In our view, the said proviso carves out
an exception to the general rule which is
provided under Section 353(5) and (6) of the
Code. We, therefore, disagree with the view
expressed by the learned single judge Shri.
N.V. Dabholkar, J. recorded in the case of
Moinoddin s/o.Khodboddin vs. State of
Maharashtra(supra). The said issue is answered
accordingly. {Para 8}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1455 OF 2008
Kanji R. Barot V The State of Maharashtra & Ors.
CORAM : V.M. KANADE & P.D. KODE JJ.
JUNE 12, 2014.
Citation: 2008 BCR CRI 2 881, 2008 BOMCR CRI 2 881
P.C. :-
1. It appears that in this case in view of
the reference made by the learned single judge
(Coram: Shri A.S. Oka, J.) vide judgment and
order dated 25th July,2008 in Criminal Writ
Petition No.1455 of 2008, the matter has been
referred to the Division Bench. The issue
which has been referred to the Division Bench
is as under:
“Whether the proviso to section 387 of
the Code of Criminal Procedure, 1973 is
controlled by sub section 5 and sub section
6 of section 353 of the said Code or
whether the proviso carves out an exception
to the rule contained in sub sections 5 and
6 of section 353 in so far as the same
apply to the Judgment in Appeal ? ”
2. The learned single judge did not concur
with the view expressed by the another learned
single judge Shri N.V. Dabholkar, J. recorded
in “Moinoddin s/o.Khodboddin vs.State of
Maharashtra 105(2) Bombay Law Reporter, page
2961”. The said learned judge observed that
the proviso to section 387 of Code of Criminal
Procedure is required to be read in the light
of section 387 read with 353(5) and (6). The
learned single judge thereafter observed that
the subordinate appellate Court would be
obliged to secure the presence of accused for
pronouncing of judgment, except in the cases
where the judgment is of acquittal or one of
fine.
3. In order to consider the said issue, it
will be necessary to read the provisions of
section 353(5) and (6) of the Code of Criminal
Procedure.
4. Section 353(5) of the Code read as under:
“If the accused is in custody, he
shall be brought up to hear the
judgment pronounced.”
Section 353(6) of the Code read as under:
“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.”
5. The said provisions appearing under
Chapter XXVII deal with the judgment which is
delivered in every trial in any criminal
Court. The provisions therefore lead to the
procedure which has to be followed before the
delivery of judgment by the trial Court. Sub
sections (5) and (6) of Section 353 clearly
disclose that the accused has to be produced
before the trial Court to hear the judgment
which is pronounced.
6. So far as, section 387 of the Code is
concerned, that pertains to the judgment which
is to be delivered by the subordinate
Appellate Court. Said section reads as under:
S.353: “The rules contained in Chapter
XXVII as to the judgment of a Criminal
Court of original jurisdiction shall
apply, so far as may be practicable, to
the judgment in appeal of a Court of
Session or Chief Judicial Magistrate.
Provided that unless the Appellate Court
otherwise directs, the accused shall not
be brought up, or required to attend, to
hear judgment delivered.”
7. If the said provision is perused, it would
be clear that the proviso to section 387 of
the Code has been added as an exception to the
main section. Therefore, it is abundantly
clear though the rule contained in Chapter
XXVII, so far as the judgment of criminal
Court of original jurisdiction(trial Court),
applies to the judgement in appeal of
appellate subordinate Court, the proviso gives
discretion to the appellate Court whether it
thinks it fit and proper for the accused to be
brought in Court to hear the judgment to be
delivered.
8. In our view, the said proviso carves out
an exception to the general rule which is
provided under Section 353(5) and (6) of the
Code. We, therefore, disagree with the view
expressed by the learned single judge Shri.
N.V. Dabholkar, J. recorded in the case of
Moinoddin s/o.Khodboddin vs. State of
Maharashtra(supra). The said issue is answered
accordingly.
9. Matter be placed before the appropriate
learned single judge.
(P.D. KODE, J.) (V.M. KANADE, J.)
No comments:
Post a Comment