JUDGMENT Poonam Srivastava, J.
1. Heard Sri D.N. Pandey, learned counsel appearing for the applicant and learned A.G.A. for the State.
2. The order dated 30.7.2005 passed by the Special Judge, Azamgarh in Session Trial No.505 of 1997, State v. Sohrab under Sections 307, 324, 506 I.P.C. has been challenged in this application. An application was moved on 30.7.2005 with a prayer that statement of the accused under Section 313 Cr.P.C. may be recorded through counsel as he is employed at present in Saudi Arab, he is not able to get leave. An undertaking was also given on behalf of the applicant that if some prejudice is caused on account of non-examination of the applicant under Section 313 Cr.P.C. then he will not raise any objection to the said effect either in appeal or revision in future. A copy of the application has been annexed as annexure No. 1 to the affidavit filed in support of this application. The Sessions Judge, Azamgarh rejected the said application issuing non-bailable warrant against the applicant and a notice under Section 446 Cr.P.C. fixing 9.8.2005. Reliance has been placed on the judgment of the Apex Court in the case of Chandu Lal Chandrakcr v. Puran Mal and Anr., A.I.R. 1988 Supreme Court, 2163 wherein the Apex Court has held that when the appellant's request for getting his statement recorded through counsel was rejected by the trial court and the order was confirmed by the High Court in misc. petition under Section 482 Cr.P.C. The Apex Court observed in paragraph No.2 of the said judgment, which is quoted below:
After hearing the learned counsel for the parties at some length, Mr. S.K. Puri, learned counsel appearing along with Mr. Rajinder Sachhar, stated on taking instructions, that the appellant does not want to answer any of the questions which are going to he put to him by the trial court under Sections 313 of the Code of Criminal Procedure and he further states that he will not raise the question of prejudice, if any caused to him on account of his non-examination at subsequent stage of trial, in appeal or revision. In view of this statement, we are of the opinion that it is not necessary for the appellant to appear before the trial court. We accordingly set aside the order of the trial court and High (Court, directing the appellant to appear before the trial court for making statement under Section 313 of the Code of Criminal Procedure.
Counsel for the applicant has claimed the same relief as allowed by the Apex Court earlier. I have heard learned A.G.A. for the State and he is in agreement that this application may be disposed of in terms of the decision of the Apex Court in the case of Chandu Lal Chandraker (supra).
3. After taking into consideration entire facts and circumstances of the case. 1 quash the order dated 30.7.2005 and all consequential orders. The Special Judge, Azamgarh is directed to hear the argument of the counsel and decide the case on merits without recording statement of accused Sohrab under Section 313 Cr.P.C. and pass final judgment in the trial. It is made clear that in the event, the applicant raises objection regarding non-recording of the statement under Section 313 Cr.P.C, the same shall not be permitted by the superior court.