Oral Judgment On Preliimiinary Issues.
B.P. Dharmadhiikarii, J.
1. These two appeals under Section 374 of the Criminal Procedure Code arise out of common judgment dated 30.03.2016, delivered in Sessions Trial Nos. 144/2012 and 233/2014. Accused persons are found guilty of committing various offences like under Section 143, 144, 147, 148 and Section 324 read with Section 149, Section 302 read with Section 149 of Indian Penal Code. The maximum imprisonment imposed is for offence punishable under Section 302 read with Section 149 of Indian Penal Code, and they are sentenced to imprisonment for life and fine of Rs. 10,000/- each. Looking to the challenge as posed, it is not necessary to mention other punishments which are imposed upon them by the impugned judgment.
2. Basically arguments have been advanced in Criminal Appeal No. 139/2016, where the original accused no.5 Mohd Hanif and accused no.6 Mohd. Azam are the appellants. These arguments are urged to be sufficient to vitiate the common judgment and therefore, valid for even allowing appeal No. 189/2016 filed by the original accused nos. 1 to 4. According to learned senior advocate in view of fundamental error in trial, the remand and a fresh judgment in both the trials is necessary. After hearing, it became clear that prayer for remand could have been granted if the contentions were accepted. But, in case of its rejection, these appeals could not have been dismissed and hearing on merits would have been necessitated. Hence, we have treated the challenge as a preliminary challenge.
3. In Crime as alleged, prosecution claims participation of 12 accused persons. One of them is juvenile, 6 are before this Court and 5 are still reported to be absconding. Relationship between the parties is not in dispute. Appellant Mohd. Munaf and Mohd. Ansar in Criminal Appeal No. 189/2016 are brothers of appellants in Criminal Appeal No. 139/2016. Appellant no.4 Mohd. Amir in Criminal Appeal No.189/2016 is son of appellant no.2 Mohd. Azam in Criminal Appeal No. 139/2016. Appellant no.3 Mohd. Irfan in Criminal Appeal No. 189/2016 is also claimed to be relative of all these appellants.
4. Senior Advocate Shri A.V. Gupta along with Shri R.K. Tiwari, learned counsel for appellants have urged that there is violation of Section 299 of Criminal Procedure Code while dealing with Sessions Trial No. 233/2014. The corresponding provisions contained in Section 33 of Evidence Act, is also pressed into service to explain the impact with submission that as on this ground the judgment of conviction stands vitiated in one trial, it stands vitiated entirely i.e. in other Sessions Trial No.144/2012, This earlier trial has been clubbed and tried together along with later Sessions Trial No.233/2014. Other contention pressed into service is breach of Section 304 Criminal Procedure Code, in as much as two appellants in Appeal No. 139/2016, have not been given legal aid and tried in Sessions trial 233 of 2014.
5. Shri M.J. Khan, learned A.P.P. appearing on behalf of the State Government and Shri R.J. Mirza, learned Counsel permitted to assist prosecution on behalf of the complainant, have refuted these contentions. They have invited attention to relevant developments to urge that the appellants cannot be permitted to take advantage of their own wrong and conduct. They also have not approached this Court with unclean hands and have attempted to drag the litigation so as to harass the witnesses. Previous history in the matter is also pressed into service to urge that when challenges came before this Court, two appellants in Criminal Appeal No. 139/2016 choose to engage Advocate and when matter started before the Sessions Court, though opportunity was given, they did not engage Advocate, did not avail legal aid, though offered, and also did not cross examine prosecution witness. Services of very same advocate who represented other appellants before trial court were availed only in High Court only. According to them prosecution witness had complained of threats received by them and this court after considering the nature of controversy, was pleased to expedite the trial. They also invited attention to the fact that false complaints were filed against witness in the matter by appellants to pressurize them.
6. Shri Khan, learned A.P.P. has attempted to invite attention to motive in the crime by urging that the appellants indulged in illegal money lending and deceased victim is cousin of P.W.5 borrower. Appellants have attempted to win over the prosecution witnesses and are interested in delaying the judgment. Several of them are deliberately absconding even today.
