Delhi District Court
Trilok Singh vs . State on 22 September, 2012
Trilok Singh Vs. State
CA NO: 08/12
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-04,
DWARKA COURTS, DELHI
CA NO: 08/12
Trilok Singh
S/o Shri Santosh Singh
R/o D-514, J.J.Colony
Inderpuri
New Delhi. .... Appellant
Versus
The State ... Respondent
Date of institution of appeal : 04.08.2012
Date on which judgment reserved : 21.09.2012
Date on which judgment pronounced : 22.09.2012
JUDGMENT
1. Challenge in this appeal is made to the judgment dated 26.05.2012 of the ld.trial court vide which appellant was held guilty u/s 61 of the Punjab Excise Act and order of sentence dated 30.05.2012 vide which appellant was sentenced to simple imprisonment for 2 years and fine of Rs.600/- for offence u/s 61 of the Punjab Excise Act and in default of paying the fine, appellant was further directed to undergo simple CA No: 08/12 1/6 Trilok Singh Vs. State CA NO: 08/12 imprisonment for 15 days.
2. The brief facts which are necessary for disposing of the present appeal are that on 28.04.2004 at about 7.35 p.m.near D Block, Railway Halt, Inderpuri, New Delhi, appellant was found in possession of six bottles of illicit liquor without any permit or licence and accordingly, FIR No. 89/04 at PS Inderpuri was registered against him. After the investigation, accused was charge sheeted for the offence u/s 61 of the Punjab Excise Act.
3. After framing of charges, matter was posted for prosecution evidence. The prosecution has examined four witnesses whose evidence remains unrebutted and unchallenged as there was no cross examination by the appellant. In the light of unrebutted and unchallenged testimony of prosecution witnesses, appellant was found guilty vide the impugned judgment and was sentenced accordingly vide sentence order dated 30.05.2012. Hence, the present appeal.
4. Although in the present appeal, various grounds have been taken by the appellant challenging the impugned judgment and order of sentence but during the course of arguments, counsel for appellant has limited his appeal to the sole ground that appellant was not provided legal aid by the ld.trial court and, therefore, appellant was unable to cross examine the witnesses and therefore, there has been CA No: 08/12 2/6 Trilok Singh Vs. State CA NO: 08/12 violation of natural justice and fair trial. Accordingly, it was prayed that impugned judgment and order of sentence be set aside and appellant be acquitted.
5. Ld.Addl.PP for state has opposed the appeal on the ground that appellant had engaged a counsel before the ld.trial court and if counsel had not appeared at the stage of prosecution evidence then accused cannot take the benefit of non-representation by his counsel. It is further submitted by him that accused has deliberately chosen not to make his counsel appear at the stage of prosecution evidence and this fact is proved by the engagement of counsel by the appellant at the stage of appeal. Accordingly, it was prayed that appeal be dismissed.
6. I have heard the ld.counsel for appellant and Ld.Addl.PP for state and have perused the trial court record.
7. The short question raised by the appellant in the present appeal is whether appellant deserves to be acquitted for the offence u/s 61 of the Punjab Excise Act on the ground that he was not provided the legal assistance by the ld.trial court during the trial of this case. The answer to the question can be found in the latest judgment of the Hon'ble Supreme Court of India reported as Hussain @ Julfikar Ali (Mohd.) Vs. State (Govt.of NCT) Delhi, 2012 VIII AD (SC) 617. It was held by the Hon'ble Supreme Court of India in para 7 of the CA No: 08/12 3/6 Trilok Singh Vs. State CA NO: 08/12 aforesaid judgment as follows:--
"In the present case, not only was the accused denied the assistance of a counsel during the trial but 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 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 CA No: 08/12 4/6 Trilok Singh Vs. State CA NO: 08/12 judicial procedure on account of breach of mandatory provisions of Section 304 Cr.P.C. After carefully going through the entire records of the trial court, I am convinced that the appellant-accused was not provided the assistance of a counsel in a substantial and meaningful sense. To hold and decide otherwise, would be simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to."
8. It was further held by the Hon'ble Supreme Court of India in para 11 that if an accused remains unrepresented by a lawyer then the ld.trial court has a duty to ensure that he is provided with proper legal aid.
9. The Hon'ble Supreme Court of India further held in para 46 that since accused was denied the fair trial by not providing the legal assistance, therefore, matter was remanded back for de novo trial before the ld.trial court.
10.Applying the ratio of the aforesaid case to the present case, it is noted that in the present case although it is true that at the initial stage, appellant had engaged a counsel but at the stage of prosecution evidence, there was no counsel representing the appellant. Therefore, as per Section 304 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), it was the duty of the ld.trial court to have CA No: 08/12 5/6 Trilok Singh Vs. State CA NO: 08/12 provided the legal assistance to the appellant to ensure fair trial. The trial court record reveals that no effort was made by the ld.trial court to provide legal assistance to the appellant and therefore, there was no cross examination on behalf of appellant of prosecution witnesses, in the absence of any counsel on his behalf.
11.In the facts, applying the ratio of judgment of Hussain @ Julfikar Alis (Mohd.)'s case (Supra) to the facts of the present case, I find that in the present case also, appellant has been denied the right of fair trial by not providing legal assistance as mandated by Section 304 Cr.P.C. Hence, the appeal is allowed. Impugned judgment dated 26.05.2012 and sentence order dated 30.05.2012 are accordingly set aside. The matter is remanded back to the ld.trial court for a de novo trial and the ld.trial court is directed to proceed with the trial of appellant from the stage of prosecution evidence. The ld.trial court is further directed to provide legal assistance to the appellant in case, he is unable to engage a counsel of his own choice as mandated by Section 304 Cr.P.C. Appellant to appear before the ld.trial court on 01.10.2012 at 2.00 p.m. Appeal file be consigned to record room.
A copy of judgment alongwith TCR be sent back to the ld.trial court.
Announced in the open court (Vikas Dhull)
Dated: 22.09.2012 ASJ-04/Dwarka Courts
New Delhi
CA No: 08/12 6/6