AI Structured Summary
Not yet generated for this judgment
Judgment
Singaravelu, J.—This is a petition u/s 482 of the Criminal Procedure Code; filed by the Deputy Superintendent of Police, Crime Branch C.I.D., Madras, for issue of appropriate directions with reference to the conduct of the trial in C.C.No.1922/84, on the file of the Chief Metropolitan Magistrate, Egmore, Madras.
The facts of the case are briefly these:- On 18.2.1984, the petitioner presented a complaint before the said Court against the respondent herein and three others for offences under sections 120-B read with 379 and 411 of the Indian Penal Code and under sections 5(1) and 5(2) of the Official Secrets Act. The 1st accused is the Assistant Director of the Public (Translation) Department, Fort St. George, Madras. The 2nd accused is the sister''s son and son-in-law of the 4th accused. The 3rd accused was a Reporter in the Legislative Assembly Department and was working as a Personal Assistant to the 4th accused. The 4th accused, namely, the respondent herein, is the Leader of the D.M.K. Party and was the Chief Minister of Tamil Nadu from 1969 to 1976.
The gist of the complaint is that all the four accused entered into a conspiracy to commit theft of a secret document, namely, the Report of Justice C J.R. Paul and managed to receive this secret document stolen from the Office of the Public Department and took xerox copies of the said report and made in public. The 1st accused who was an Assistant Director in service was entrusted with the said secret document for translation and in his official capacity, he removed the document to his house and wilfully communicated the same to Accused 2 and 3 who passed it on to the 4th accused, the respondent herein. Thereafter, the respondent (4th accused) convened a Press Conference on 24.11.1981 and exhibited the xerox copy of the report. Thus the accused are said to have committed the various offence as aforesaid.
The learned Chief Metropolitan Magistrate took the above complaint on file on 25.2.1984 and issued summons to all the four accused and the case was posted to 19.3.1984. Accused 1 to 3 appeared on summons, but the 4th accused, though served, did not appear. Therefore, fresh summons were issued to the 4th accused, and though served on him, he refused to participate in the trial. A bailable warrant was originally issued and executed, and the 4th accused appeared before the Court, but he appears to have told the trial court that he was not contesting the case, that he was not participating in the trial since the case was foisted against him by the Government. He also told the Presiding Officer that he would not attend the Court for future hearings. Copies of the documents were tendered to all the accused and Accused 1 to 3 had received them, but the 4th accused, respondent herein, refused to receive the same. The respondent did not appear for the subsequent hearings, and on 29.9.1984, the Court passed an order that the trial will proceed in the absence of the 4th accused by obtaining the services of a pleader to represent the 4th accused. Accordingly an advocate who is a Member of the Legal-Aid Committee was appointed by the Court u/s 304 (1)and (2) of the Criminal Procedure Code to represent the respondent. After the appointment of the amicus curiae, the Court sent notice to the respondent (4th accused) to ascertain whether he had any counsel of his own whether the amicus curiae could represent him. The respondent had replied to the court reaffirming that he was not going to associate himself with the Court and that he did not desire to contest. He further added that no counsel need be appointed by the Court and that he was not agreeable for the appointment of any counsel on his behalf. The learned Magistrate thought that the presence of the 4th accused was necessary and, therefore, is-sued a non-bailable warrant to secure the presence of the 4th accused, it is at this juncture, the prosecution has filed this application u/s 482 of the Criminal Procedure Code for issuing suitable directions to the trial Court.
Notice of this petition was sent to the respondent (4th accused) and it was duly served on him, but he had reiterated by endorsing on the summons that he has already made his stand clear and that he had nothing more to say. Further, on the date of the hearing of this petition, namely on 24.4.1985, the respondent was absent and there was also no representation on his behalf.
Learned Public Prosecutor has submitted that the 4th accused is refusing to participate in the trial in order to gain some political advantage, and, therefore, the issue of a non-bailable warrant was not warranted in the circumstances of the case, and that suitable directions may be issued to the trial court for a fair and speedy trial of the case.
This complaint has been pending in the trial court from February 1984 onwards and the case could not be taken up on account of the defiant attitude of the 4th accused not to associate himself with the trial. The other three accused were present in Court on all the hearings and they were also represented by their learned counsel. Thus the case is held up for want of the presence of the 4th accused who is repeatedly reaffirming that he would not participate in the trial and that no counsel need be appointed for him. Now, the question is, what is the direction that has to be issued to the trial court for the conduct of the case?