7. Both sides have relied upon various precedents to which we find it necessary to refer at appropriate juncture in the course of this judgment.
8. The date on which the offence is alleged to have taken place is 12.07.2012. Accused no.1 was arrested on the very same day. Accused nos. 2 to 4 have been arrested on 16.07.2012. Chargesheet against these four accused persons was presented by the State on 08.10.2012, and matter was committed to Sessions Court on 12.10.2012. This led to registration of Sessions Trial No.144/2012, wherein charges were framed on 21.04.2014 and recording of evidence began on 30.07.2014.
9. Appellants Hanif and Azam in Criminal Appeal No.139/2016 were absconding and they surrendered on 10.09.2016. Chargesheet against them was presented on 17.11.2014, and their trial was committed on 24.11.2014. They have been produced in their Sessions Trial No.233/2014 for the first time on 29.11.2014. The orders consolidating Sessions Trial No. 233/2014 with Sessions Trial No. 144/2012, have been passed on 02.12.2014, and the Trial Court framed charges against them on very same day. Their plea was also recorded on that date only.
10. It is in this background that the rival contentions raised by the parties need to be looked into. The bone of contention is without giving necessary legal assistance as mandated by Section 304 of Criminal Procedure Code, evidence of six prosecution witness recorded behind the back of appellants Hanif and Azam in Sessions Trial No. 144 of 2012 has been used to convict them.
11. Perusal of records reveal that P.W.1 Mohd. Rizwan came to be examined in chief in Sessions Trial No. 144/2012 for the first time on 30.07.2014 and Senior Counsel Shri A.V. Gupta, cross-examined him on behalf of accused nos. 1 and 2 on 15.09.2015. Thereafter, he was cross-examined by Shri R.K. Tiwari, Advocate on that day only. It appears that after commission and recording of plea of Hanif and Azam in Sessions Trial No. 233/2014, he was recalled on 11.12.2015. Learned A.P.P. before the Trial Court reexamined him. He has spoken only one sentence i.e. he identified two persons who were accused in Sessions Trial No.233/2014. Thereafter, the Trial Court had recorded that deposition of witness was read over to Mohd. Hanif in Hindi and he declined to cross examine said witness. It is separately recorded that deposition of this witness was also read over to Mohd. Azam in Hindi and he also declined to cross examine the witness. After this note on 11.12.2015, said witness appears to have been discharged.
12. P.W.2-Alim Khan is the next witness whose evidence was recorded on 15.09.2015. He was cross-examined by Shri A.V. Gupta, Advocate on very same day while Shri Tiwari, Advocate declined to cross-examine him on behalf of accused nos. 3 and 4. It appears that his further cross examination was resumed on 07.12.2015 and with two separate notes that contents of his deposition were read out to Mohd. Hanif and Mohd. Azam in Hindi and thereafter they declined to cross examine the witness. He was discharged on 07.12.2015.
13. P.W.3 Mohd. Ejaz is the third witness and recording of his evidence commenced on 16.09.2014. On that day, after completing his part cross-examination, further recording was resumed on 09.10.2014. Shri Gupta, Advocate completed his cross-examination and thereafter Shri Tiwari, Advocate cross examined the said witness on behalf of accused nos. 3 and 4. It appears that Advocate Shri Gupta, was permitted to further cross examine this witness by recalling him and because of this recall, opportunity was also given to accused nos. 3 and 4. Advocate Shri Tiwari, on their behalf declined to further cross examine. This further cross-examination is on 24.08.2015. Thereafter opportunity was given to accused nos. 5 and 6 in person to cross examine P.W.3, but, they also declined. It is A.P.P. who reexamined this witness and this witness identified them I.e., Mohd. Hanif and Mohd. Azam. After this reexamination again on 24.08.2015 itself, accused nos. 5 and 6 were given opportunity to cross-examine him, but, it was declined by them individually.
