JUDGMENT
M.R. Sharma, J.
1. The appellant has been convicted under Sections 398 and 393, Indian Penal Code, and awarded rigorous imprisonment for seven years on the first count and 4 years’ rigorous imprisonment on the second count. The substantive sentences of imprisonment were, however, ordered to run concurrently.
2. Briefly stated, the prosecution story is that Chet Ram P.W. 2 is running a small grocer’s shop in village Pauli. On the night intervening 25th and 26th of January, 1974, at about 11 P.M. he was checking the accounts when one Fateh son of Ganeshi P.W. 3 was also present there. Prem appellant along with two co-accused appeared at the door of the shop. The two co-accused stayed out, the appellant entered the shop, wiped out a pistol and asked Chet Ram to surrender all the cash that was in his possession. Chet Ram was, the scene. In the scuffle both the appellant. In the meantime, the two co-accused of the appellant had run away from the scene. In the scuffle both the appellant and Chet Ram came out of the shop and the appellant was dispossessed of the pistol, which he was carrying at that time. He was kept in the village Chopal for the night and on the following morning Chet Ram and Fateh took him towards the police station. On the way they met Sub-Inspector Nathu Ram P.W. 9 and produced the appellant before him.
3. At the hearing of the appeal, the learned Counsel for the appellant apart from criticising the statements given by the prosecution witnesses has urged that the defence evidence of the appellant had been closed for no valid reasons. The learned Judge has observed that because of the reasons mentioned in a separate order, the defence of the appellant had been closed.
4. The relevant order dated August 14, 1974, passed by the learned trial Judge has been perused. It was argued before him that the father of the appellant had gone to village Pauli to bring witnesses and the Court may wait for some time so that they may arrive in Court. The learned trial Judge, however, observed as under:
It is already 11-45 A.M. The witnesses should be in attendance in time. In this Court at Jind there is a general tendency to treat every trial lightly. People are generally under the impression that it is not a trial Which is taking place before a Court of law, but some sort of Drama is being played and actors can make their appearance on the stage according to their own choice. This is a very unhappy impression and sooner it is removed from the minds of the people, the better it is. I regret that I cannot accept the request of Shri Panna Lal that I should wait for the arrival of the witnesses. Case shall be taken up after lunch for pronouncement of judgment.
5. The record shows that the learned trial Judge framed a charge against the appellant and his two co-accused on May 31, 1974. On that day, he passed orders that summonses be issued to prosecution witnesses and if an application is filed by the defence, the defence witnesses will also be summoned for the date fixed for the defence evidence. The procedure adopted by the learned trial Judge was not in accordance with the newly introduced statutory provisions. The Code of Criminal Procedure was amended and re-cast into Act No. 2 of 1974, which came into force on April 1, 1974, Section 230 of the Code lays down that if the accused refuses to plead, or does not plead, or claims to be tried, the Judge shall fix a date for the examination of the witnesses, arid may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing. Section 231 of the Code lays down that on the date fixed for the examination of the prosecution evidence, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. Section 232 of the Code enjoins on the Judge to examine the accused after recording the entire prosecution evidence. The Judge then hears the prosecution and the defence. In case, he comes to the conclusion that there is no evidence to show that the accused committed the offence, he has to record an order of acquittal. Then comes Section 233 of the Code which reads as under:
233. Entering upon defence.
(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
A reading of this section shows that if the trial Judge does not acquit the accused under Section 232 of the Code, he has to call on the accused to enter on his defence and to adduce any evidence he may have in support thereof. In other words, the law confers an important statutory right upon the accused person to take his chance of acquittal up to the stage of Section 232 of the Code. Till then, he is under no duty to disclose the names of his defence witnesses. If the Judge does not think it proper to acquit him under Section 232 of the Code, he has to call on the accused to enter on his defence and it is that stage at which the accused person is under duty to apply for (the issue of process for summoning the I defence witnesses.
6. The learned trial Judge after framing a charge against the appellant under Section 228, Criminal Procedure Code, passed a blanket order for the production of the prosecution and the defence evidence. The record does not show that he ever called on the appellant to enter on his defence, after the stage of Section 232 of the Code. In these circumstances, I am of the view that the learned trial Judge was not properly advised to close the defence of the appellant, especially when a request was made that the father of the appellant was coming with the witnesses.
7. In Willie (William) Slaney v. State of Madhya Pradesh it was observed that-
the Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice.
8. The right of an accused person to lead evidence in support of his defence cannot be compared in magnitude with any other right which he possesses under our system of laws. Any denial of this right to him vitiates the whole trial.
9. For the reasons mentioned above, I allow this appeal and remand this case to the learned trial Judge for a fresh trial in accordance with law.
