STATE OF BIHAR Vs. GIRIJA SINGH

JUDGEMENT

(1.) BY order dated 8.2.2012 passed in this Death Reference with analogous cases, we had noticed some peculiar facts and formulated two questions, which have to be answered at this interlocutory stage before we could proceed with the hearing. We had requested the assistance of learned Advocate General and Patna High Court D. REF. No.5 of 2010 (10) dt.21-02-2012 Sri Ashwani Kumar Sinha, learned A.P.P. in this regard. Some learned counsels for the appellants are also present and have been heard.

(2.) THE facts which gave rise to this Court in formulating the questions to be answered in this group of cases are that sixteen persons were sentenced to death apart from a large number of persons who were sentenced to life imprisonment. As per procedure established under the Code of Criminal Procedure, after recording of evidence , all the parties were heard by the trial court. The arguments having concluded, the judgment was reserved and the date was fixed for delivery of judgment . On the said date i.e. 7.4.2010 on behalf of four of the accused persons i.e.Shiv Mohan Sharma and Dharma Singh apart from Shekhar Choudhary and Bhola Rai, application, under Section 317 of the Code of Criminal procedure was filed. The trial court rejected the same, cancelled the bail bonds and issued warrants for their arrest by the order of the same day. While doing so, he did not separate their trial but proceeded to deliver the judgment, which, as noted above, was reserved after hearing the parties.By the judgment of the said date Shiv Mohan Sharma and Dharma Singh as well as several other accused were found guilty of offence under Section 302 of the Indian Penal Code . It is in this perspective the first question arises whether in absence of the accused, can a judgment be delivered. Then on the same day, the Sessions Court heard the arguments in respect of sentencing. As noted above, Shiv Mohan Sharma and Dharma Singh apart from others were sentenced to death. So far as Shekhar Choudhary and Bhola Rai are concerned, they were acquitted. Thus, seen Shiv Mohan Sharma and Dharma Singh were sentenced to death without any hearing. Reference for confirmation of death sentence in respect of them and others is before us. It is in this perspective the second question arises whether in absence of a convicted person, can a sentence be passed against them ? We have heard the parties and considered the matter.

(3.) FROM facts of the present case, as noted by us, it would be seen that after hearing the accused persons, the court reserved the judgment. The law and the legal requirement were fully satisfied and then if on the day the judgment was delivered and the accused person chose not to be present, in our view, the Court is not to wait but to deliver the judgment because no prejudice is caused to the accused, who were aware of the date fixed in the matter and had already been heard. Thus, the answer to the first question is that when the court delivers a judgment, which has been pending consideration after hearing the parties, on the date when the judgment is delivered, physical presence of the accused before the court is not necessary. To repeat, if an accused absconds or is not present, the date for delivering the judgment would not be postponed. The judgment would nevertheless be delivered. In this connection we may also refer to Section 353 of the Code of Criminal Procedure .First we come straightway to Section 353(7) of the Code of Criminal Procedure.