14. It is important to note here that the trial Court has mentioned Mohd. Hanif as accused no.6, however, in original charge sheet, as presented, Mohd. Hanif was accused no.9. It appears that trial court was dealing with accused 1 to 4 in earlier trial and hence, these accused whose trial was consolidated with ST 114/2012 were referred to as accused nos. 5 and 6.
15. Sk. Shabir is P.W.4. His examination-in-chief as also cross-examination on behalf of accused nos. 1 and 2 by Advocate Shri Gupta and on behalf of accused nos. 3 and 4 by Advocate Shri Tiwari is recorded on 09.10.2014. His cross-examination by Mohd. Hanif was resumed on 07.12.2015. Trial Court has recorded that contents of deposition of this witness were read over to accused in Hindi and he declined to cross examine. On same date, similar endorsement appears when recording denial of accused no.5 Mohd. Azam to cross-examine this witness. Deposition of P.W.5 Mohd. Wasim is recorded on 10.10.2014, when he was also subjected to cross examination by Advocates Shri Gupta and Shri Tiwari respectively. He was reexamined on 07.12.2015 by learned A.P.P. He identified Mohd. Hanif and Mohd. Azam, both. Opportunity to cross examine this witness was separately given to Mohd. Hanif and Mohd. Azam in person. Trial Court has recorded that contents of deposition of this witness were read over to these persons in Hindi and they declined thereafter to cross examine him.
16. Deposition of last witness with whom we are concerned is of one Sk. Shakil (as P.W.6) which came to be recorded on 17.11.2014. Accused Nos. 1 to 4 present in court, in person on that date declined to cross-examine this witness. It appears that later on because of orders passed by the trial Court Advocates Shri Gupta as also Shri Tiwari, cross examined him and then he was reexamined by learned A.P.P. He identified Mohd. Azam and Mohd. Hanif. Opportunity to cross examine this witness was offered again separately to accused nos. 1 and 2 and accused nos. 3 and 4, but, they have declined to cross examine on 29.01.2015.
17. On 11.12.2015, this witness was made available for cross-examination by accused Mohd. hanif and Mohd. Azam. Both of them have declined separately.
18. It is in this background that the above mentioned challenge need to be appreciated. From the events stated supra, it is apparent that Mohd, Hanif and Mohd. Azam were produced in Sessions Trial No. 233/2014 for the first time on 02.12.2014 when Sessions Trial no.144/2012 was already in process. Events which have transpired after 02.12.2014 in so far as these six witnesses are concerned, are apparent from above narration. Section 299 of Criminal Procedure Code on which learned Senior Counsel Shri A.V. Gupta, has placed strong reliance on behalf of accused persons shows that when it is proved by the prosecution that accused persons have absconded and there is no immediate prospect of arresting them, the Court empowered to try the matter or to commit the matter for trial, is competent to examine the witnesses produced by the prosecution in his absence, record their deposition and any such deposition, after arrest of such absconding person can be given in evidence against such absconding accused, if deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expenses or inconvenience, which under the circumstances of the case, the court may find unreasonable.
19. Section 33 of the Evidence Act is on same lines. It prescribes that evidence given by the witness in any judicial proceedings is relevant for the purpose of proving in subsequent judicial proceeding or in a later stage of the same judicial proceeding truth of facts which he deposed about when the witness is dead or cannot be produced etc. The later contingencies in which such earlier deposition becomes admissible are same as prescribed in Section 299 of Criminal Procedure Code. However, Section 33 carries a proviso which requires that such later proceedings should be between same parties or their representative in interest and the adverse party in the first proceeding had right and opportunity to cross-examine, and the questions in issue were substantially the same in the first, as also in later proceeding. By explanation, it has been clarified that a criminal trial is deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
20. Here as already noted supra, when accused no.5 Mohd. Azam and accused no.6 Mohd. Hanif surrendered themselves on 10.09.2014, earlier Sessions Trial No.144/2012 was already pending before the competent Court. Perusal of records reveal that chargesheet no. 72/2012 dated 08.10.2012 was presented on 12.07.2012 to the Chief Judicial Magistrate, Akola in Regular Criminal Case No. 638/2012. In this chargesheet along with other absconding accused persons, Mohd. Azam and Mohd. Hanif are also shown as absconding by writing those words in vernacular in red ink. After this chargesheet was presented, that court has on 12.10.2012 issued standing warrant against absconding accused mentioning that against them chargesheet is filed under Section 299 of Criminal Procedure Code vide Chapter VI Paragraph no.2 of the Criminal Manual.
