JUDGMENT
A.C. Kabbin, J.
1. The point of law involved in this appeal is,
Whether an accused can be convicted on the basis of evidence recorded in his absence when his appearance had not been dispensed with?
2. This appeal is preferred by the accused No. 3 (in custody) in S.C. No. 16/2006 challenging his conviction and sentence. He had been prosecuted for offences punishable under Sections 86 and 87 of the Karnataka Forest Act. The prosecution allegation was that the appellant and other two accused were found by the RFO, Koppa Range (P.W. 6), forest guards (P.Ws. 4 and 5) and forester (P.W. 3) in the early hours of morning of 05-04-2005 cutting sandalwood tree in Jaipura forest. The prosecution claims that on seeing the forest officers, they took to their heels, but were apprehended by the forest officers. A case was registered against all the three accused. During investigation, other two accused were released on bail. It is stated that later they jumped bail and therefore the trial proceeded only against this appellant.
3. The accused (appellant) pleaded not guilty and disputed his involvement. The prosecution examined six witnesses and on consideration of evidence and arguments, the learned Trial Judge convicted the appellant for offences punishable under Section 86 and 87 read with Section 34 of the Karnataka Forest Act and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 50,000/- for each offence. It is that judgment that has been challenged by the accused No.3 in the present appeal.
3. Sri. B.N. Poojary, learned Counsel for the appellant has raised a preliminary point regarding the validity of the proceedings. It is seen that on the date of the trial i.e., 24-01 -2007, the accused (the appellant) was not produced. However, the learned Trial Judge proceeded to record evidence. After evidence, the prosecution closed its case and the case was posted to 09.02.2007. On 09.02.2007 the accused was examined under Section 313 of the Code of Criminal Procedure and the case was posted for arguments. After hearing the arguments, the judgment was pronounced on 23.02.2007.
4. Since the accused had no legal assistance, the Court had appointed Sri. Aftab Ahmed, advocate as his counsel. It is the argument of the learned Counsel for the appellant that there was no allegation of misbehaviour or disturbance by the appellant and therefore there was no question of the accused being kept out of the Court while the evidence was being recorded. The learned Counsel for the appellant refers to Section 273 of the Code of Criminal Procedure which requires that 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, of, when his personal attendance is dispensed with, in the presence of his advocate. He argues that the Court having not dispensed with the attendance of the accused and the advocate for the accused having not consented for recording the evidence in the absence of the accused, the evidence so recorded cannot be looked into. He invites the attention of the Court to the fact that none of the witnesses examined in the Court had identified the accused since he was not before the Court at the time of evidence and that therefore in the absence of identification of the accused by the prosecution witnesses, the accused could not have been convicted for any of the offences.
5. I have heard the learned High Court Government Pleader in this regard. He refers to the order of the Trial Court dated 24.01.2007 which reads as under:
Learned in-charge P.P. and standing counsel for the accused are present.
Superintendent of District Prison has forwarded a letter stating that on account of Bundobusth duty on the eve of visit of Hon’ble Chief Minister, they are unable to produce the accused before the court today.
Accused not produced before the court for want of escort.
C.Ws. 5, 2, 1, 3, 4 and 6 are examined as PWs. 1 to 6. Ex. P1 to Ex. P3 and M.Os. 1 and 2 marked.
Learned PP submits that he closes his side.
Call on for 313 statement of the accused by 9.2.07.
The accused is directed to be produced on the said day.
It is the argument of the learned High Court Government Pleader that the above order dispensed with the attendance of the accused and therefore the evidence recorded in the absence of the accused in the present case was not vitiated.
6. Section 273 of the Code of Criminal Procedure makes it imperative that the trial shall be taken in the presence of the accused. Exceptions of this rule are:
(i) Where the Court is of the opinion considering the nature of evidence proposed to be recorded that the personal presence of the accused, while the prosecution evidence is being recorded, is not necessary
(ii) Where for recording the evidence, personal attendance of the accused has been dispensed with.
7. In both the events, evidence has to be recorded in the presence of the advocate for the accused. Where the participation of the accused in the alleged crime is disputed and the witnesses have no acquaintance with the accused earlier, identification of the accused may be an important fact to be proved to enable the court to decide as to whether the alleged offence has been committed by the accused prosecuted before it. Section 317 of the Code of Criminal Procedure provides for the trial being held in the absence of the accused in certain cases. If the Judge or the Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in court, the Judge or Magistrate may, if the accused is represented by an advocate, dispense with his attendance and proceed with the enquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. However, where personal attendance of the accused while recording the evidence of prosecution is to be dispensed with at the request of the accused, as indicated by the Supreme Court in Bhaskar Industries Ltd. v. Bhivani Denim and Apparels Ltd. and Ors. the benefit of exemption need be granted to such 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 his counsel would be present in court and that he has no objection in taking evidence in his absence.
8. In the present case, the accused had specifically disputed his participation in the alleged act of cutting the sandalwood tree. His personal attendance had not been dispensed with. The order dated 24.01.2007 is not an order of dispensation of the presence of the accused under Section 317(1) of the Code of Criminal Procedure, but only the record of the factum of non production of the accused on account of non availability of escort. The advocate for the accused had not consented for recording the evidence in the absence of the accused. It was not the case of the prosecution that the appellant persistently disturbed the proceedings in the court so as to dispute with his attendance at the time of recording evidence. Therefore the procedure followed by the learned Trial Judge being in contravention of the provisions of Section 273 of the Code of Criminal Procedure, the evidence recorded cannot be the basis for conviction of the accused/appellant of the offences for which he had been charged. In that view of the matter, the conviction has to be set aside directing retail of the accused from the stage the evidence was recorded in his absence.
9. In the result and for the reasons stated above, the appeal is allowed under Section 386(b)(i) of the Code of Criminal Procedure and reversing the conviction and sentence in judgment dated 23.02.2007 of the Trial Court passed in S.C. No. 16/2006, it is directed that the accused be re-tried from the stage of evidence. The evidence recorded in the absence of the accused is hereby expunged.
The Trial Court shall register the case at its original number and after securing the accused, conduct the trial as expeditiously as possible in the light of the observations made above.