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2008 DIGILAW 1063 (BOM)

Kanji R. Barot v. State of Maharashtra

2008-07-25

A.S.OKA

body2008
OKA A.S., J.: - Heard the learned Advocate for the Petitioner. The Advocate for the Petitioner states that a private notice has been served to the second Respondent at his business address as well as at his residential address. She stated that a notice is also served to the Advocate for the second Respondent appearing before the Appellate Court. An Affidavit of service will be filed within a period of two weeks from today. 2. The Petitioner has preferred an Appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). The Petitioner has challenged the order of conviction and sentence passed by the learned Magistrate. An application was made by the Petitioner on 26th June 2008 for grant of exemption from attendance on the ground that he was required to attend a business meeting and that he was represented by an Advocate. The said application has been rejected by the learned VIII Ad hoc Additional Sessions Judge by order dated 2nd ,July 2008. While, rejecting the said application, in paragraph 5 of the impugned order the learned, Judge has observed thus; "5. Chapter XXVII is consisting of section 353 to 365 of the Code of Criminal Procedure. On perusal of sub section (5) of section 353 of Code of Criminal Procedure it is seen that if the accused is in custody he shall be brought up to hear the judgment pronounced. While sub-section (6) of section 353 of Code of Criminal Procedure provides that if the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and sentence is one of fine only or he is acquitted. While sub-section (6) of section 353 of Code of Criminal Procedure provides that if the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and sentence is one of fine only or he is acquitted. If the provision laid down under section 387 of Code of Criminal Procedure is to be read with the provisions laid down under sub section (6) of section 353 of Code of Criminal Procedure it is seen that the only in exceptional circumstances the appellate Court can ex-empt the presence of the appellant at the stage of pronouncement of Judgment." (Emphasis added) In paragraph 6 of the order, the learned Judge noted that during the pendency of the Appeal, the presence of the Petitioner was not dispensed with by exercising power under section 205 of the said Code and an application for exemption has been made by the petitioner at the stage or the pronouncement of judgment. The learned counsel for the Petitioner fairly invited my attention to the decision of the learned Single Judge of this Court in case of (Moinoddin s/o Khodboddin Vs. State of Maharashtra), 105(2) Bom. L.R 296. While considering the proviso to section 387 of the said Code, the learned Single Judge of this Court has held thus: "Reading proviso to section 387 of the Cri. P.C., it may be argued that, it is not mandatory upon the Appellate Court to direct the accused to be brought up or required to attend to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of sections 387 r/w 353 15) and (6). Provisions regarding the judgment, as contained in Chapter XXVII of the Cri. P.C. are applicable to the judgment of Subordinate Appellate Court and in section 387 also the words used are "shall apply." The proviso to section 387, therefore. shall stand controlled by the provisions contained in section 353(5) and (6) and. therefore. the Subordinate Appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. shall stand controlled by the provisions contained in section 353(5) and (6) and. therefore. the Subordinate Appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once, the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip V. Stale of Maharashtra, (supra). the sub-ordinate Appellate Court would become functus officio and can not suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision." 3. It will be necessary to refer to the provision of section 387 of the said Code which reads as under: "387. Judgments of subordinate Appellate Court.- The rules contained in Chapter XXVII as to the judgment of a Criminal Curt of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of sessions or Chief Judicial Magistrate: Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered. 4. The first part of the section provides that the rules contained under Chapter XXVII as to the Judgment of criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in Appeal by a Court of Sessions or a Court of the Chief Judicial Magistrate. The effect of first part of section 387 is that the provisions incorporated in section 353 will apply, as far as it may be practicable, to the judgment in Appeal of the Sessions Court. Sub section 5 of section 353 provides that if an accused is in custody, he shall be brought up to hear the judgment pronounced. Sub-section (6) provides that if the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. Sub-section (6) provides that if the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. The proviso to section 387 carves out an exception to the provisions contained in Chapter XXVII. The rule incorporated under section 353 appears to be that in every case the presence of the accused at the time of pronouncement of judgment is mandatory except in a case where his personal attendance during the trial has been dispensed with and that the sentence is one of fine only or he is acquitted. Prima facie, the proviso to section 387, carves out an exception to sub section 5 and sub section 6 of section 353 in so far as the same are applicable to the Appeal before the Court of Sessions. The exception provides that unless the Appellate Court otherwise directs, the accused shall not be brought up or required to attend to hear the judgment pronounced. Thus, it appears to me on plain reading of the proviso to section 387 that the presence of accused at the time of the pronouncement of judgment of subordinate Appellate Court is required only when the Appellate Court specifically directs the accused to remain present. 5. With greatest respect to the view taken in case of Moinoddin (supra), I am of the view that the proviso to section 387 cannot be controlled by sub-section (5) and sub-section (6) of section 353 of the said Code and in fact the said proviso carves out an exception to the rules contained in sub-section (5) and sub-section (6) of section 353. In my view, this issue needs to be considered by a larger Bench of this Court. The issue which is required to be decided by the larger Bench is as under: "Whether the proviso to section 387 of the Code of Criminal Procedure, 1973 is controlled by sub section 5 and sub section 6 of section 353 of the said Code or whether the proviso carves out an exception to the rule contained in sub sections 5 and 6 of section 353 in so far as the same apply to the, Judgment in Appeal." 6. Hence, papers of this petition shall be placed before the Hon'ble the Chief Justice for passing an appropriate order in accordance with Rule 7 of the Chapter I of the Appellate Side Rules. As this issue arises in large number of cases, the Registrar (Judicial-I) will place this order before the Hon'ble the Chief Justice as expeditiously as possible. 7. Now, turning to the present case, I am of the view that it is not necessary to stay the proceeding of the Appeal. However, personal presence of the Petitioner at the time of pronouncement of the judgment can be dispensed with. 8. Rule returnable on 15th September, 2008. 9. Personal presence of the petitioner at the time of the pronouncement of judgment of the Sessions Court is dispensed with. Pendency of this petition will not prevent the Sessions Court from finally deciding Appeal. 10. Parties and the concerned Court to act upon an authenticated copy of this order. Rule returnable.