Ashwini Kumar Sharma v. The State of Maharashtra

1. Heard learned counsel for the petitioner and learned counsel for the respondent no.2-CBI. The petitioner is arraigned as an accused in FIR in connection with Criminal Special Case CBI No. 68 of 2013 pending before the Session Special CBI Court. The offence is under Sections 420, 120B, 419, 384 of the Indian Penal Code, 1860 read with Section 8 of the Prevention of Corruption Act, 1988. The challenge in this petition is to the impugned order dated 29/12/2023 which reads thus: “Ld. SPP Shri Sandeep Singh for CBI is present. P.O. Shri Rajkumar Chavan for CBI is present. A-1 on bail 2024:BHC-AS:714 is absent. Adv. Prajapati a/w Adv. Murtuza Najimi i/b Adv. Dilip Shukla for A-1 are present. O-Ld. Adv. Murtuza Najimi for A-1 submitted that he has spoken to the son of the accused who is young boy and he showed his helplessness to produce his father who is suffering from various ailments due to accident. The matter is posted for judgment today. It seems that the Accused Ashwini Kumar will not attend the Court. Hence to secure his presence, NBW be issued. S. P. of CBI, ACB, Mumbai to carryout all safeguards while executing the NBW and production before the Court. Matter adjourned to 09-01-2024 for Judgment.”

2. The petitioner is issued with disability certificate which is at page 38 of the paper-book in respect of the head injury wherein it is recorded that he is suffering from 83% disability. In an earlier round of litigation where the petitioner had sought permission to record the evidence through video conferencing, this Court by order dated 03/11/2023 in Criminal Writ Petition Stamp No. 18758 of 2023 passed the following order.

4. Section 313 statement has been recorded through video conferencing and now the case is posted for judgment. Since the petitioner is not remaining physically present, the trial Court issued a non bailable warrant. Chapter XXVII of the Code of Criminal Procedure (“CrPC”, for short) deals with the ‘judgment’. Sub-sections 4, 5, 6 and 7 of Section 353 which are important from the perspective of the present petition needs to be looked into, the relevant provisions read thus: “(4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) 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: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.”

5. No doubt, the accused is required to attend the Court to hear the judgment pronounced having regard to the nature of the offence alleged against him. Learned Counsel Shri Patil appearing for the CBI vehemently opposed the present petition and insisted that in compliance with the mandate of the Section 353 of CrPC, the accused must attend the trial Court at the time when the judgment is pronounced.

6. Learned counsel for the petitioner on instructions submitted that having regard to the physical condition of the petitioner, it is very difficult for him to remain present in the trial Court. It is submitted that till 2010 the petitioner remained physically present. Thereafter, the petitioner has been attending the trial through his lawyer after applying for exemption and has been remaining present through video conferencing as required. It is submitted that during these years, there has been no attempt on his part to abscond or has at any time misused his liberty while on bail. In any case, it is submitted that the physical condition of the petitioner is such that it is not possible for him to avoid the consequences of the judgment which may follow.

7. Learned counsel for the petitioner on instructions submitted if the judgment is pronounced by permitting the petitioner to attend through video conferencing, the petitioner shall not raise any plea in any proceeding that the judgment is invalid only by the reason that he was not physically present at the time of pronouncement of judgment. Statement is accepted. Furthermore, I am informed by Mr.Patil that the officers of the CBI are present for the purpose of the execution of the non-bailable warrant at Panipat where the petitioner is presently residing. Considering the peculiar facts of this case and having regard to the medical evidence on record coupled with the fact that the evidence of the petitioner is recorded through video conferencing and as he is suffering from 83% physical disability, in my opinion, in the interest of justice, this is a fit case where the judgment can be pronounced by the trial Court by permitting the petitioner to present himself through video conferencing. Learned counsel submits that necessary arrangement will be made by the petitioner’s son ensuring that the petitioner is taken to the District Court- Panipat for remaining present through video conferencing at the time of pronouncement of judgment by the trial Court. Learned counsel for the petitioner on instructions further states that he has no objection if the officers of the CBI who are at Panipat accompany the petitioner to the District Court at Panipat at the time of pronouncement of judgment. Upon pronouncement, the petitioner shall abide by further orders that may be passed by the trial Court. It is made clear that if any adverse order is passed against the petitioner, it is always open for the petitioner to seek appropriate recourse in accordance with law. I have already reproduced the order dated 03/11/2023 passed by this Court and the same directions as in paragraph 3 of the said order shall apply even for tomorrow’s date i.e. 09/01/2024 or any other date when the judgment is to be pronounced by the trial Court.

8. The petitioner to abide by the statement made. With these directions, the petition is disposed of.

9. The parties to act on the authenticated copy of this order. (M. S. KARNIK, J.) Designation: PS To Honourable Judge