IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.862 of 2019
Arising Out of PS. Case No.-113 Year-2012 Thana- KATORIYA District- Banka

1. SAJID ANSARI AND ORS. Son of Ajmul Ansari resident of village-

Ghormara, Police Station-Katoria, District-Banka.

2. Chunna Mian Son of Rabul Mian @ Rebul Mian resident of village-

Ghormara, Police Station-Katoria, District-Banka.

3. Mandla Mian, Son of Salim Mian @ Salim Ansari resident of village-

Ghormara, Police Station-Katoria,District-Banka.
… … Appellant/s
Versus
THE STATE OF BIHAR .. … Respondent/s

with
CRIMINAL APPEAL (SJ) No. 1438 of 2019
Arising Out of PS. Case No.-113 Year-2012 Thana- KATORIYA District- Banka

MD. IBLAWUE @ IBLAQUE ANSARI @ IDLAQUE ANSARI Son of
Taiyab Ansari Resident of Village – Ghormara, P.S.- Katoria, Distt – Banka.

… … Appellant/s
Versus
THE STATE OF BIHAR … … Respondent/s

Appearance :

(In CRIMINAL APPEAL (SJ) Nos. 862 of 2019 + 1438 of 2019)
For the Appellant/s : Mr. Satish Chandra Mishra
Mr.Md. Nurul Hoda, Advocates.

For the Respondent/s : Mr.Sujit Kumar Singh, APP
Mr. Binod Bihari Singh, APP
For the Informant : Mr. Ajay Kumar Mukherjee, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

10-07-2019 Both the criminal appeals arise out from common

judgment of conviction and sentence dated 25.01.2019 passed

by Fast Track Court-I, Banka relating to Sessions Trial No.

1137/2012 as well as 795/2013 arising out of Kotoriya PS Case

No. 113/2012 on account thereof, there has been analogous

hearing and are being disposed of by a common judgment.
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2. From the judgment impugned, it is evident that

all the appellants, namely, Md. Iblawue @ Iblaque Ansari @

Idlaque Ansari, Sajid Ansari, Chunna Mian, Mandla Mian have

been found guilty for an offence punishable under Section 366A

of the IPC and sentenced to undergo RI for 10 years, in likewise

manner, under Section 366 of the IPC and sentenced to undergo

RI for 10 years as well as to pay fine appertaining to Rs.

25,000/- and in default thereof, to undergo RI for one year.

3. It is the case of the prosecution by way of filing

of written report at the end of Bishnu Kumar (PW 5) on

12.06.2012 at 7:30 PM disclosing therein that since evening of

11.06.2012, his sister (name withheld) found missing. It has

further been disclosed that his mother has narrated that she has

seen Md. Iblawue @ Iblaque Ansari @ Idlaque Ansari, Sajid

Ansari, Chunna Mian, Mandla Mian talking with the victim. He

has further disclosed the age of the victim to be 17 years. So, he

apprehended that these four persons are responsible for getting

her enticed away with ulterior motive.

4. After registration of Katoriya PS Case No.

112/2012, investigation commenced and as is evident, charge-

sheet was submitted on 14.09.2012 against the accused, Md.

Iblawue @ Iblaque Ansari @ Idlaque Ansari keeping
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investigation pending against remaining, namely, Sajid Ansari,

Chunna Mian, Mandla Mian whereupon, the learned lower court

took cognizance of an offence and accordingly, after performing

mandatory requirement so envisaged under Section 207 CrPC,

the case was committed whereupon Sessions Trial No.

1137/2012 commenced. It is further evident that in due course

of time, charge-sheet has been submitted against the remaining

accused, namely, Sajid Ansari, Chunna Mian, Mandla Mian and

accordingly, after committal Sessions Trial No. 795/2013 has

been registered. It is further evident that at an earlier occasion,

charge was framed against Md. Iblawue @ Iblaque Ansari @

Idlaque Ansari on 28.01.2013 under Section 366A/Section34 of the IPC

and subsequently, charge under Section 366 of the IPC has also

been added on 07.02.2014 on the prayer of prosecution, though

rejected to add Section 376 IPC, which she (victim) had alleged

and then she was cross-examineed and discharged. It is further

evident that in Sessions Trial No. 795/2013 accused, Sajid

Ansari, Chunna Mian, Mandla Mian were charged under

Section 366/Section34 of the IPC on 20.12.2013. It is further evident

that in Sessions Trial No. 795/2013, PW-1, the victim has been

examined on 01.05.2014. In Sessions Trial No. 1137/2012, the

victim was examined on 23rd October, 2013 and she was finally
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discharged from 24.04.2014. Then thereafter, as is evident from

the record that on 25.07.2014, a petition was filed on behalf of

prosecution whereupon, both the parties, that means to say, both

sets of accused/appellant gave their consent to amalgamate

Sessions Trial No. 795/2013 as both the Sessions Trial originate

from the same PS Case Number and the same was allowed and

since, thereafter, the trial proceeded whereunder remaining

witnesses have been examined, statement under Section 313

CrPC has been recorded and then, after hearing both the parties,

the judgment impugned has been passed.

