Bombay High Court
Ashwini Kumar Sharma vs State Of Maharashtra And Anr on 8 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:714
Urmila Ingale 1-wpst-134-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION ST. NO. 134 OF 2024
ASHWINI KUMAR SHARMA ..PETITIONER
VS.
1. THE STATE OF MAHARASHTRA
2. CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH, MUMBAI ..RESPONDENTS
Mr. Dilip H. Shukla, for the Petitioner.
Mr. S.H. Yadav, APP for the State.
Mr. Kuldeep Patil, for Respondent No.2.
CORAM : M. S. KARNIK, J.
DATE : JANUARY 8, 2024
ORAL JUDGMENT:
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
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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.
"1. As directed by the previous order, the learned
APP Mr. Nakhwa has placed on record a report from
the City Civil and Sessions Court, Greater Mumbai in
reference to whether the video-conferencing facility
can be made available for examining the petitioner.
It is informed that the said facility is available in
Court No.52 of City Civil & Sessions Court, and
statement/evidence can be recorded through video
conferencing.
2. Similarly, the counsel for the petitioner has also
obtained instructions and he make a categorical
statement that on a given date, when his evidence is
to be recorded, he shall present himself in District
Court, Panipat, and if necessary directions are issued
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by this Court for recording his evidence through
video-conferencing facility, his evidence can be
recorded virtually.
2. The present Writ Petition is filed being
aggrieved by an order dated 30/10/2023, passed by
the Special Court for CBI.
The background facts would reveal that the
petitioner is arraigned as accused no.1 in Special CBI
Case No.68/2013 which is presently pending before
the Special CBI Court since 2013 and the case is ripe
for recording of evidence of the petitioner, who is an
accused. However, on account of the fact that he
met with an accident, he is bed-ridden and is in
continuous medical consultation.
It is in this background an application was filed
by the prosecution to ascertain his health condition.
While dealing with the said application, the
learned Judge clearly recorded that the medical
report reveal that the petitioner has not completely
recovered and he has weakness in movements and it
is also reported that his ailment relate to his brain
and he finds it difficult to remember the details of the
case, as a result of which the Addl. Sessions Judge,
who is the seisin of the Sessions trial has directed the
Panel of Doctors, AIMS Hospital to examine him and
accordingly file a status report on or before
30/10/2023.
3. It is the specific submission of the learned
counsel for the petitioner, that he is resident of
Panipat (State of Haryana) and his travel to AIMS in
New Delhi, would pose great difficulty for him,
considering his health condition.
Even I do not see any propriety in asking him to
be referred to New Delhi, if at all, his medical
condition has to be assessed.
In any case, as I suggested, the counsel for the
accused to ascertain whether the evidence can be
recorded through video conferencing facility, and
since a report from the City Civil & Sessions Court
Greater Mumbai, is received, informing that the video
conferencing facility is available, let the Addl.
Sessions Judge, fix a date of recording of his
evidence, some time in the second week of
December 2023 and accordingly, communicate the
date in advance to the petitioner, who shall then
present himself before the Court through the online
Urmila Ingale 1-wpst-134-24.doc
facility, available with the District Court, Panipat.
Though I understand the difficulty in issuing
direction to the Court which would fall outside my
jurisdiction, in the interest of justice, the Principal
District Judge, Panipat, is requested to permit the
video conferencing facility to be availed by the
petitioner for the purpose of recording of his
evidence, and once the date is fixed by the Sessions
Court in Mumbai, it shall be informed in advance to
the concerned Officer or the District Judge at Panipat,
and depending upon the availability of the video
conferencing facility, with due consideration, the
facility may be made available. If for some reason,
this facility could not be made available on a
particular date, by consultation, an appropriate date
suitable for both the sides, should be fixed.
4. In the wake of the aforesaid direction, the order
dated 30/10/2023 directing examination of the
petitioner by AIMS Hospital is not necessary and
hence, shall not be given effect to.
Needless to state that when the evidence is
recorded, even the Advocate representing the
petitioner shall also be permitted to appear in person
before the Special Court. Hence, Writ Petition is
allowed in the aforesaid terms."
3. So far as the physical condition of the petitioner is
concerned, even CBI conducted the physical verification of
the petitioner when it was revealed that the disability
suffered by the petitioner was in fact in terms of what is
recorded in the disability certificate. For convenience, the
report of the physical verification of the petitioner is
reproduced which reads thus :
"During verification, following observation have
been made
Shaking of legs has been stabled, however, right
Urmila Ingale 1-wpst-134-24.doc
hand still shaking continuously and right shoulder
has difficulty in movement.
Aswini sharma has been observed wit weakness in
movement for little distances accompanied/help by
his family member.
Related to brain working/responding, Ashwini kumar
has been hardly remembering details of any cases
against him. However, he recall that he is having
case in Bombay courts.
Further documents obtained from Manan Sharma
(son) revealed that:-
Orthopedies :- he has manimal improvement in
walking however (Dr Ashish Chaudary) he is not
fit to walk. Independently
Neuro :- he is a patient of rubral tenors and he is
not responsive to make of queries asked and
need more time for improvement.
Madhukar Bhardwaj"
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
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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
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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
Urmila Ingale 1-wpst-134-24.doc
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
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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.)
Signed by: Urmila P. Ingale
Designation: PS To Honourable Judge
Date: 08/01/2024 20:27:12
