Orissa High Court
Unknown vs State (Govt. Of Nct) Delhi on 16 August, 2019
Author: S. K. Mishra
Bench: S. K. Mishra
CRLA No.255 of 2017
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11. 16.08.2019 At stake is the procedure adopted in a criminal trial by
the learned Addl. Sessions Judge, Sundargarh in convicting
the appellant under section 302/34 IPC and passing sentence
of life imprisonment in S.T. Case No. 62/60 of 2013. Because,
the fair trial has not been given fair deal resulting the denial
of right to accused to be defended by an advocate of his
choice as mandated under Section 303 Cr.P.C. Outlining the
core of context in the memorandum of appeal, we proceed to
hear the appeal on merit.
2. Heard Mr. S.S. Ray learned counsel for the appellant
who filed memo of appearance in the court today. The same
be kept on record. We have also heard Mr. Sk. Zafarulla,
learned counsel for the informant and Addl. Govt. Advocate,
Mr. J. Katikia.
3. Perused the impugned judgment and the lower court
record. The conviction and sentence having been challenged
for want of fair trial, the facts need to be narrated in nutshell
to address the same.
Learned counsel for the appellant Mr. Ray assails the
conviction and sentence of the appellant on the ground that
the Right to Defence has been violated and thereby the
appellant-accused is deprived of getting fair trial. He relied
upon a decision reported in AIR 2012 SC 750 Md. Hussain @
Julfikar Ali Vs. State (Govt. of NCT) Delhi.
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The appellant as an accused faced trial for the charge
under section 302/34 IPC, Section 25 (1-B) (a) and Section 27
(1) of the Arms Act.
The accusation against him was that on 21.5.2011 at
8.30 a.m at Barangakhol forest chowk he committed murder
of one Madha Minz by means of Gainti and fire-arms in
furtherance of common intention with others.
On 20.06.2014, the accused did not plead guilty to the
charges and also prayed the court that as he had no means
to engage private defence, State defence counsel should be
engaged to defend him. Accordingly, advocate Sri S. Panigrahi
was appointed as State Defence Counsel by the learned Addl.
Sessions Judge, Sundergarh. The trial was ensued, 10
witnesses were examined.
3.a On 11.11.2016, the statement of accused under Section
313 Cr.P.C. was recorded. On the prayer of learned State
Defence Counsel, P.W.8 was recalled for further cross-
examination. It was completed on 21.01.2017. On
27.01.2017, the learned State Defence Counsel filed memo
closing the defence evidence. On 3.2.2017, on being engaged
by accused in custody, leaned advocate, Sri S. K. Mohapatra
and others filed Vakalatnama. On that date petition under
section 311 Cr.P.C. was also filed to recall P.W.7 and the
same was rejected. The case was posted for argument.
Thereafter the trial suffered three adjournments. On
22.2.2017, accused was not produced. Neither the defence
counsel nor Addl. Public Prosecutor appeared in the court.
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On 2.3.2017, the accused was produced from custody but
learned Defence Counsel did not turn up for argument. On
16.3.2017, a petition was filed for adjournment of the case
and to provide a Legal Aid Counsel to argue the case of
accused. On 17.3.2017, after hearing the accused, the case
was posted to 21.3.2017 for argument. It was mentioned on
that date in the order sheet that "since the local Bar Members
have boycotted this court neither the Addl. P.P. nor the
defence counsel and Legal Aid Counsel turn up to the court
to conduct the case of the accused. However, the accused is
directed to come on the date fixed for argument positively."
On 21.3.2017, accused was produced from custody and filed
a petition for adjournment and the case was again adjourned
to 23.3.2017 for hearing of argument. On that date again it
was adjourned to 27.3.2017. On that date the accused
expressed his inability to argue the case but the case was
posted for judgment to the next date. On the next date, i.e.,
28.3.2017 the accused filed a petition for time on the ground
that advocates of the Bar were not turning up but the learned
Addl. Sessions Judge did not allow further time and rejected
the prayer. Thereafter, the judgment was pronounced
convicting the accused-appellant under section 302/34 IPC
while acquitting him of the offences under Section 25(1-B)(a)
and Section 27 (1) of the Arms Act.
3.b On the next date, hearing on sentence was heard from
convict in absence of defence lawyer and Addl. P.P. and
convict was sentence to undergo imprisonment for life with a
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fine of Rs.25,000/-(rupees twenty five thousand), in default to
further undergo R.I. for one year.