21. Paragraph 2 in Chapter VI of Criminal Manual in its first part records the confusion then prevailing in such matters. It is mentioned that when some accused are shown absconding in the chargesheet filed by the police, available accused persons are shown in Column no.1 and absconding accused are shown in red ink in column no.2. Some Court carried an impression that the cases of the absconding accused are also before the Court, while some thought that the Courts are not concerned with the case of the absconding accused and police will file a separate charge sheet for them. Thus, absence of uniformity in the trial of the absconding accused was noticed.
22. In sub-paragraph  effort has been made to achieve uniformity in the trial of such absconding accused. It is directed that Courts need not pass orders in respect of accused shown as absconding in red ink in column no.2 of the chargesheet, since they are not before the Court. If they are traced during the pendency of the trial of the accused before the Sessions court, the former should not be tried with the later, if the prosecution evidence has already commenced. In such cases and in cases where the absconding accused are apprehended, after disposal of the pending trial, separate proceeding should be entered on a supplementary chargesheet submitted by the police as per Rule 218(3) of Bombay police Manual, 1959, (Volume III). Thus sub-para of paragraph no.2 bars subjecting the accused traced out or surrendering later to an ongoing trial ie to the trial of apprehended co-accused which has already commenced. It envisages separate proceedings to be entered on a supplementary chargesheet. Apparently object is to see that issue of liberty of apprehended accused persons is expeditiously adjudicated upon and they are not required to wait indefinitely. It does not prohibit the accused persons from seeking the clubbing of the two trials.
23. In present matter, we have already indicated dates on which Hanif and Azam were presented, Sessions Trial no.144/2012 was already going on against 4 appellants in Appeal No.189/2016. Two appellants i.e. Mohd. Hanif and Mohd. Azam in Appeal No.139/2016 surrendered on 10.09.2014 and this led to registration of separate Session Case No.233/2014 and a supplementary chargesheet. Plea of these accused persons in respect of supplementary chargesheet was recorded on 2.12.2014. Events thereafter have been mentioned by us supra.
24. Accused no.5 Mohd. Azam and accused nos. 6/9 Mohd Hanif filed a Pursis (Exh.89) in Sessions Trial No. 144/2012 on 10.09.2014. Pursis is, therefore, filed by them on the date they surrendered and in pending Sessions trial of the co-accused. It is signed by both of them, as also their counsel. Pursis states that accused nos. 5 and 6 were surrendering before that Court. After pointing out that in chargesheet presented by police, accused nos. 5 to 12 have been shown as absconding, they state that Chargesheet has been filed against them as per Section 299 of Criminal Procedure Code. Thereafter in paragraph no.4 of the pursis, they have claimed false implication and pointed out that they were elsewhere at the time of commission of alleged offence. In last paragraph i.e. paragraph no.5 they have stated that having learnt of false chargesheet, they have surrendered voluntarily and requested the court that they be tried jointly with accused nos. 1 to 4. In view of this pursis, the Sessions Court has on 2.12.2014 passed order below Exh.1 in Sessions Trial No. 144/2012 and consolidated both the session trials i.e. Session Trial No. 144/2012 and Session Trial No.233/2014. It is in this background that the arguments in relation to Section 299 of Criminal Procedure Code needs to be looked into.