5. The case of defence as is evident from the

statement recorded under Section 313 CrPC, so far appellant,

Md. Iblawue @ Iblaque Ansari @ Idlaque Ansari is concerned,

he has claimed that the victim who happens to be a major had

accompanied with him to Kolkata out of her own free will,

solemnized Nikah at New Alipur, Kolkata, performed her

marital obligation but, on account of emotional pressure having

been exerted at the end of the prosecution party (parents), she

has deposed against him while the remaining appellants have

completely, denied their involvement during the aforesaid

occurrence.

6. Separation of trial, amalgamation of record is a
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procedural phenomenon without having proper presence under

code and it has to be carried out in accordance with feasibility.

So many factors are responsible for the same, that means to say,

non appearance of the accused during course of investigation,

non completion of the investigation against particular accused,

while submission of charge sheet against others abscondance of

accused. In likewise manner, when there happens to be presence

of accused and the trial is at the same stage, more particularly,

no witness has been examined on behalf of prosecution, then in

that circumstance, there could be amalgamation as it would not

cause prejudice to the respective parties. But as soon as, witness

is examined, it could not be. The basic principle for conduction

of criminal trial is, it should always be in presence of an accused

as provided under Section 273 CrPC. However, presence of

accused should not be physical and for that, two relevant

provisions are there which guides the issue, the first one Section

205 of the CrPC and second one is Section 317 CrPC, one

another Section i.e. Section 299 CrPC also gives such endurance

but with a condition, that the same should be exercised only

after declaration of an accused as an absconder. However, while

availing either of the two, the accused has to forego his precious

right, to challenge the identification and in so many case, it
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plays vital role but, the law speaks like so.

7. The Hon’ble Apex Court on that very score has

already propagated the principle the same in the case of SectionM/S

Bhaskar Industries Ltd v. M/S. Bhiwani Denim Apparels

Ltd as reported in (2001) 7 SCC 401 which is as follows:-

“17. Thus, in appropriate cases the
magistrate can allow an accused to make even
the first appearance through a counsel. The
magistrate is empowered to record the plea of the
accused even when his counsel makes such plea
on behalf of the accused in a case where the
personal appearance of the accused is dispensed
with. Section 317 of the Code has to be viewed
in the above perspective as it empowers the court
to dispense with the personal attendance of the
accused (provided he is represented by a counsel
in that case) even for proceeding with the further
steps in the case. However, one precaution which
the court should take in such a situation is that
the said benefit need be granted only to an
accused who gives an undertaking to the
satisfaction of the court that he would not dispute
his identity as the particular accused in the case,
and that a counsel on his behalf would be present
in court and that he has no objection in taking
evidence in his absence. This precaution is
necessary for the further progress of the
proceedings including examination of the
witnesses.”

8. SectionIn State of Maharashtra v. Dr. Praful B. Desai

reported in (2003) 4 SCC 601, it has been held as follows:-

12. Considering the question on the basisSection
of Criminal Procedure Code, we are of the view
that the High Court has failed to read Section
273 properly. One does not have to consider
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dictionary meanings when a plain reading of the
provision brings out what was intended. Section
273 reads as follows:

“Section 273: Evidence to be taken in
presence of accused. Except as otherwise
expressly provided, all evidence taken in the
course of the trial or other proceeding shall be
taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the
presence of his pleader.

Explanation : In this section, “accused”
includes a person in relation to whom any
proceeding under Chapter VIII has been
commenced under this Code.

Thus Section 273 provides for
dispensation from personal attendance. In such
cases evidence can be recorded in the presence of
the pleader. The presence of the pleader is thus
deemed to be presence of the Accused. Thus
Section 273 contemplates constructive presence.
This shows that actual physical presence is not a
must. This indicates that the term “presence”, as
used in this Section, is not used in the sense of
actual physical presence. A plain reading of
Section 273 does not support the restrictive
meaning sought to be placed by the Respondent
on the word “presence”. One must also take note
of the definition of the term ‘Evidence’ as defined
in the SectionIndian Evidence Act. Section 3 of the
Indian Evidence Act reads as follows:

“Evidence—-Evidence means and
includes —– – (1) all statements which the Court
permits or requires to be made before it by
witnesses, in relation to matters of fact under
inquiry;

such statements are called oral
evidence (2) all documents including electronic
records produced for the inspection of the Court;

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such documents are called documentary
evidence”

Thus evidence can be both oral and
documentary and electronic records can be
produced as evidence. This means that evidence,
even in criminal matters, can also be by way of
electronic records. This would include video-
conferencing.

09. SectionIn Ram Shankar v. State of Bihar as reported

in 1975 CrLJ 1402, it has been held as follows:-

“6. This non-compliance of the provisions
of Section 353 vitiated the entire trial. This view
is supported by a Bench decision of this Court in
Bigan Singh v. King Emperor reported in (1927)
ILR 6 Pat 691 : (1928) 29 Cri LJ 260.”

