Karnataka High Court
Kasappa S/O Hanmant Janawad vs The State Of Karnataka on 8 June, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CRIMINAL APPEAL NO.100314/2017
BETWEEN:
1. KASAPPA S/O HANAMANT JANAWAD
AGE: 34 YEARS, OCC: COOLIE,
R/O: GADYAL, TQ: JAMAKHANDI,
DIST: BAGALKOT.
2. LAXMAN @ MUDAKAPPA
S/O: RAMAPPA KOLEKAR,
AGE: 49 YEARS, OCC: AGRIL,
R/O: GOTHE, TQ: JAMAKHANDI,
DIST: BAGALKOT.
3. NINGAWWA AMMANNA @ SHRISHAIL
SAGARAPPAGOL,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O; GADYAL, TQ: JAMAKHANDI,
DIST: BAGALKOT.
...APPELLANTS
(BY SRI K.S.PATIL, ADV.)
2
AND:
THE STATE OF KARNATAKA
REPRESENTED BY PSI,
SAVALGI POLICE STATION,
TQ: JAMAKHANDI, DIST: BAGALKOT.
REPRESENTED BY STATE PUBLIC PROSECUTOR
AG OFFICE, HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, SPP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF
Cr.P.C., PRAYING TO CALL FOR RECORDS IN S.C.NO.86 OF
2013 AND TO SET ASIDE THE JUDGMENT AND SENTENCE
DATED 26.11.2016 PASSED BY I ADDL. DIST. AND SESSIONS
JUDGE, BAGALKOT TO SIT AT JAMAKHANDI, FOR THE
OFFENCES PUNISHABLE UDNER SECTION 302, 120(B) R/W
SECTION 34 OF IPC AND ACQUIT THE APPELLANT BY
ALLOWING THIS APPEAL
THIS APPEAL COMING ON FOR HEARING ON IA THIS
DAY, NARAYANA SWAMY J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though the appeal is posted for consideration of IA.No.1/2018 for early hearing, with consent of both the parties the matter is taken up for final hearing. 3
2. The accused 1 to 3, who are appellants herein, were charged for the offences punishable under Sections 302, 120(B), 109 r/w 34 of IPC in S.C.No.86/2013 by the learned I Addl. District and Sessions Judge, Bagalkot. The learned Sessions Judge, by judgment and order of conviction dated 26.11.2016 convicted the accused for the offences referred to above and sentenced them to undergo imprisonment for life and they shall also pay fine of Rs.10,000/- each and in default shall undergo imprisonment for one year. Challenging the same, this appeal is filed by the accused.
3. Learned counsel for the appellants submits that the learned Sessions Judge has committed an error in convicting the accused without providing an opportunity to the appellants to cross-examine the prosecution witnesses. Though the accused had engaged a counsel, he was not so efficient in conducting Sessions cases and hence he has also participated in the case and the same has been recorded. Further, without providing an opportunity to the accused 4 persons to defend themselves and also not complying Article 21 of the Constitution of India, the accused persons have been convicted. Hence, the conviction is bad in law and contrary to Article 21 of Constitution of India and settled principles of law. He also submits that the accused persons are very poor and they were not in a position to engage the counsel for effective representation, and as such, had engaged a counsel who was not well-versed in criminal matters. The learned counsel did not participate for the purpose of cross examination which was denial of valuable right in favour of the accused. Hence, he seeks to allow this appeal and to set aside the judgment and order of conviction passed by the learned Sessions Judge and further direct the respondent to set off and set free the accused persons. In support of his contention the learned counsel has relied upon the judgment of this Court in the case of Somappa Hanamanthappa Chouraddi Vs State of Karnataka reported in ILR (KAR) 1986 0 1766, wherein the Court held at Paragraph No.3, which reads as under:
5
"3. There is sufficient force in these contentions of Mr. H.F.M Reddy, that the accused had been denied the opportunity of making proper defence in the case for want of expert services of a senior Counsel engaged by him. One of the components of fair procedure in the administration of criminal justice is that the accused should have the opportunity of making his defence by a legal practitioner of his choice. That is his Constitutional right, under Article-22 of the Constitution, and in order to give effect to this constitutional right, it has also now been embodied in the Directive Principles of State Policy, as provided under Article-39A of the Constitution, that the State shall secure equal justice and free legal aid by a suitable legislation or scheme or any other way to ensure that the opportunities for securing justice are not denied to any citizen be leason of economic or other disabilities. That right has also been statutorily accepted and incorporated in Section-303 of Cr.P.C. which provides that any person accused of an offence before a Criminal Court or against whom the proceedings are initiated under this Code may have his right to defend by a Pleader of his choice. That right, therefore, should not be interfered with."6
4. Learned counsel for the respondent submitted that the prosecution has proved their case and accused have been punished for the aforesaid offences. Though the accused engaged their counsel but the order reveals that he has not effectively prosecuted case of the accused persons and it was appealed to the learned Sessions Judge to engage any other counsel or to avail the free legal aid. In view of the accused not provided with either of the requests, it was appropriate for the learned Sessions Judge not to proceed further. However, he has proceeded with the case and convicted the accused persons for the aforesaid offences. The prosecution has supported the order of the learned Sessions Judge.