The trial court has appointed an amicus curiae to represent the 4th accused, but the learned counsel, namely, the amicus curiae had withdrawn from the case. The respondent has also made it plain to the Court that he does not want to be represented by the Counsel much less by the amicus curiae. Therefore, the order of appointment of amicus curiae u/s 304 of the Criminal Procedure Code has to be set aside on merits. Even otherwise, u/s 304 of the Criminal Procedure Code, only where the accused has not sufficient means to engage a pleader, the Court can appoint a pleader for his defence at the expense of the State. It is nobody''s case that the 4th accused has no means to engage a counsel for his own. No useful purpose will be served in appointing an amicus curiae in the circumstances stated supra.
The relevant provision for trial being held in the absence of the accused is found in section 317 of the Criminal Procedure Code. Section 317(1) of the Criminal Procedure Code says that where the personal attendance of the accused be-. fore the Court is not necessary or that the accused persistently disturbs the proceedings in Court, the Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with the enquiry in his absence. Section 317(2) of the Criminal Procedure Code says that if the accused is not represented by a pleader, or if the Magistrate considers the personal attendance of the accused necessary, he may order that the case of such accused be taken up or tried separately. In other words, it is open to the Magistrate u/s 317(2) of the Criminal Procedure Code to split up the case against the 4th accused, if the Court feels that the personal attendance of the 4th accused is necessary.
It would be seen from the foregoing provisions that the trial court would have very well split up the case against the 4th accused and proceeded with the trial of the other accused, and in fact, this could have been done long ago. It is too late in the day to split up the case against the 4th accused for a separate trial especially in view of the fact that the respondent (4th accused) had determined not to contest the case or participate, in the trial. Therefore, no useful purpose will be served in splitting up the case at this distance of time, since even after splitting, the Court will have to face the same situation.
Of course, section 273 of the Criminal Procedure Code lays down that all evidence in the course of the trial shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader. But, this provision of law is subject to section 317 (1) and (2) of the Criminal Procedure Code. The following words in section 273 "except as otherwise expressly provided" are very significant and provides an exemption to this Rule. Therefore, Section 273 of the Criminal Procedure Code must be read along with section 317 (1) and (2) of the Criminal Procedure Code.
A close reading of section 317 of the Criminal Procedure Code would show that the trial can proceed even in the absence of the accused and even when he is not represented by a pleader, though it is not expressly mentioned in the section. Having regard to the allegations and the nature of the charges in the complaint, I am of opinion that the personal attendance of the 4th accused is not necessary in the interest of justice. It is all the more so when the respondent has made it clear repeatedly that he is not participating in the trial nor was he engaging a counsel of his own to defend him. Thus, the 4th accused has adopted an intransigent attitude for reasons of his own and has deliberately refused to participate in the trial. Thus, this amount to a willful abstention and it must be deemed that he is persistently disturbing the proceedings in Court by procrastination.
Be that as it may, though a piquant situation has been created, the Court should not feel helpless, and the Court will be well within the limits of law to proceed with the trial of the case even in the absence of the respondent (4th accused). As already pointed out, the respondent had refused to receive even the copies of the documents and refused to engage a lawyer of his own. He even declined to avail the services of an amicus curiae and he has repeatedly reaffirmed his determination not to appear before the Court. It is noticed that on account of this attitude of the respondent, the three other accused are left in the lurch, and the case is being adjourned from time to time. It is also submitted on behalf of the prosecution that the 1st accused is a Government Officer and he is placed under suspension. The third accused is also a public servant in the Legislative Assembly and the three accused are put to hardship on account of the refractory attitude of the 4th accused, who does not want to participate in the trial for his own reasons. Even if the 4th accused is brought to Court through some coercive steps, it will be futile and the proposed remedy will only aggravate the malady.
For all these reasons, I am satisfied that this is an eminently fit case for proceeding with the trial of the case in the absence of the respond-ent/4th accused. In this connection it may be stated that the" very object of section 273 of the Criminal Procedure Code is to provide the maximum opportunity for an accused for a fair trial to defend himself in a criminal case. In this case, the respondent has waived that right by his persistent conduct.
The result is, the trial Court is directed to proceed with the trial of the case in the absence of the respondent (4th accused) and dispose it of according to law. The trial court will fix an early date for trial and dispose of the case expeditiously. Stay vacated.