Full Judgment
L.K. Mishra, J.
1. Even though the case has been listed for admission today, on the prayer and consent of learned Counsel for the parties, it is taken up for final disposal.
2. Heard learned Counsel for both sides.
The petitioner is an accused in G.R. Case No. 32 of 1991 of the Court of learned J.M.F.C, Khallikote for the offence under Sections 294/324/323/337/34 of I.P.C. On 9.4.2007 when the case was posted for judgment, the judgment could not be pronounced due to absence of all the accused persons including the present petitioner. Therefore, the judgment was kept in a sealed cover and N.B.W. was issued against the accused persons. On 27.8.2008 the present petitioner was arrested, produced before the Court and remanded to custody. A petition was filed on behalf of the petitioner under Section 353(5) of the Code of Criminal Procedure, 1973 (in short 'the Cr.P.C') to pronounce the judgment. Another petition was filed to grant bail to him in the alternative. The learned Magistrate vide order dated 12.9.2008, which is impugned herein, rejected the petitions occasioning the present revision.
3. A perusal of the impugned order shows that the learned Court below did not apply his mind to the relevant provision of law nor the same was brought to his notice. The proper provision of law is the proviso to Section 353(1)(6) of the Cr.P.C. which reads as follows:
353. Judgment.-(1) xx xx xx xx
xx xx xx xx xx xx
xx xx xx xx xx xx
(6) 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 the fine only or he is acquitted:
Provided that, where there are more accused than one, and one or more of them do attend the Court on the date on which the judgment is to be pronounced, the Presiding Officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
A close perusal of the above provision shows that the Presiding Officer may pronounce the judgment in absence of other accused persons when one of them is present in order to avoid delay notwithstanding the absence of the other accused persons. If the accused is in custody; he has to be brought up to hear the judgment pronounced as per Sub-section (5) of Section 353 of Cr.P.C. In the present case, one of the accused is available. He is also in jail, by now, for more than a month. Why the learned trial Court has not pronouncing the judgment against the available accused resorting to the proviso of Sub-section (6) of Section 353 of Cr.P.C. is beyond comprehension. In any event the procedure adopted by him is not sanctioned by law and is totally unwarranted. If one of the accused is available and the judgment is ready and is in seal cover, it is his bounden duty to pronounce the same. He has no authority to stall the trial awaiting apprehension of other accused persons just so that he can have the convenience of pronouncing the judgment in presence of all the accused persons. For the shake of argument if it is assumed that the other accused persons are not apprehended for a period of say 10,15 or 20 years, then would the present accused languish in jail for such length of time without either being convicted or acquitted. The very idea of an accused languishing in jail in this manner for an indefinite period without even knowing his fate is repugnant to the concept of fair trial and is dangerous to say the least. The order is thus clearly unsustainable.
4. In the result the revision is allowed. The impugned order is set aside. The trial Court is directed to pronounce the judgment in the case with immediate dispatch.