Learned Addl. Sessions Judge, also directed that the
sentences for life shall be considered as not less than 25
years of R.I. and in case the State desires to remit the
sentence the same might be considered only after 20 years.
It is pertinent to note that the judgment has also
contained the following observation:-
"At the end of the trial the accused-convict had
became defenceless due to absence of lawyers and Addl.
P.P. as well. A defenceless convict should not be
awarded with extreme penalty. The prosecution may
agitate the matter before the Hon'ble High Court by filing
appeal for enhancement of sentence"
4. The order sheet in detail and observation of the trial
judge in the judgment leave no scope to doubt that the
accused who was facing trial was deprived of getting fair and
impartial trial. He has right to be defended under law,
regardless of merit of the case.
5. Learned counsel for informant, Mr. Zafarulla and
learned Addl. Govt. Advocate, Mr. Katikia submit that
accused was involved in number of cases. Such contention
bears no merit to take away the right of fair and impartial
trial of an accused in a trial. Under constitution such right is
absolute and the court guards it jealously.
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6. In the decision cited by learned counsel for the
appellant in Md. Hussain Case (Supra), the Hon'ble Apex
Court has also elucidated the above principle. It is stated
therein that:-
"11. In my view, every person, therefore, has a right to a
fair trial by a competent court in the sprit of the right to life
and personal liberty. The object and purpose of providing
competent legal aid to undefended and unrepresented
accused persons are to see that the accused gets free and
fair, just and reasonable trial of charge in a criminal case.
This Court, in the case of Zahira Habibullah Sheikh (5)
v. Stae of Gujarat MANU/SC/1344/2006: (2006) 3 SCC
374 has explained the concept of fair trial to an accused
and it was central to the administration of justice and the
cardinality of protection of human rights.
xxxxx xxxxxx xxxxxxx
17. The prompt disposition of criminal cases is to be
commended and encouraged. But in reaching that result,
the accused charged with a serious offence must not be
stripped of his valuable right of a fair ad impartial trial. To
do that, would be negation of concept of due process of
law, regardless of the merits of the appeal. The Code of
Criminal Procedure provides that in all criminal
prosecutions, the accused has a right to have the
assistance of a Counsel and the Code of Criminal
Procedure. Also requires the court in all criminal cases,
where the accused is unable to engage Counsel, to appoint
a Counsel for him at the expenses of the State. Howsoever
guilty the appellant upon the inquiry might have been, he is
until convicted, presumed to be innocent. It was the duty of
the Court, having these cases in charge, to see that he is
denied no necessary incident of a fair trial. In the present
case, not only the accused was denied the assistance of a
Counsel during the trial and such designation of Counsel,
as was attempted at a late stage, was either so indefinite
or so close upon the trial as to amount to a denial of
effective and substantial aid in that regard. The Court
ought to have seen to it that in the proceedings before the
Court, the accused was dealt with justly and fairly by
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keeping in view the cardinal principles that the accused of
a crime is entitled to a Counsel which may be necessary for
his defence, as well as to facts as to law. The same
yardstick may not be applicable in respect of economic
offences or where offences are not punishable with
substantive sentence of imprisonment but punishable with
fine only. The fact that the right involved is of such a
character that it cannot be denied without violating those
fundamental principles of liberty and justice which lie at
the base of all our judicial proceedings. The necessity of
Counsel was so vital and imperative that the failure of the
trial court to make an effective appointment of a Counsel
was a denial of due process of law. It is equally true that
the absence of fair and proper trial would be violation of
fundamental principles of judicial procedure on account of
breach of mandatory provisions of Section 304 of Code of
Criminal Procedure."
7. Keeping the said law in view, we are persuaded in the
facts of the case to order for retrial in exercise of powers of
Appellate Court under Section 386 Cr.P.C. Hence, it is
ordered:-
The conviction and sentence of appellant in S.T. Case
No.62/60 of 2013 is set aside. The case is remitted back for
retrial by the court of Addl. Sessions Judge, Sundergarh but
the retrial would be taken up from the stage of defence.
LCRs be returned immediately.
With the above observation and direction the CRLA
stands disposed of.
..............................
S. K. Mishra, J.
.............................. Dr. A. K. Mishra, J. Mkp/Pks