ORDER
1. Since common questions arise in Crl.M.P. Nos. 4613 and 4614 of 1997, both were heard together and are being disposed of by a common judgment.
2. In these two petitions an issue of public importance that missed the eye of the legal profession came to light i.e., whether the accused/appellant has to attend the Court on everyday of posting in an appeal filed by him against the conviction and sentence given by the Court below.
3. The petitioner A-11, A-13 and A-14 were tried and convicted under Sections 3(k)(i)(VIII) read with S. 29(i)(a) of Insecticide Act (for short ‘the Act’) in C.C. No. 199 of 1988 and C.C. No. 200 of 1988 respectively by the Addl. Judicial First Class Magistrate, Bhimavaram and sentenced them to undergo R.I. for one year and to pay a fine of Rs. 1000/- each in both petitions respectively. Aggrieved by the said orders of conviction and sentence, they preferred Crl. Appeal No. 57/97 and 58/97 respectively on the file of the I Addl. Sessions Judge, West Godavari at Eluru. On 1-9-1997 an application was filed on behalf of these accused seeking dispensing with personal attendance on the dates of hearing of the appeal except on the date of judgment or at any time the Hon’ble Court directs. The said application was dismissed by the appellate Court vide its order dated 10th September, 1997 by holding that during the hearing of the appeal before the Sessions Court, such a facility is not available to the convict/appellant. Hence, the question of dispensing with their personal attendance is not permissible in law. Questioning the said orders the present application is filed under section 482, Cr.P.C.
4. Sri Padmanabha Reddy counsel appearing for the accused contended that though as a practice the Courts are insisting for the personal appearance of the accused at the appellate stage, no such provision is made in the Cr.P.C. or in the Criminal Rules of Practice. In fact, Section 374, Cr.P.C. under Chapter XXIX deals with appeals from convictions. While sub-section (2) deals with the appeals to be filed in the High Court, sub-section (3) deals with the appeals to be filed before the Sessions Court. While the attendance of the accused is not insisted in the High Court, there is no rationale behind the practice followed by the Sessions Courts in insisting for the appearance of the accused on everyday of posting of the Appeal whether the appeal is taken up for hearing or not on that day.
5. To appreciate the contentions raised by the Counsel for the petitioners, a look at some of the provisions of the Cr.P.C. is needed.
6. Chapter XVI deals with the commencement of the proceedings before the Magistrate. Under Section 204, Cr.P.C. the Magistrate after taking cognizance of the offence issues summons or warrants, depending upon the case, i.e., either a summons case or a warrant case. Under Section 205 (1), Cr.P.C., the Magistrate having issued summons for the personal attendance of the accused is empowered to dispense with the personal attendance of the accused and permit him to appear by his pleader/advocate. Under sub-section (2) even if the Magistrate dispenses with the personal attendance of the accused in his discretion at any stage of the proceedings, he is empowered to direct personal attendance of the accused in the manner provided in the Section. Chapter XXIV, Cr.P.C. deals with general provisions as to enquiries and trials. Under Section 317, at any stage of the enquiry or trial, the concerned Judge or Magistrate trying the case is empowered to dispense with the personal attendance of the accused before the Court in the interest of Justice or in the event the accused persistently disturbing the proceedings of the Court. In the event the accused is represented by an advocate. At the same time at any stage of the proceedings he could direct the personal attendance of the accused. Under sub-section (2), even if the accused is not represented by an advocate, if the presiding officer feels that the personal attendance of the accused is necessary, he may adjourn the enquiry or trial. Chapter XXVII deals with the pronouncement of the judgment. After laying down the procedure about the pronouncement of the judgment. Sub-section (5) of Section 353 states that if the accused is in the custody, he shall be brought to the Court to hear the judgment pronounced. Under sub-section (6), if the accused is not in custody, he shall be required by the Court to attend to here 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.
7. From the above provisions it can be safely presumed that the presence of the accused is insisted during the trial for more than one reason though the provisions are made for dispensing with their personal attendance for the reasons enumerated under section 205 or 317, Cr.P.C. The reasons for insisting for their personal attendance are that during the trial, the presiding officer is expected to record the evidence in the presence of the accused in the language known to him and the accused has to follow the evidence that is being let in by the prosecution against his interests and give suitable instructions to his counsel to disprove the case of the prosecution as he will be the appropriate person who knows the truth or otherwise of the allegations made against him. Likewise the presence of the accused is insisted at the time of pronouncement of the judgment and in the event of his being convicted he has to be heard on the sentence to be imposed. Hence, there is every justification in insisting for the appearance of the accused during the trial.
8. Coming to the appearance in Appeals Chapter XXXIX deals with the appeals and we are concerned with Section 374, which deals with the appeals arising out of convictions. As stated supra, the appeals that have to be filed before the High Court were dealt with in sub-section (2) and the appeals to be filed before the Sessions Court were dealt with in sub-section (3) of the Act. Section 381 deals with appeals before the Sessions Court and the same does not throw any light about the presence of the accused on the dates of adjournment. Section 385, the most important Section is the procedure to be followed for hearing the appeals not dismissed summarily, which is extracted hereunder :
“Procedure for hearing appeals not dismissed summarily :
(1) If the appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given;
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under S. 377, or S. 378 to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.”
9. From this it is evident that the notice of the hearing of the appeal can be served on the appellant or on his pleader/advocate if he is represented by an advocate. In other words, the appellate Court need not insist for service of the notice of the hearing of the appeals on the appellant alone. Under the Act it is suffice if the notice of hearing is served on the advocate representing the appellant. Section 386 deals with the hearing of the appeals and it is useful to extract the same :
“Power of the Appellate Court : After perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor if he appears, and in case of an appeal under S. 377 or S. 378, the accused if he appears the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal.”
10. From this also it is seen that the appellate Court after perusing the record is empowered to dispose of the appeal by hearing either the appellant or his advocate and pass orders as enumerated in that section. As per Section 387, the Court of Section or the Chief Judicial Magistrate has to follow the procedure indicated in Chapter XXVII, applicable to the judgment of the Criminal Court of original jurisdiction. Proviso to Section 387 is as hereunder :
“Provided that, unless the appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to here judgment delivered.”
11. From this it is amply established that the presence of the accused need not be insisted even at the time of pronouncement of the judgment leave apart the dates on which the appeals are posted form time to time. Any procedure evolved by the Courts should be for the convenience of the litigant and the same should not result in undue harassment and mental agony when he is forced to approach the Court seeking justice merely because he is shown as an accused.
12. The issue can be looked at from another angle also. In the High Court also while disposing of the appeals under section 374(2) the presence of the accused is not insisted. This is because, when once the forum provided under the Act to find out the correctness of the judgment of the original Court is over, the implementation part of the judgment has to be carried on by the original Court and the appellate Court has no role in sending the accused to jail. In other words the original Court which tried the case has to issue warrant of arrest to jail with a direction to detain him in the prison till he serves the sentence.
13. For all the above, I am of the confirmed opinion that the practice that is being followed in insisting the presence of the accused/appellant during the pendency of the appeal has neither sanctity of law nor is a reasonable procedure. Accordingly, the order of the I Addl. District & Sessions Judge, Eluru in Crl.M.P. Nos. 4613 and 4614/97 in Crl.A. Nos. 57/97 and 58/97, dated 10-9-1997 pending on his file are quashed and he is directed to dispense with the presence of the appellant/accused in the above appeals unless otherwise the Court is of opinion that their presence is needed at any stage of the appeal for their effective disposal.
14. Petition allowed.