Judgment:
K.L. Issrani, J.
1. This is a peculiar case where the accused- petitioner has been convicted for an offence Under Section 436 of the Indian Penal Code without affording proper opportunity to him to land his defence evidence. Not only that, but also his application for grant of certified copy of the order was refused by the Court and the learned counsel for the petitioner has filed before this Court the certified copy of his application on which the learned Judge in charge of the Copying Department has mentioned that the application was rejected as per order of the Assistant Sessions Judge as the same applicant had no right to get copy of order. The learned counsel for the petitioner has, therefore filed this revision petition quoting therein the order dated 21-12-1993 passed by the lower Court.
2. Submission of the learned counsel for the petitioner is that there has been a clear violation of the rights of the accused to defend himself for want of a copy of the impugned order in order to approach this Court. There has also been violation of the provisions of Sub sec. (3) of Section 233 and Sub-section (6) of Section 353 of the Code of Criminal Procedure. He, therefore, submits that the order of sentence passed against the petitioner deserves to be quashed and the proceedings remanded to the lower Court.
3. The learned Additional Standing Counsel for the State is not able to support the order passed by the lower Court.
4. It is wonderful to note that certified copies are not granted to the accused because of some order pased by the learned Assistant Sessions Judge. Paragraph 17 of the application made by the petitioner for grant of certified copy reads as under;
'Col. No. 17 (Remarks)
The application is rejected as per order of the A. S. J. as the same applicant has no right to get copy of order.'
There is no bar in law prohibiting supply of certified copy to the accused who wants to file an appeal or revision before the higher Courts Neither the Judge-in-charge of the Copying Department nor the Assistant Sessions Judge on whose order such copy was refused, has quoted the provisions of law which goes to show that either they are ignorant of the provisions of law or they do not care to go through the provisions of law. Such an order refusing the certified copy of the order is uncalled for in the history of the Judiciary.
4. Now, further I am to see whether there was any justification for the learned Assistant Sessions Judge in refusing the petitioner to summon the witnesses as applied for by him. The submission of the learned Counsel for the petitioner is that at no point of time before his chance came for defence, any adjournment was sought by him. On the contrary, adjournment was twice granted to the prosecution on the ground that the learned Assistant Public Prosecutor was absent. What I find from the record is that the statement of the accused was recorded Under Section 313, Cr PC on 17-12-19'3 and the case was fixed to 20-12 1993 for defence evidence, but on 18-12-1993 the learned counsel for the petitioner filed an application for summoning certain witnesses through Court. This application was put up for consideration on the same day, i. e. 20-12-1993. That day the application was rejected by the Court on the ground that there was no bar from the side of the accused to adduce the evidence of the witnesses and the summons to witnesses through Court would prolong the litigation and the accused may adduce their evidence if so likes without the assistance of the Court. The matter was then posted to the next day, i.e. 21-12-1993, when again request was made to the Court giving reasons for summoning the witnesses Under Section 233, Cr PC. It was also submitted by the learned counsel for the defence that one Revenue Inspector namely, Satish Chandra Mishra, was deputed by the Tahasildar. Bhuban to submit his report on the burnt house and the report of the Revenue Inspector was a very vital piece for defence of the accused. The other witnesses cited were Pabitra Biswal who is a lecturer, Prasanta Biswal, a respectable person of the locality and Purastama Patra who is a Gramarakhi. Except Prasanta Biswal, the other witnesses were Government servants and could not have been called for in defence without the permission of the Court. Even otherwise the case to be decided by the learned Assistant Sessions Judge was not of any serious offence but was one Under Section 436 of the Indian Penal Code.
5. The requirement of Sub-section (3) of Section 233, Cr PC is that the accused shall be called upon to enter his defence and adduce any evidence he may have in support thereof .........if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Trie learned Assistant Sessions Judge while rejecting the application of the petitioner to summon certain witnesses, has not considered any of the aforesaid grounds. Merely saying that there will be delay, without that being so, will not be sufficient to reject an application specifically when in this case statement Under Section 313. Cr PC was recorded on 17-12-1993 and the application was filed immediately thereafter, i.e. next day. Therefore, in any case there was no justification for the Assistant Sessions Judge to reject such application because 1 see no reason for delay on the part of the accused-petitioner. The witnesses cited by him were material for his defence plea and should have been summoned by the Court.
6. The other submission of the learned counsel for the petitioner is that on the date when the judgment was pronounced, the accused-petitioner was absent He points out that there has been violation of the provision of Sub-section (6) of Section 353, Cr PC Sub- sec. (6) of Section 353, Cr PC requires 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. In the present case, order dated 22-12-1993 passed by the lower Court shows that the accused was absent and the judgment finding the accused guilty was pronounced and non-bailable warrant was issued against the accused to show cause on the question of sentence. Therefore, it was neither a case where the accused was acquitted nor a cass of line or a case where his attendance was dispensed with In view of this also, there is clear violation of the provision of Sub-section (6) of Section 353, Cr PC committed by the teamed Assistant Sessions Judge.
7. The revision petition of the petitioner was admitted by this Court and the lower Court record was sent for and it was ordered that the non-bailable warrant issued against the petitioner shall not be executed.
8. In view of the patent illegalities committed by the learned Assistant Sessions Judge without compliance of the provisions of Sections 233 and 353 of the Code of Criminal Procedure and in order to give opportunity to the petitioner to lead defence evidence, the judgment of conviction passed by the lower Court is set aside and the application tiled by the petitioner before the lower Court for summoning his defence witnesses mentioned therein is allowed. Lower Court is directed to- issue summons to the witnesses mentioned by the petitioner in his application and after affording due chance to the defence, shall pass the judgment afresh I would have transferred the case to some other Prasiding Judge, but I am informed that the Presiding Judge has already been transferred in the meantime. The petitioner is directed to keep himself present before the lower Court on the 25th of October, 1994 when the Presiding Judge shall take up the matter and proceed according to law. The non-bailable warrant issued against the petitioner shall not be executed.