25. Though counsel opposing the contention, have invited our attention to conduct of accused nos. 5 and 6, for present purposes we find it sufficient to note the observations of learned Single Judge of this Court in order dated 31.01.2014 while disposing of Criminal Application No. 69/2013. All the 12 accused persons were already applicants in that criminal application. Request was to transfer the Sessions Trial no.144/.2012 from Sessions Court Akola to any other Sessions Court in State of Maharashtra except the districts adjacent to Akola. During hearing in the wake of earlier order dated 17.12.2013, the learned Single Judge gave option to absconding accused persons to surrender pointing out that otherwise their application may be dismissed. Learned counsel representing all the accused persons sought time to obtain instructions and on 31.01.2014, after instructions, submitted before the Court that the absconding applicants would surrender if their application for transfer i.e. Criminal Application No.69/2013 be allowed. Learned Single Judge found the conduct of the absconding accused persons objectionable and remarked that they were putting a condition to the Court, as if they were bargaining with it. It therefore deprecated this conduct. The events during 8 months thereafter leading to surrender on 10.09.2014 are not relevant at this stage. However, even as on today, 5 adult and one juvenile accused are still absconding.
26. Facts therefore demonstrate that there was no immediate prospect of arresting these absconding accused persons. This position was evident on 12.10.2012 when the trial Court proceeded under Section 299 of Criminal Procedure Code read with Chapter VI Paragraph no.2 of the Criminal Manual. Thus, when the matter came up before the Sessions Court for trial, in ST 144 of 2012 , accused nos. 5 and 6 i.e. Mohd. Azam and Mohd. Hanif were not before it. Sessions Trial No.144/2012 was restricted only to 4 accused persons out of total 12 and the learned Sessions Court has proceeded accordingly in the matter.
27. The appellants have not questioned order committing accused nos. 1 to 4 to Session Court in Sessions Trial No.144/2012 or then later order of committal dated 21.11.2014 leading to separate Sessions Trial No. 233/2014.
28. Section 299 of Criminal Procedure Code is in two parts. It permits the Sessions Court to proceed to record evidence of witnesses tendered by the prosecution and complete the trial against the accused produced before it. Its second part is an enabling provision which permits use of that evidence, already recorded, in certain contingencies. Such contingency also finds mention in Section 33 of Evidence Act. Those contingencies are not available in present matter. Had any of those contingencies been available it would not have been necessary for the trial Court to recall any of the P.W.1 to P.W.6 to give an opportunity of their cross-examination to appellant nos. 5 and 6. Second part in section 299 does not require recording of either examination-in-chief or cross-examination again, if contingencies stipulated therein are available. Arrangement made in Section 33 of the Evidence Act is on same lines.
29. Section 273 of Criminal Procedure Code does not prohibit use of same examination-in-chief in case of accused nos. 5 and 6 in present matter. Accused nos. 5 and 6 have surrendered in Sessions Trial No. 144/2012 only and they expressly made a request to try them along with accused nos. 1 to 4 in that Session Trial by filing a pursis [Exh.89]. Accordingly, after completing necessary formalities like drawing of supplementary chargesheet, Trial Court has consolidated both the trials. Such consolidation on request of accused only is not prohibited by Chapter VI paragraph no.2 of the Criminal Manual. In absence of such a pursis and order of consolidation, the ongoing trial Court could have progressed as stipulated in said sub-para of Criminal Manual and completed. Thereafter, the trial in Sessions case no.233/2014 could have been taken up separately or independently. Their puris at Exh.89 is tendered by accused nos. 5 and 6 on record of Sessions Trial No.144/2012 on 10.09.2014, when that Sessions Trial was fixed on 15.09.2014. This pursis is signed by them, as also by their Advocate. In view of this fact, it is apparent that the contention that provisions of Section 299 of Criminal Procedure Code have been violated in present matter is erroneous and misconceived. Learned trial Court has not taken and was not required to take recourse to later part of section 299 of Criminal Procedure Code or Section 33 of the Evidence Act, at all.
