution witnesses PWs 1, .2, and 3 what all the prosecution could prove is that on the date of occurrence at about 10 a.m. as the informant (PW 2) was going on his cycle by the side of accused's cycle repairing shop, the accused had stopped the informant and snatched away his cycle and immediately thereafter kept the cycle in the zima of PW 3, a Daroga of the market and gave the receipt, Ext. 3, in evidence of it. The prosecution is silent regarding the motive which prompted the accused to snatch away the cycle from PW 2 and keep it in the custody of PW 3. Within few hours from the time the cycle was kept in the zima of PW 3, the police seized the same from PW 3 and delivered it to the informant. The petitioner has stated in the revision petition that some months prior to the date of occurrence he had repaired the cycle of PW 2 and PW 2 had taken away the cycle from him (the accused) without paying the repairing charges due to the accused, but promising to pay the same some time after and that as the repairing charges were still due to be paid by the date of occurrence, the accused took away the bicycle and kept it in the zima of PW 3, the market Daroga on the understanding that the cycle would be kept in the zima of PW 3 till the repairing charges of the accused were paid to him. As PWs 1, 2 and 3 could not be cross-examined, the above defence plea could not be suggested to them.
4. The learned counsel for the petitioner submitted that on 16-7-1983 when PWs 1, 2 and 3 were examined, neither the accused nor his Advocate was present in the court and this fact was asserted by the accused-appellant in his appeal memo. The said submission of the learned counsel for the petitioner is fully supported by the order-sheet dated 16-7-1983 of the trial court. The Criminal Appeal was heard on 22-7-1985 and on that day also at the time of hearing none appeared for the appellant and the judgment on merits was passed only on hearing the learned Public Prosecutor. Somehow, the attention of the learned Sessions Judge was not drawn to the fact that the material witnesses PWs 1, 2 and 3 in the case were examined in the absence of the accused and no Advocate on behalf of the accused was even present at the time of the examination of PWs 1, 2 and 3 and so PWs 1, 2 and 3 were not cross-examined.
5. Section 273 of the Code of Criminal Procedure provides : --
"Evidence to be taken in presence of accused. --Except as otherwise expressly provided, 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.
Explanation. --In this section, 'accused' including a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."
Section 273 of the new Code corresponds to Section 363 of the old Code.
The above quoted provisions of Section 273 would show that the evidence of witnesses has to be recorded in the presence of the accused or when his personal attendance has been dispensed with, in the presence of his pleader. On 16-7-1983, the date when PWs 1, 2 and 3 were examined, the personal attendance of the accused was dispensed with, but then when PWs 1, 2 and 3 were examined by the prosecution and their chief examination was being recorded, even the lawyer for the accused was not present in court. As the personal attendance of the accused-petitioner has been dispensed with, when the lawyer for the accused also was not present in the court at the time when the witnesses were to be examined, the court should have adjourned the case on that day to some other date, instead of proceeding with the examination of the prosecution witnesses and should have directed the accused to be present on that adjourned date. The examination of PWs 1, 2 and 3 in the absence of the accused, and when the lawyer representing him was also not present in the court, is in gross violation of the mandatory provisions of Section 273, Cr.P.C. and on that score alone the entire trial is vitiated. The view I have taken receives support from Ram Shankar Ray v. State of Bihar, 1975 Cri LJ 1402 (Pat). (See also Bigan Singh v. King-Emperor, AIR 1928 Patnal 143 : 29 Cri LJ 260, Bishnath v. Emperor, AIR 1935 Oudh 488 : 36 Cri LJ 1198 and Mrityunjoy Chatterjee v. The State, AIR 1955 Cal 439 : 1955 Cri LJ 1171.)
6. The appellate judgment of the learned Sessions Judge suffers from another serious infirmity. On 22-7-85 the appeal was heard. The order-sheet of the learned Sessions Judge dated 22-7-1985 shows that as none appeared for the appellant in spite of repeated calls, only the learned Public Prosecutor was heard and on 29-7-85 the judgment was pronounced dismissing the appeal. In Khaili v. State of U. P., 1982 SCC (Cri) 143, the Supreme Court held that howsoever diligent the learned Judge may be and however careful and anxious he may be to protect the interests of the appellants in the absence of their counsel, his effort cannot take the place of an argument by an Advocate appearing on behalf of the appellant and, therefore, in case an Advocate appearing for the appellants does not appear before the court and does not argue, the appellate Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. In this context, the decisions of this Court in S. Mohan Rao v. Bhubaneswar Rath, Vol. 58 (1984) CLT 585 : (1985 Cri LJ 228) and Prafulla v. Nabakishore, (1989) 2 OCR 354 may also be referred to. Relying on the above referred decisions, I hold that in the present case also, the learned Sessions Judge should have appointed a counsel amicus curiae to argue on behalf of the appellant. But instead of doing that, only the learned Public Prosecutor was heard and the appeal was disposed of on merits. Hence, on that score alone the judgment dismissing the appeal is liable to be set aside.
7. Now the question is whether the G.R. Case No. 1482 of 1981 should be remanded to the trial court for retrial. The alleged occurrence took place on 16-11-1981, that is about eight years back. The petitioner had to contest the case up to this Court. Considering the peculiar facts and circumstances of the case, it is not proper that the petitioner should be made to face the ordeal of a trial over again.
8. In the result, I acquit the petitioner of the charge under Section 379, I.P.C. and hereby set aside the order of conviction and sentence passed against him under Section 379, I.P.C. by the courts below and accordingly allow this revision.