Allahabad High Court
State vs Shyam Babu on 28 September, 2021
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 78 Case :- GOVERNMENT APPEAL No. - 3283 of 1984 Appellant :- State Respondent :- Shyam Babu Counsel for Appellant :- A.G.A. Counsel for Respondent :- Sudhansu Srivastava Hon'ble Ajit Singh,J.
Heard Sri Narain Mishra and Sri Hari Pratap Gupta, learned A.G.As appearing on behalf of the State. Both the counsel have assisted the Court in disposing off this appeal.
This appeal was filed by the State of U.P. against the acquittal order dated 28.8.1984 passed by the 10th Additional Munsif Magistrate, Kanpur in case no. 232 of 1984.
By the impugned order the respondent Shyam Babu was acquitted by the trial court and the trial court has specifically mentioned that the accused was not represented by any lawyer and in this regard several letters were written by the Court to the Bar Association, Kanpur, Legal Aid Committee, District Magistrate and Home Secretary, State of U.P. to provide counsel to the accused who was not represented by any counsel and learned Magistrate has also opined in his judgment that when the Prosecuting Officer was asked by the Court to provide legal aid to the accused and to provide him a counsel then he replied that in the Magisterial Court there is no mechanism to provide a counsel to the accused. Learned Magistrate has cited the judgment of Hon'ble Apex Court rendered in the case of Sheela vs. State of Maharastra, ALR 1983 SC 378 in which the Apex Court has specifically held that an accused who is in jail and is not competent to engage a lawyer due to his poverty or any other reasons then he should be provided a counsel at the expenses of the State otherwise the trial of the accused will be illegal and improper. In this judgment Hon'ble Apex Court had also elaborated the scope of Article 39-A of the Constitution.
Hon'ble Apex Court in the case of Rajoo @ Ramakant vs. State of Madhya Pradesh, Criminal Appeal No. 140 of 2008, decided on 09.08.2012 has also held that if no legal aid was provided to an accused/appellant in an appeal and if the High Court has not enquired from the accused whether he required legal assistance and if he says yes then it should have been provided to him at State expense and if such a legal obligation was not followed by the High Court then Hon'ble Apex Court held that it would be appropriate that the case ought to be reheard by High Court after providing an opportunity to the accused of obtaining legal representation and the appeal was disposed by setting aside the judgment and order passed by the High Court and records were remitted back to the High Court for a fresh hearing.
In the present case, it transpires from perusal of the judgment that the accused was not provided legal aid as was his constitutional right and due hearing was not provided to the accused as emphasized in the Indian Constitution and guaranteed by Article 21 of the Indian Constitution.
Considering the facts and circumstances of the case as the matter is of the year 1985 and if this Court directs for retrial of the accused then it is quite possible that all the witnesses might have died and it will be futile exercise.
Considering the facts and circumstances of the case, this Court thinks it proper to dismiss the said appeal against the accused as retrial of the accused would not be possible at this juncture after a lapse of 37 years since incident happened.
With the aforesaid observation, this appeal is disposed of.
Order Date :- 28.9.2021 AU