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ORISSA HIGH COURT
V. Gopalaswamy, J.
Banchhanidhi Singh @ Nani Singh – Petitioner
versus
State of Orissa - Respondent
Crl. Rev. No. 365 of 1985
Decided on 14-7-1989
Counsels for the parties:
M/s. S.P. Dhal, R. Ray, B. Pujari, B.C. Ray, D. Nayak and T. Mohapatra, Advocates - For the Petitioner.
P. K. Mohanty Advocate - For the Respondent.
IMPORTANT POINT
Examination of the materials witnesses 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 of Criminal Procedure Code, 1973.
Headnote:(i) Criminal Procedure Code, 1973 - Section 273 - Indian Penal Code, 1860 - Section 379 - Conviction under – Challenged - Examination of material witnesses in the absence of the accused, and when the lawyer representing him was also not present in the court- amounts to gross violation of the mandatory provisions of Section 273 - entire trial stands vitiated - Order of acquittal as it is not proper that .the petitioner should be made to face the trial over again considering that the alleged occurrence took place in 1981. (Paras 5 & 7)
(ii) Criminal Procedure Code, 1973 - Section 273 - Indian Penal Code, 1860 - Section 379 - Conviction under - Appeal against - None appeared for the appellant inspite of repeated calls - Appeal dismissed on hearing the public prosecutor only – Revision -Whether the impugned order is legally sustainable? - (No, the appellate judge should have appointed a counsel amicus curiae and then have proceeded to dispose of the appeal on merits.) (Khaili's case: 1982 S.C.C. (Cel) 143: followed) (Para 6)
Result: Revision Allowed.
JUDGMENT
V. Gopalaswamy, J.- This revision is preferred against the judgment of the learned Sessions Judge, Balssore, dated 28-7-1985 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 of the Indian Penal Code and sentencing him thereunder to under to 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 Balssore district on a consideration of the evidence of seven P.Ws. examined by the prosecution, the learned Magistrate convicted the petitioner under Section 379 of the Indian Penal Code for having committed theft of the bicycle of the informant Bhaskar Chandra Patra (P.W. 2), valued at Rs. 200/-.
Out of seven witnesses examined by the prosecution, P.Ws. 1 to 3 are the only material witnesses. P.W. 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 P.W. 3. P.W. 5 also is not a material witness as he does not state anything about the accused or about the incident which he claims to have heard P.Ws. 6 and 7 are the police officers.
3. Through the evidence of the prosecution witnesses P.Ws. 1, 2 and 3 what all the prosecution could prove is that on the date of occunence at about 10 a.m. as the informant (P.W. 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 there after kept the cycle in the zima of P.W. 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 P.W. 2 and keep it in the custody of P.W.3 with in few hours from the time the cycle was kept in the zima of P.W.3 the police seized the same froln P.W. 3 and delivered it to the informant. The petitioner has stated in the revision petition that some months prior to the date of occunence he had paired the cycle of P.W. 2 and P. W. 2 had Jaken away the cycle from him (the accused) without paying the repairing charges due to the accused, but promising to pay the same some I time after and that as the repairing charges were still due to be paid by the date of occunence, the accused took away the bicycle and kept it in the zima of P.W. 3 the market Daroga on the understanding that the cycle would be kept in the zima of P.W. 3 till the repairing charges of the accused were paid to him. As P.Ws. 1, 2 and 3 could not be cross-examined, the above defence plea coul£not be suggested to them.
4. The learned Counsel for the petitioner submitted that on 16-7-1983 when P.Ws. 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 ordersheet 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 Judges was not drawn to the fact that the material witnesses P.Ws. 1, 2 and 3 in the case were examined in the abuse of the accused and no Advocate on behalf of the accused was even present at the time of the examination of P.Ws. 1, 2 and 3 and so P.Ws. 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 presonal attendance is dispensed with, in the presence of his pleader.
Explanation: In
