Delhi District Court
Jailal Avedin vs . on 14 August, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.216:TIS HAZARI COURTS :DELHI
ID NO: 02401R0 240212012
CA NO: 47/2012
CC NO. 304/01/03
FIR NO: 58/2009
U/s 3 Railway Property
(Unlawful Possession) ACT
PS : RPF/ DELHI
JAILAL AVEDIN
Vs.
STATE
IN THE MATTER OF
Jailal Avedin
S/o Sh. Hamdool
R/o Village Validapakhar
PS Farakka
Distt. Murhidabad
West Bengal .........Appellant / Convict
Vs.
State ........... Respondent / Complainant
Date of Institution : 24.05.2012
Date of final hearing : 14.08.2012
Date of order : 14.08.2012
Appeal against the judgment of conviction and
order on sentence both dated 24.4.2012
JUDGMENT ON APPEAL
1. This appeal has been preferred by convict against judgment of conviction and order on sentence dated 24.4.2012 and 28.4.2012 respectively whereby appellant was convicted and sentenced with RI of one year apart from fine of Rs.10,000/ I/D 15 days SI for commission of offence punishable U/s 3 of RPUP Act.
2. I have heard Ld. Counsel Sh. Hari Singh Advocate for appellant / convict and Ld. Spl. PP Sh. Prithvi Singh for State. I have also carefully perused the appeal file as Page 1/4 of Judgment on Appeal Jai Lal Vs. State dt. 14.8.2012 2 well as Trial Court record.
3. Brief facts necessary for disposal of this appeal are that on 19.9.1999 while ASI Kiran Singh and HC Daharam Pal of RPF were on patrolling duty at Delhi Main Railway Station area along with Ct. Kalu , at around 3.30 pm, near platform no.20, they saw a person carrying a packet on his right shoulder . He was stopped. He disclosed his name as appellant Jai Lal and he was found carrying a packet which was found to be of Railway Property booked for Nanded , Maharashtra. Appellant was arrested for commission of offence punishable U/s 3 of RPUP Act. Case property was seized vide memo Ex.PW1/A and his personal search is Ex.PW1/B. His disclosure statement was recorded as Ex.PW1/C and he pointed out the place of lifting of parcel vide memo Ex.PW1/D. Documents of Railway Booking were collected, site plan Ex.PW1/G was also prepared . The consigner's statement on letter pad Ex.PW1/K was also obtained as per which the parcel contained an electrical motor.
4. During the trial, pre charge evidence was led followed by framing of charge against the appellant / convict on 18.1.2007 . After leading of post charge evidence, Section 313 Cr.P.C. statement of the accused was recorded wherein he denied that any recovery was effected from him. He claimed false implication. After hearing both the sides, impugned judgment of conviction and order on sentence were passed. Hence this appeal.
5. First plea raised by Ld. Counsel for the convict is that during the entire trial not even a single witness was cross examined as the accused had no legal assistance. Perusal of Page 2/4 of Judgment on Appeal Jai Lal Vs. State dt. 14.8.2012 3 the ordersheets also reveal that neither the accused had any counsel of his own nor any effort was made by Ld. Magistrate to provide legal assistance to him till the time the matter reached the stage of final arguments. In my considered view the sheer failure on the part of Ld. Trial Court to provide legal assistance is sufficient in its own wisdom to set aside the finding of conviction.
6. It is a settled legal proposition that in a criminal trial , legal aid shall be mandatorly provided to the accused at the State's Expenses . Moreso, when the accused is a terminally poor person like the convict / appellant in hand who is said to be a casual labour. He does have a Constitutional Right to have free legal aid. Hon'ble Delhi High Court has time and again issued even Administrative Instructions that all accused , specially who are in J/c, should be provided free legal aid.
7. Article 39 A of Constitution of India provides that State shall provide free legal aid by a suitable legislation or scheme to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
8. Section 303 of Cr.P.C . confers a right upon any person accused of an offence before a Criminal Court to be defended by a pleader of his choice.
9. Section 304 Cr.P.C . mandate legal aid to accused at State's expenses in a trial before the Court of Sessions where the accused is not represented by a pleader and where it appears to the Court that the accused has not sufficient means to engage a pleader.
10.In case titled Suk Dass Vs. UT of Arunachal, AIR 1986,991, Full Bench of Hon'ble Supreme Court ruled, Page 3/4 of Judgment on Appeal Jai Lal Vs. State dt. 14.8.2012 4 "......... appellant was not informed that he was entitled to free legal assistance nor did he enquire from the appellant whether he wanted to be provided to them at State's cost. The result was that appellant remained unrepresented by a lawyer and the trial ultimately resulted in his conviction. This was clearly a violation of the Fundamental Right of the appellant under Article 21 (Constitution of India) and the trial must accordingly be held to be vitiated on account of fatal Constitutional infirmity and the conviction and sentence recorded against the appellant must be set aside ."
11.Similar view was expressed by Hon'ble Supreme Court in Khatri and Others Vs. State of Bihar (1981) 2 SCR 408 and in case titled M.H.Hoskot Vs. State of Maharashtra (1978)3 SCC 544.
12.In case titled Sajjan Kumar Vs. CBI , Criminal Revision 328/2012 decided on 3.8.2012 it has been observed that :
"Every person, therefore, has a right to a fair trial by a competent Court in the spirit of life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused person are to see that the accused get free and fair , just and reasonable trial of charge in a criminal case."
13. In view of the omission on the part of the Ld. Trial Court , the whole trial is vitiated and as such judgment of conviction and order on sentence both can not be sustained. Both accordingly are set aside. Convict / appellant be released from J/c forthwith in this case if not required in any other case. Appeal file be consigned to RR and TCR be sent back with copy of this order.
ANNOUNCED AND DICTATED
IN OPEN COURT ON : 14.8.2012 (SURINDER S. RATHI)
Addl. Sessions Judge02
Central : Delhi
Page 4/4 of Judgment on Appeal Jai Lal Vs. State dt. 14.8.2012