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HIGH COURT OF ORISSA
RAY,NARASIMHAM, JJ.
Trilochan Misra
Versus
State
Criminal Revn. No.169 of 1950
Decided On : 23-07-1951
CRIMINAL PROCEDURE CODE - SECTION 540A - INAPPLICABILITY - TRIAL IN ABSENCE OF ACCUSED - IRREGULARITY - SECTION 537 - SENTENCE - REDUCTION.
Fact of the Case:
The petitioners were convicted under Section 147, IPC, for rioting and sentenced to four months' rigorous imprisonment. They also appealed against an order under Section 106, CrPC, directing them to execute bonds for Rs.500/- each with two sureties of like amount for maintaining peace for two years.
Finding of the Court:
The court found that the trial magistrate had wrongly applied Section 540A, CrPC, during the trial of the accused, which resulted in the trial proceeding in the absence of some of the accused persons. However, the court held that this error was a mere irregularity curable under Section 537, CrPC, and did not vitiate the entire proceeding.
Issues: 1. Whether the trial magistrate erred in applying Section 540A, CrPC, during the trial of the accused, resulting in the trial proceeding in the absence of some of the accused persons? 2. Whether the inadequate examination of the accused persons under Section 342, CrPC, prejudiced the accused?
Ratio Decidendi: 1. Section 540A, CrPC, is inapplicable to cases where the accused persons are merely inconvenienced or face heavy expenditure by being required to attend the magistrate's court on every date of hearing. The words "incapable of remaining before the Court" in Section 540A(1), CrPC, relate to incapacity arising from illness or other reasons such as social ban or peculiar customs. 2. The error committed by the magistrate in applying Section 540A, CrPC, was a mere irregularity curable under Section 537, CrPC, and did not vitiate the entire proceeding. 3. The inadequate examination of the accused persons under Section 342, CrPC, did not prejudice the accused as no adverse inference was drawn against them on account of their conduct or failure to explain certain circumstances.
Final Decision: The court dismissed the revision petition and upheld the conviction of the petitioners under Section 147, IPC. However, the court reduced their sentence to a fine of Rs.25/- each, in default of which they were to undergo rigorous imprisonment for fifteen days each. The order of the trial court directing the petitioners to execute bonds for Rs.500/- each with two sureties of like amount for maintaining peace for two years was maintained.
Judgement
NARASIMHAM, J. :- This revision is against the appellate judgment of the learned Additional Sessions Judge of Ganjam-Nayagarh maintaining the convictions of the petitioners under S.147, I.P.C., and the sentence of four months rigorous imprisonment passed by a 1st Class Magistrate of Khurda. The learned Additional Sessions Judge further maintained the order under S.106, Cr.P.C., passed by the Magistrate directing the petitioners to execute bonds for Rs.500/- each with two sureties of like amount for maintaining peace for a period of two years.
2. It is unchallenged that in 1947 acute party factions were prevailing between some residents of village Chasangar on the one hand and those of Mangalpur on the other in Banpur thana of Puri District. Several litigations, civil and criminal were fought out between the two factions and the occurrence out of which the present revision has arisen is said to have taken place in consequence of this bitter enmity. All the petitioners except Trilochan and Biswanath are residents of village Chasangar. The complainants party are all residents of village Mangalpur. The prosecution case is that at about 10 A.M. on 8-7-1947 the petitioners lay in ambush and severely belaboured the complainants party consisting of about eight persons when they appeared near a brinjal field in Mangalpur. Four persons were injured on the complainants side but none of the petitioners sustained any injury. Both the lower Courts have accepted the essential facts of the prosecution case regarding the presence of the sixteen petitioners at the spot and their joining in the assault on the complainants party. The trial court, however, believed the prosecution evidence regarding the specific part ascribed to some of the petitioners and convicted them under Ss.323, 324 and 325, I.P.C., in respect of the assaults committed by them. The lower appellate Court however thought it unsafe to accept the prosecution evidence regarding the part played by each of the petitioners in the commission of the crime; but it accepted the prosecution story regarding the presence of the sixteen petitioners at the spot and their participation in the assault on the complainants party in furtherance of their common object. Consequently, the charge under S.147, I.P.C., against all the 16 petitioners seems to have been established beyond any doubt and as the finding on this point is a pure finding on facts, in which the two Courts below have taken a concurrent view, I am not inclined to interfere.
3. Mr. Ray learned counsel for the petitioners raised the following two important points of law.
(1) The trying Magistrate wrongly applied section 540A, Cr.P.C., during the trial of the accused and consequently the entire proceeding was vitiated inasmuch as a substantial part of the trial took place in the absence of some of the accused persons.
(2) There has not been adequate examination of the accused persons under S.342, Cr.P.C., and the accused have been materially prejudiced thereby.
4. To appreciate the first point it is necessary to briefly recapitulate certain facts which took place during the trial. The trial was held by three Magistrates in succession and Mr. S. Mohanti was in charge of case in the middle stage. On 5-3-48 when the trial continued before him all the accused persons were present. On the next date 23-3-48, a petition was filed on behalf of the accused persons requesting the Magistrate to exempt all of them except Biswanath from personal attendance inasmuch as they were poor cultivators and they would be put to very heavy expenditure in appearing at every date of the trial. The learned Magistrate passed the following order : "Allowed. Put up with records on the date fixed." Then on 13-5-48 he passed a formal order in the order-sheet to the following effect.
"The prayer of the accused for being represented is allowed because it is difficult for all the 16 accused persons to attend personally every time as they are earning members. To a
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