ORDER
A.K. Parichha, J.
1. Though this matter has been listed for admission, on the consent of the Learned Counsel for the parties, the same is taken up for final disposal.
2. The petitioner, who is accused in Sessions Case No. 33 of 2001 of the Court of Learned Adl. Sessions Judge, Malkangiri for the offence under Sections 306, 304-B, 498-A, IPC read with Section 4 of the D.P. Act failed to appear at the stage of accused statement for a considerable time for which the Learned Trial Court rejected the prayer for adjournment presented by the Learned Counsel for the accused and after hearing the argument on the same day, delivered the judgment, in which he convicted the accused-petitioner for the offence under Sections 306, 304-B, 498-A. IPC. Since the accused-petitioner was not available for hearing on the matter of sentence, Learned Trial Court issued N.B.W. along with process under Sections 82 and 83, Cr.P.C. against the petitioner and also noticed the bailor to produce the accused-petitioner. This order of the Learned Addl. Sessions Judge, Malkangiri is under challenge in this revision.
3. Mr. R.K. Mohapatra appearing on behalf of Sri S.K Dalai, Learned Counsel for the petitioner submits that the impugned order dated 7.8.2006 is contrary to the provisions of Section 313 and 233, Cr.P.C. inasmuch as for the absence of the accused at the stage of accused statement, the Court could have issued coercive measure for his production. According to him series of orders passed by the Learned Trial Court on 7.8.2006 not only offends the provisions of the Code of Criminal Procedure, but also the principle of natural justice.
4. Learned Addl. Government Advocate appearing for the state, on the other hand, argues that despite the direction of this Court passed in Misc. Case No. 7235 of 2001, the petitioner did not appear in the Court and so there was no alternative left to the Trial Court than to close the case hear the argument and deliver the judgment.
5. The impugned orders show that the petitioner repeatedly prayed for adjournment inspite of the direction from this Court to the accused petitioner to appear in the Court on each and every date and the recording of the accused statement was being postponed from time to time in absence of the accused-petitioner, for which Learned Trial Court dispensed with the recording of the statement of the accused and production of the defence evidence, and heard the argument. Section 313, Cr.P.C. says that in every enquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court may at any stage put the questions to the accused. In summons case, the Court may dispense with such examination of the accused but as has been said in the case of Usha K. Pillai v. Raj K. Srinivas and Ors. examination of the accused in a warrant case and Sessions case is mandatory. The purpose of recording the accused statement is to give an opportunity to the accused to explain the evidence and circumstance occurring in the prosecution evidence against him. Dispensing with the recording of the accused statement is thus likely to cause prejudice to the accused. Similarly, defence evidence is adduced to rebut the prosecution evidence and to substantiate the defence plea debarring the accused from placing his defence evidence is also likely to aversely affect the defence. This aspect was not taken into consideration by the Trial Court in the present case. No doubt the accused seems to be chronic defaulter in attendance and remained absent despite the direction of this Court. But in such a situation, the proper course for the Trial Court was to procure the attendance of the accused petitioner by issuing coercive measure or by directing the bailor to produce him in the Court. Not doing so and simply dispensing with the recording of the accused statement and defence evidence was illegal improper and it deprived the accused of a valuable right given to him under Sections 313 and 233 of Cr.P.C. One cannot ignore the fact that serious offences carrying heavy punishment are involved in the case and so, it was all the more necessary to give adequate opportunity to the defence to put forth their case.
For all the aforesaid reason, the impugned order dispensing with the recording of the accused statement, defence evidence and noteing the order of conviction against the petitioner in summary manner are quashed. The matter is remitted back to the Trial Court with a direction to re-start the case from the stage of accused statement. For this purpose, the accused-petitioner is directed to appear before the Trial Court on 11th October, 2006 and participate in the proceeding. Since N.B.W. and other coercive steps have already been issued against the petitioner, he is at liberty to move the Trial Court for his bail, if he is so advised in which event the Trial Court will consider the same on its own merit. It is made clear that if the petitioner-accused fails to appear on the date fixed and on successive dates to participate in the proceeding, the order passed in this revision would automatically stand vacated and the order of conviction assed on 7.8.2006 would revive. With the aforesaid observation and direction, the revision is disposed of. Urgent certified copy be granted on proper application.