10. SectionIn Banchhanidhi Singh v. State of Orissa as

reported in 1990 Cr.L.J 397, it has been held as follows:-

5. Section 273 of the Code of Criminal
Procedure provides : —

“Evidence to be taken in presence of
accused. –Except as otherwise expressly
provided, all evidence taken in the course of the
trial or other proceeding shall be taken in the
presence of the accused, or, when his “personal
attendance is dispensed with, in the presence of
his pleader.

Explanation. –In this section, ‘accused’
including a person in relation to whom any
proceeding under Chapter VIII has been
commenced under this Code.”

Section 273 of the new Code
corresponds to Section 363 of the old Code.

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The above quoted provisions of Section
273 would show that the evidence of witnesses
has to be recorded in the presence of the accused
or when his personal attendance has been
dispensed with, in the presence of his pleader. On
16-7-1983, the date when PWs 1, 2 and 3 were
examined, the personal attendance of the accused
was dispensed with, but then when PWs 1, 2 and
3 were examined by the prosecution and their
chief examination was being recorded, even the
lawyer for the accused was not present in court.
As the personal attendance of the accused-
petitioner has been dispensed with, when the
lawyer for the accused also was not present in the
court at the time when the witnesses were to be
examined, the court should have adjourned the
case on that day to some other date, instead of
proceeding with the examination of the
prosecution witnesses and should have directed
the accused to be present on that adjourned date.
The examination of PWs 1, 2 and 3 in the
absence of the accused, and when the lawyer
representing him was also not present in the
court, is in gross violation of the mandatory
provisions of Section 273, SectionCr.P.C. and on that
score alone the entire trial is vitiated. The view I
have taken receives support from SectionRam Shankar
Ray v. State of Bihar, 1975 Cri LJ 1402 (Pat).
(See also Bigan Singh v. King-Emperor, AIR
1928 Patna 143 : 29 Cri LJ 260, Bishnath v.

Emperor, AIR 1935 Oudh 488 : 36 Cri LJ 1198
and SectionMrityunjoy Chatterjee v. The State, AIR 1955
Cal 439 : 1955 Cri LJ 1171.)

11. SectionIn State of M.P. v. Budhram as reported in

1996 Cr.L.J. 46, it has been held as follows:-

“5. It is a matter of grave concern that a
man facing trial on charge of having committed
seven murders and ultimately found guilty and
sentenced to death has to wait for the outcome of
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his fate longer than necessary but in the facts and
circumstances of the case it cannot be helped.
The infirmity pointed out above goes to the root
of the matter and the case must be remanded
back for retrial. It is equally a matter of concern
that in such important trials the accused persons
is not produced before the trial judge from jail on
some pretext or the other. This clearly amounts
to obstructing the course of justice and the
constitutional process. The time has come when
this Court is to take stock of the situation and try
to evolve remedial measures. With this aim in
view a copy of this judgment be placed before
the Hon’ble the Chief Justice for being discussed
in the next full court meeting.

12. After deducing the principle so laid down by

the Apex Court as well as High Court, it has become manifest

that presence of accused, though the manner has already been

prescribed like Section 205 CrPC or 317 SectionCrPC during course of

trial has become condition precedent. It happens to be

mandatory one. Any evidence recorded in absence of accused

will be nullity in the eye of law. The sole purpose is that accused

should know by whom and by which evidence, he is being

arrayed as an accused and further to testify his testimony, apart

from being confronted at the stage of Section 313 CrPC.

13. From the record of both the sessions trial as

referred herein above, it is crystal clear that examination of the

victim in both the sessions trial were independently recorded.

The accused in one sessions trial had no occasion to hear and
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cross-examine the victim relating to other sessions trial and vice

versa. So, after examination of the victim in both the sessions

trial separately, independently, would not have taken as a ground

to club both the sessions trial because of the fact that manner

whereunder, the witness had deposed, on bare perusal of the

same appears to be carrying slight variance to each other and so,

the evidence of the victim recorded in one sessions trial could

not be used against accused of another sessions trial and vice

versa.

14. The learned lower court, before clubbing both

the sessions trial vide order dated 25.07.2014, should have

considered the aforesaid exigency and that being so, the

amalgamation happens to be contrary to the spirit of law.

Consequent thereupon, the judgment impugned has been passed

on the basis of wrong procedure so followed by the learned

lower court and ultimately, leading to illegality which is being

found incurable. Hence, the same happens to be against the

spirit of law, whereupon, is set aside. Both the appeals are

allowed.

15. The matter is remitted back to the learned

lower court to proceed with both the trial independently right

from the stage after examination of PW-1. The learned lower
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court will also consider that in case, so prayed, at the end of the

prosecution, the scope of Section 216 CrPC would not find

barricaded by any finding having under order dated 25.01.2019,

which, in the facts and circumstances of the case, could not have

been dealt with in such manner.

16. All the appellants are under custody,

whereupon, are directed to be produced before the learned lower

court.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 15.07.2019
Transmission Date 15.07.2019