Judgment passed in Moinoddin s/o.Khodboddin vs.State of Maharashtra is not good law

P.C. :-

1. It appears that in this case in view of

the reference made by the learned single judge

(Coram: Shri A.S. Oka, J.) vide judgment and

order dated 25th July,2008 in Criminal Writ

Petition No.1455 of 2008, the matter has been

referred to the Division Bench. The issue

which has been referred to the Division Bench

is as under:

“Whether the proviso to section 387 of

the Code of Criminal Procedure, 1973 is

controlled by sub section 5 and sub section

6 of section 353 of the said Code or

whether the proviso carves out an exception

to the rule contained in sub sections 5 and

6 of section 353 in so far as the same

apply to the Judgment in Appeal ? ”

2. The learned single judge did not concur

with the view expressed by the another learned

single judge Shri N.V. Dabholkar, J. recorded

in “Moinoddin s/o.Khodboddin vs.State of

Maharashtra 105(2) Bombay Law Reporter, page

2961”. The said learned judge observed that

the proviso to section 387 of Code of Criminal

Procedure is required to be read in the light

of section 387 read with 353(5) and (6). The

learned single judge thereafter observed that

the subordinate appellate Court would be

obliged to secure the presence of accused for

pronouncing of judgment, except in the cases

where the judgment is of acquittal or one of

fine.

3. In order to consider the said issue, it

will be necessary to read the provisions of

section 353(5) and (6) of the Code of Criminal

Procedure.

4. Section 353(5) of the Code read as under:

“If the accused is in custody, he

shall be brought up to hear the

judgment pronounced.”

Section 353(6) of the Code read as under:

“If the accused is not in

custody, he shall be required by the

Court to attend to hear the judgment

pronounced, except where his personal

attendance during the trial has been

dispensed with and the sentence is

one of fine only or he is acquitted.”

5. The said provisions appearing under

Chapter XXVII deal with the judgment which is

delivered in every trial in any criminal

Court. The provisions therefore lead to the

procedure which has to be followed before the

delivery of judgment by the trial Court. Sub

sections (5) and (6) of Section 353 clearly

disclose that the accused has to be produced

before the trial Court to hear the judgment

which is pronounced.

6. So far as, section 387 of the Code is

concerned, that pertains to the judgment which

is to be delivered by the subordinate

Appellate Court. Said section reads as under:

S.353: “The rules contained in Chapter

XXVII as to the judgment of a Criminal

Court of original jurisdiction shall

apply, so far as may be practicable, to

the judgment in appeal of a Court of

Session or Chief Judicial Magistrate.

Provided that unless the Appellate Court

otherwise directs, the accused shall not

be brought up, or required to attend, to

hear judgment delivered.”

7. If the said provision is perused, it would

be clear that the proviso to section 387 of

the Code has been added as an exception to the

main section. Therefore, it is abundantly

clear though the rule contained in Chapter

XXVII, so far as the judgment of criminal

Court of original jurisdiction(trial Court),

applies to the judgement in appeal of

appellate subordinate Court, the proviso gives

discretion to the appellate Court whether it

thinks it fit and proper for the accused to be

brought in Court to hear the judgment to be

delivered.

8. In our view, the said proviso carves out

an exception to the general rule which is

provided under Section 353(5) and (6) of the

Code. We, therefore, disagree with the view

expressed by the learned single judge Shri.

N.V. Dabholkar, J. recorded in the case of