30. In view of this finding, we do not find it necessary to delve into judgment of Hon'ble Supreme Court reported at (2009) 7 SCC 104 (1) (Jayendra Vishnu Thakur .vrs. State of Maharashtra and Anr.), where the Hon'ble Supreme Court has pointed out the ingredients which must be evaluated before taking recourse to Section 299. Facts in paragraph no.9 of the said judgment reveal that appellant before the Hon'ble Supreme Court was formally arrested in the said matter on 04.08.1997. Supplementary chargesheet was filed on 09.08.1987. Charges were framed against 6 accused persons, including the appellant on 15.11.2003. In those proceedings, prosecution filed two applications i.e. application on 25.09.1996 and on 11.10.2006 for exhibiting deposition of P.W.36 and 9 other witnesses who had since expired. These applications were allowed and the challenge to the said order was taken by before the Hon'ble Supreme Court. The Hon'ble Supreme Court has found that the material on record was insufficient to conclude that the appellant was absconding and apart from the fact that a proclamation under Section 82 of Criminal Procedure Code was issued, no other material was placed before it. Thus the basic fact giving rise to the occasion to take recourse to Section 229 was found lacking. It is not necessary for us to consider this judgment in more details here as the fact of abscondence of accused Mohd. Hanif and Mohd. Azam was never in dispute. They sought joint trial and never raised any objection to the procedure followed by the Sessions Court in explaining to them the evidence of witnesses already examined and recalled, and asking them to cross examine them. They continued to participate till end without any protest.
31. The other challenge is to not providing legal aid to appellant nos. 5 and 6 under section 304 of Criminal Procedure Code. Section 304 of Criminal Procedure Code in sub-section  mandates that when accused is not represented by a pleader and where it appears to the Sessions Court that accused has no sufficient means to engage a pleader, it shall assign a pleader for his defence at the expenses of State Government. The relevant provision in criminal manual are contained in Appendix B. Rule 4 of Appendix B stipulates that no unrepresented person shall be compelled to avail a free legal assistance against his wish.
32. At this stage, we find it convenient to briefly refer to the previous history which is apparent from orders of this Court. Order dated 31.01.2014 passed in Criminal Application No. 69/2013 by the learned Single Judge of this Court has very well brought on record there attempt to persuade the court to pass an order of transfer by offering to surrender in consideration thereof. The said order also shows that the absconding accused persons and other accused persons have filed counter complaints against witness and learned Single Judge after perusal of the contents of one such complaint, found that even police officers namely Superintendent of Police, Akola and Inspector of Police attached to Ramdaspeth Police Station were joined as accused persons. Little later, learned Single Judge has taken note of the contention that witnesses were receiving threats from accused persons, but, disregarded it after observing that the allegations were not substantiated. The fact that the accused declined to sign on the form of plea recording and due to their denial, the court was facing difficulty in proceeding with the trial, is also taken note of in this order. The concern expressed and non-co-operation of accused has also been mentioned. Ultimately, request for transfer of sessions trial 144/2012 came to be rejected.
33. In Writ Petition No. 149/2014 one Mohd. Ajaz @ Ajju Mohammad Ayub (P.W.3 in trial) who is brother of victim sought expeditious disposal of Sessions Trial No. 144/2012. Division Bench of this Court on 08.04.2014 granted that prayer. It has taken note of contention of learned A.P.P. that the trial was posted for framing of charge since 03.01.2013, and accused on one pretext or other were obstructing the said framing. Sessions Trial was directed to be disposed of within 6 months. This period of 6 months was to expire on 08.10.2014.
34. On 08.10.2014 the Division Bench of this Court turned down another Criminal Writ Petition No. 807/2014 filed by 4 accused persons in Sessions Trial No.144/2012 demanding transfer of that Session Trial out of Akola. Thus, request made before the learned Single Judge which was turned down on 31.01.2014, appears to have been renewed before the Division Bench again in Criminal Writ Petition No.807/2014.
