Case Note & Summary
The appellants, Anil Hanmant Bhosale, Gangua @ Gangaram Narayan Bhosale, and Sunil Hanmant Bhosale, were convicted by the learned IInd Additional Sessions Judge in Sessions Case No. 208 of 1998 on 26-03-1999 for offences arising out of an incident on 30-05-1998, where the victim was assaulted and died. The prosecution alleged that the victim's wife (PW-3) went to the field and witnessed an altercation regarding distribution of stolen gold and property, followed by the accused assaulting the victim. The FIR was lodged the next day. The trial court examined five witnesses and convicted the appellants. The appellants filed Criminal Application No. 1815/00 in the High Court seeking re-hearing on the ground that they were not given adequate opportunity to present their case, but the application was disposed of with the observation that the proper remedy was an appeal. In the appeal, the appellants contended that the trial was conducted in their absence, violating Sections 273 and 317 of the Code of Criminal Procedure, 1973 (CrPC). The court examined the provisions: Section 273 requires evidence to be taken in the presence of the accused, and Section 317 allows the court to dispense with the accused's attendance only if satisfied and for reasons recorded. The court found that the trial was indeed conducted in the absence of the accused without any order under Section 317 CrPC, causing serious prejudice. The court set aside the conviction and ordered a retrial from the stage of framing charge, directing the trial court to proceed afresh in accordance with law and ensure the accused's presence or compliance with Section 317 CrPC.
Headnote
A) Criminal Procedure - Right of Accused to be Present During Trial - Section 273 CrPC - Mandatory Requirement - The trial was conducted in the absence of the accused persons without any order under Section 317 CrPC dispensing with their attendance. The court held that Section 273 CrPC mandates that evidence be taken in the presence of the accused, and the exception under Section 317 CrPC requires the Judge to record reasons for dispensing with attendance. Failure to do so vitiates the trial. (Paras 4-7) B) Criminal Procedure - Dispensing with Attendance of Accused - Section 317 CrPC - Recording of Reasons - The trial Judge did not record any reasons for proceeding in the absence of the accused. The court held that the provisions of Section 317 CrPC were not complied with, causing serious prejudice to the accused. (Paras 5-7) C) Criminal Appeal - Conviction Set Aside - Retrial Ordered - The court set aside the conviction and ordered retrial from the stage of framing charge, directing that the accused be produced before the trial court and given an opportunity to defend themselves. (Para 7)
Issue of Consideration
Whether the trial conducted in the absence of the accused persons without complying with Section 317 CrPC vitiates the conviction?
Final Decision
The appeal is allowed. The conviction recorded by the trial court is set aside. The case is remanded to the trial court for retrial from the stage of framing charge. The trial court is directed to proceed afresh in accordance with law, ensuring the presence of the accused or compliance with Section 317 CrPC.
Law Points
- Right of accused to be present during trial
- Mandatory requirement of recording reasons for dispensing with accused's attendance
- Prejudice caused by trial in absence of accused