5. Heard the learned counsel for both the parties.
6. We have gone through the records of the trial Court and case of the accused-appellants have been examined with reference to the order sheet maintained, which 7 discloses that the prosecution witnesses have been examined and there was no presence of the learned counsel for the accused and there is no effective cross examination of the prosecution witnesses. It is established principle of law that the accused persons should be given fullest opportunity to defend their case. Though the accused have engaged a counsel who represented them but mere representation is not sufficient and representation should be effective by a counsel who is well-versed in the criminal matters. The learned counsel who was engaged by the accused persons though he was qualified but it seems, he was not well-versed with the proceedings and the appellants, therefore, sought for engaging a different counsel or to seek assistance of legal aid. The said request of the appellants ought to have been considered by the learned Sessions Judge which having not been done, we are of the opinion, there is failure of compliance of provisions of Section 303 & 304 of the Code of Criminal Procedure and Article 21 of the Constitution of India, because it is a right guaranteed to the accused persons 8 to defend their case effectively. It is further contemplated that the accused have got right to defend their case by a pleader of their choice. Section 304 of Cr P C further provides for free legal aid to the accused in certain cases at the discretion of the learned Sessions Judge. It is stated that in a trial if the accused is not represented by a pleader and if it is found that accused has no sufficient means to engage the pleader then it shall be the duty of the Court to engage a pleader on behalf of the accused at the State expenses and this is not followed by the learned Sessions Judge in the instant case. Though the learned Sessions Judge makes an order to that effect that the accused pleader has not cross-examined but did not go further to find out whether they need free legal aid or time to engage a different counsel.
7. In order to provide effective meaning to Article 21 of the Constitution of India, an amendment was brought to promote justice on the basis of equal opportunity and duty to provide free legal aid. Thus it shall be the duty of the State to 9 provide free legal aid to the needy persons. It is submitted by the learned counsel for the appellants that the accused persons are very poor and they were not even in a position to avail the services of an efficient pleader. Under these circumstances, we hold that the learned Sessions Judge should have interacted with the accused persons for the purpose of engaging a different counsel or availing free legal aid at State's expenses. That exercise has not been done in the instant case.
8. Hon'ble Supreme Court has issued directions to the concerned District Judge to arrange free legal aid in the judgment in the case of Hussainara Khatoon and Others (IV) Vs Home Secretary, State of Bihar, Patna, reported in (1980) 1 SCC 98, wherein the Hon'ble Supreme Court has held at paragraph No.7 as under;
7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows:
10
39-A. Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added) This article also emphasises that free legal service is an 'unalienable element of 'reasonable, fair and just' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of 11 course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the undertrial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such undertrial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated February 12, 1979. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.
9. The Hon'ble Supreme Court has issued directions to the concerned District Judge to arrange free legal aid in the judgment in the case of Sheela Barse Vs State of Maharashtra reported in AIR 1978 SC 1548, and the Supreme Court has also held in the judgment of Madhav Hayawadanrao Hoskot Vs State of Maharashtra reported 12 in AIR 1978 SC 1548, at paragraph Nos.11, 13 and 25 which reads thus;
11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty is basic to civilised jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Art.21.
13. In the present case there is something dubious about the delivery of the copy of the judgment by the Jailor to the prisoner. A simple proof of such delivery is the latter's written acknowledgment. Any jailor who, by indifference or vendetta, withholds the copy thwarts the court process and violates Art. 21, and may pave the way for holding the further imprisonment illegal. We hope that Jail Manuals will be updated to 13 include the mandate, if there be any omission, and deviant jail officials punished. And courts, when prison sentence is imposed, will make available a copy of the judgment if he is straight marched into the prison. All the obligations we have specificated are necessarily implied in the right of appeal conferred by the Code read with the commitment to procedural fairness in Art. 21. Section 363 of the Cr. P. Code is all activist expression of this import of Art. 21 and is inviolable. We say no more because we have condoned the delay in the present case although it is pathetic that for want of a copy of judgment the leave is sought after the sentence has been served out.
24. We may follow up the import of Maneka Gandhi and crystallize the conclusion. Maneka Gandhi's case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure. Enough has been set out to establish that a prisoner, deprived of his freedom by court sentence but entitled to appeal against such verdict, can claim, as part of his protection under Article 21 and as implied in his statutory right to appeal, the necessary concomitant of right to counsel to prepare and argue his appeal.
14
25. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Art. 142, read with Arts. 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by Art. 136 of the Constitution. The inference is inevitable that this is a State's duty and not government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of 15 justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court.
10. The Hon'ble Supreme Court has also held similar findings in the case of Bajiban Salambhai Chauhan and Others Vs U.P. State Road Transport Corporation reported in 1990 (Supp) SCC 769,
11. In the light of the judgment referred to above, we are of the opinion that providing an effective legal service at the State expenses in terms of the provisions is also a right available after making accused known about such a right. In this case as it is held by the Hon'ble Supreme Court in the judgment referred to above, the learned Sessions Judge had to interact with the accused persons as to the free legal assistance. Since it is not done by the learned Sessions Judge to that extent, we hold that learned Judge has ignored the said provisions.
16
12. In view of the above, we set aside the judgment and order of conviction passed by the learned Sessions Judge in S.C.No.86/2013 dated 26.11.2016 and we remand this matter for fresh consideration. The learned Sessions Judge is directed to proceed further from the stage of cross- examination after interacting/ascertaining with the accused persons whether they engage any advocate of their choice or whether they need legal aid at the State expenses and then pass fresh judgment in accordance with law. Liberty is reserved to the prosecution if they are so desired to lead further evidence.
Accordingly, the criminal appeal is disposed of. Office is directed to send the records forthwith.
Sd/-
JUDGE Sd/-
JUDGE msr