35. After Division Bench of this Court expedited Sessions trial on 08.04.2014, recording of evidence in Sessions Trial No.144/2012 began on 13.07.2014. Time limit given by the Division Bench was to expire on 08.10.2014. On 10.09.2014, accused nos. 5 and 6 chose to surrender. Only two out of 8 absconding accused did surrender, while remaining 5 and one juvenile have yet not submitted themselves to the process of law. We have already pointed out above that the above two have surrendered in Sessions Trial No. 144/2012, which was not pending against them and also made a request for trying them along with accused nos. 1 to 4. When trial court granted their request, completed necessary formalities in Sessions Trial No. 233/2014 and then offered them necessary opportunity, they have not availed it. Their joint trial with accused nos. 1 to 4 is possible when there is single consideration ie when evidence to be used against accused nos. 1 to 4 is also used against them. Trial Court therefore, recalled 6 witnesses till then examined by it, and recorded their further examination in chief to the extent necessary and then asked them i.e., Mohd Hanif and Mohd Azam to cross examine those witnesses. They have declined it.
36. When they surrendered on 10.09.2014, Exh.89 was presented in ongoing Sessions Trial No. 144/2012 which was already time bound. Pursis is signed by them and their counsel. Bare reading of Exh.89 shows that it has been drafted by a competent lawyer with proper instructions and with object to defeat the High Court time limit. Trial Court after these two accused were committed in distinct sessions trial, complied with the procedure and then allowed consolidation. The later refusal to avail lawyer by these accused therefore, appears to be a part of the strategy.
37. When after framing supplementary charges on 02.12.2014, the trial Court recorded their plea, vide question no.3 they were asked whether they wanted legal assistance at the expenses of State and they have answered the question in negative. Senior Advocate Shri Gupta, who represented accused nos. 1 and 2 in Sessions Trial No.144/2012, is appearing for them now in Appeal No.139/2016.
38. The events having bearing on recording of evidence of P.W.1 to P.W.6 which have taken place after 02.12.2014, are already mentioned by us above. The trial Court has at each stage given them opportunity to cross- examine the prosecution witness. Not only this, but, the evidence of prosecution witness was explained to them in Hindi so as to enable them to understand and decide whether any cross-examination is to be conducted or not. It is not their case that after 10.09.2014 or 02.12.2014, they sought adjournment at any time to engage an advocate and it was declined by the Sessions Court. After 10.09.2014 the matter was taken up by the learned Sessions Court on various dates and on any of these dates, they could have produced their Advocate. Not only this, but, when the trial court has examined them under Section 313 Criminal Procedure Code, very first question put to them was about this evidence which has come on record and they have accepted that they have understood the evidence.
39. In this situation, we find substance in contention of learned A.P.P. as also Shri Mirza, learned counsel that various efforts were made by all as also by the accused persons against whom sessions trial no.144/2012 was going on to delay it. The absconding accused also attempted to help them in their design. The attempt was to frustrate the expeditious disposal of the trial or then to create some technical lacunae so as to take its advantage at a later stage. If there is any substance in contention of prosecution that undue pressure or influence was bring brought on prosecution witness, a remand by accepting such technical lacunae, may have a devastating effect.
