Suraj Suraju Prasad Sahu And Others v. State Opp. Party.

S. Acharya, J.:— The petitioners stand convicted under section 7 of the Essential Commodities Act, 1955, (hereinafter referred to as “The Aot”) and has been sentenced thereunder to undergo rigorous imprisonment for 2 months.

2. On hearing the counsel for both the parties and on joining through the judgments of the appellate and the trial Court and other relevant papers on record, I find that several illegalities and irregularities have been committed at the trial stage. The charge framed against the petitioner does not mention the particular order made under section 3 of the Act which has been contravened so as to be punishable under section 7 of the Act. At the stage of examining the petitioner under section 342, Criminal Procedure Code the trial Court, instead of personally examining the accused persons, examined only the Advocates who represented the accused persons in that Court and in convicting the petitioners, both the Courts have taken into consideration such statements made by the Advocates as if they were made by the petitioners themselves.

3. Morever it appears from the trial Court's order No. 42 dated 31-3-1970 that the judgment of the trial Court, convicting the two petitioners under section 7 of the Act and sentencing them thereunder to rigorous imprisonment for 2 months was pronounced on that date in the absence of the accused persons from the Court.

4. The law is now well settled that the pleader for the accused may be permitted to represent him while the prosecution evidence is being taken, but at the close of the prosecution evidence, the accused in person must be questioned under section 342, Criminal Procedure Code to enable him to explain the circumstances appearing against him in the prosecution evidence and bis pleader cannot be examined in his place for the said purpose. The law on this aspect of the matter has been discussed and settled in the decision respected in Bibhuti Bhusan Das Gupta v. State of West Bengal . A.I.R 1969 S.C 381., where it has been held:

“It is from the scheme, purpose and language of section 342 that we are driven to the conclusion that the examination under the section must be of the accused person and not his pleader.”

5. Later at another place their Lordships held that the examination of the pleader of the accused is not sufficient compliance with section 342. The decision of this Court reported in Fakir Sha v. Upendra Sha . I.L.R 1971 Cuttack 82., may also be seen in this connection.

6. It is seen from the judgment of the appellate Court that the petitioners agitated this matter in the appellate Court by contending that they had been prejudiced by not getting any opportunity to explain away the incriminating circumstances appearing against them in the prosecution evidence as provided under section 342, Criminal Procedure Code. This matter has again been raised in this revision. They possibly could not personally complain against the aforesaid non-examination as they were all through allowed to be represented by their pleaders and were absent even on the date when the judgment against them was pronounced by the trial Court. In the context of the above facts the complaint put up on behalf of the petitioners for the non-compliance of the provisions of section 342, Criminal Procedure Code is not without and weight and substance.

7. Sub-section (2) of section 366 of the Criminal Procedure Code provides as follows:—

“The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, 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 either of which case it may be delivered in the presence of his pleader.”

8. From the above it is quite evident that it is the duty of the trial Court to secure the attendance of the accused in Court, at the time of delivering a judgment of conviction by which the accused in sentenced to a substantive sentence of imprisonment. In the present case, as stated above, the judgment of conviction sentencing the petitioner to undergo rigorous imprisonment for 2 months, was delivered in the absence of the petitioners. Accordingly there has been non-compliance also of the above provisions of the Criminal Procedure Code.

9. The judgment of the appellate Court is perfunctory and slip shod as the above aspects of the matter were not at all taken into consideration, and there is no proper consideration of the relevant evidence on record for the conclusions and findings arrived therein. Accordingly, the impugned judgment also is not in accordance with law.

10. In view of all that has been stated above, I find that this is a fit case in which the conviction and sentence of the petitioners passed in the defective trial and confirmed by the appellate Court in the aforesaid perfunctory manner should be set aside and the case should be remanded to the trial Court for retrial in accordance with law from the very beginning with a proper charge framed against the accused persons. The case should be disposed of as quickly as possible with intimation to this Court.

11. In the result, therefore the judgment of both the trial and the appellate Courts and consequently the order of conviction and sentence against the petitioners are hereby set aside, and the case is remanded to the trial Court for a fresh trial of the accused persons in accordance with law from the very beginning.

12. The revision is allowed and disposed of in accordance with the above order. The lower Court records be sent back immediately.

13. Revision allowed & Case remanded.