MURALEEDHARAN Vs. STATE

JUDGEMENT

(1.) The short question that arises for consideration is as to whether it is necessary for the appellate Court to insist upon the presence of the accused when the appeal is adjourned from time to time or when it is taken up for hearing. The petitioner is the first appellant in Crl. A. 122 of 1991 before the Sessions Court, Thiruvananthapuram. Contention of the petitioner is that the Code of Criminal Procedure does not envisage the appearance of the accused before the appellate court and so the Sessions Judge is not justified in insisting upon his presence in the court whenever the appeal is taken up for hearing or when it is adjourned from time to time.

(2.) S.205 of the Cr. P.C. enables a Magistrate to dispense with personal attendance of the accused and permit him to appear by his pleader. But he can, at any stage of the proceedings, direct the personal attendance of the accused and if necessary, enforce such attendance. Attendance of the accused may become necessary before a Trial Court especially in a case where the witnesses may have to identify him. Before the appellate Court such a situation may not be there. As S.273 provides for recording evidence in the presence of the accused and as in the ordinary course no such recording of evidence becomes necessary in the appellate Court there is no justification on the part of the appellate Court to insist upon the presence of the accused on hearing dates of the appeal.

(3.) There is no provision under the Code which makes it incumbent upon the appellate Court to insist upon the presence of the accused in the Court when the appeal is taken up for hearing. S.387 sheds sufficient light in this regard. Proviso to S.387 states that unless the appellate Court otherwise directs, the accused shall not be brought up or required to attend to hear judgment delivered. The proviso gives sufficient indication to hold that there is no necessity to insist upon the presence of the accused when the appeal is posted for hearing from time to time or even when it is posted for judgment. Of course, presence of the accused can be insisted upon by the Court when the judgment is pronounced. Apparently a discretion is given to the appellate Court.