40. The Hon'ble Supreme Court has in judgment reported in case of Ashish Chadha v. Asha Kumari, (2012) 1 SCC 680), while considering the provisions of Sections 303 and 304 of Criminal Procedure Code in paragraph no.29 observed that respondent no.1 in the matter before it had conducted the proceedings which revealed a design to delay framing of charges. The Hon'ble Apex Court therefore, quashed and set aside the order of the High Court and restored the order of Special Judge, framing charges against the first respondent and others. Hon'ble Supreme Court in (1986) 2 SCC 401 (Suk Das .vrs.Union Territory of Arunachal Pradesh), in paragraph no.6 has pointed out the obligation cast upon the Magistrate and Sessions Court in such matters. Here by inquiring from accused nos. 5 and 6 need of legal assistance, the trial Court has discharged it. In judgment reported at 2008 All M R (Cri) 2042 (Baliram Madhukar Dalvi .vrs. State of Maharashtra), the Division Bench of this Court has found that appellant before it was made to face a trial without assistance of a lawyer or any sort of legal aid before the Sessions Court. In paragraph no.6, contention of learned A.P.P. for State that accused was given opportunity to cross examine the witness, but, that opportunity was declined, has been taken note of. In paragraph no.13, fact that appellant was being represented by one advocate, who later on declined to perform that job is taken note of. Division Bench has observed that withdrawal of vakalatnama by said Advocate was in the course of recording of evidence and Sessions Judge, therefore could have at that juncture or even thereafter enquired with the appellant as to whether the appellant would like to engage any other advocate or would like to avail service of advocate at the cost of government. Earlier in paragraph no.10, while interpreting provisions of Section 304, it has been observed that such legal assistance cannot be thrust upon the accused person against his will. Rule 4 of the Criminal Manual is also looked into and it is held that it is not sufficient for Sessions Court merely to enquire at the time of recording of plea as to whether accused would like to avail the legal assistance. Sessions Court has to enquire even at later stage when it finds that accused was facing trial without legal assistance. Failure on the part of Sessions Judge in this respect results in denial of statutory right granted to the accused persons in sessions case and violation of Constitutional mandate under Article 21 of the Constitution of India. Thus the view reached is in facts and circumstances of the case.
41. In present facts, we have already found that on 10.09.2014 accused Mohd. Azam and Mohd. Hanif had appeared in Session Trial No.144/2012 with full instructions and with assistance of a lawyer. Thereafter on each and every occasion the learned Sessions Court has given them opportunity to cross examine. They have not claimed before the Sessions Court that they wanted to engage any particular Advocate and never sought time for that purpose. Their close relative accused were being represented by the eminent lawyers. While appearing they had the lawyer who drafted pursis for surrender and for joint trial. In this situation, we cannot find fault with the procedure followed by the learned trial Court.
42. Learned A.P.P. has invited our attention to a Division Bench judgment reported at 1972 Cri.L.J. 1327 (State .vrs. Ananta Singh and others). There pari materia provisions of Section 353 of Criminal Procedure Code 1898 have been looked into. Said provision is like Section 273 of present Criminal Procedure Code. In paragraph no.9, the said old section has been reproduced and in paragraph nos. 10 and 11, the Division Bench has found that Section 353 cannot be construed as laying down any prohibition against the exclusion by insisting upon a positive fact that evidence be taken in presence of accused, though it prohibited negative. The Division Bench found it necessary to examine the extent of such prohibition. It found that it was not so absolute in character that it permitted no exception so that the accused who himself would not allow the evidence to be recorded in his presence by disruptive behaviour. It held that the said provision could not be interpreted in such absurd manner. It has found that said section gave a right to accused, but, then presupposes that he accepts it and does not render its fulfillment an impossibility. In paragraph no.11, again the observations are on same lines. We find that these observations apply with full vigour in present facts. Not only it helps in understanding the scope and extent of the obligation cast upon the court under Section 273 of Criminal Procedure Code, but, it also helps interpreting provisions and obligations cast by Section 304 of Criminal Procedure Code. The procedural provisions can not be abused to sabotage the directions of superior court or to force the witnesses under pressure to depose again and again. If Mohd. Hanif and Mohd. Azam were really bothered about their rights or trial, they would not have sought a joint trial by appearing in Sessions Trial No. 144/2012. They did so after due deliberations with the expert advise. When the trial in two sessions cases is clubbed or consolidated, Section 273 Criminal Procedure Code does not, in such situation, necessitate fresh examination in chief of prosecution witnesses already examined and cross examined by the other co-accused persons. Mohd. Hanif and Mohd. Azam who sought joint trial with those co-accused were given adequate opportunity in the matter by the Trail Court. Procedure resorted to it in present case has not violated Section 273 or Section 304 Criminal Procedure Code at all.
43. We therefore find no substance in both the contentions raised on behalf of the appellants in present matters. The challenges as posed are therefore, rejected. However, merely because the challenges are rejected, the appeals cannot be dismissed. Appeals need to be heard on merits. Registry to list both the appeals for further consideration after two weeks as requested by learned counsel on behalf of the appellants.