Karnataka High Court
Anil Balagar @ Anil vs The State Of Karnataka on 1 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1285/2018
C/W.
CRIMINAL R.C.No.5/2018
IN CRIMINAL APPEAL NO.1285/2018:
BETWEEN:
Anil Balagar @ Anil
S/o Basanna Balagar
Aged about 36 years
R/at No.32/1,
Opp: Sharada Sevashrama
Virabhadranagar, BSK II Stage
Bengaluru-560 085.
... Appellant
(By Sri B.S. Prasad, Advocate)
AND:
The State of Karnataka
by Girinagara Police Station
Bangalore-560 085.
... Respondent
(By Sri Chandramouli H.S., SPP)
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This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the conviction
and sentence dated 28.04.2018 passed by the
LIII Additional City Civil and Sessions Judge,
Bengaluru in Spl.C.C.No.362/2017 convicting the
appellant/accused for the offences punishable under
Sections 363, 302, 376 r/w Section 5(m)(1)(r) r/w
Section 6 of POCSO Act and Section 201 of Indian
Penal Code.
IN CRIMINAL R.C. NO.5/2018:
BETWEEN:
The LIII Additional City Civil and
Sessions Judge,
Bengaluru City.
... Appellant
(By Sri Chandramouli H.S., SPP)
AND:
Sri Anil Balagar @ Anil
S/o Basanna Balagar
Aged about 35 years
Residing at No.32/1
Opp: Sharada Sevashrama
Virabhadranagar, BSK II Stage
Bengaluru-560 085.
... Respondent
(By Sri B.S. Prasad, Advocate)
This Criminal Referred Case is Registered as
required under Section 366(1) of Cr.P.C. for
confirmation of death sentence awarded to accused
Anil Balagar @ Anil by judgment and sentence
dated 28.04.2018 passed in Spl.C.C.No.362/2017
on the file of LIII Additional City Civil and Sessions
Judge, Bengaluru for the offences punishable under
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Sections 363, 366-A, 376(2) (1) 376(m), 302, 201
of IPC and also under Section 5(m), 5(i)(r) r/w
Section 6 of POCSO Act, 2012.
This Criminal Appeal and Criminal R.C. coming
on for admission this day, BUDIHAL R.B. J.,
delivered the following:-
JUDGMENT
Criminal Appeal No.1285/2018 is preferred by the accused, being aggrieved by the judgment and order of conviction and sentence dated 28.4.2018 passed by the LIII Additional City Civil and Sessions Judge, Bangalore, in Special CC.No.362/2017, wherein the appellant-accused has been convicted for the offences punishable under Sections 363, 302, 376, 201 of IPC and Section 5(m)(l)(r) r/w. Section 6 of the POCSO Act, 2012 and accordingly he has been sentenced to capital punishment for the offence punishable under Section 302 of IPC. Challenging the legality and correctness of the same, the appellant-accused is before this Court on the grounds urged in the appeal memo at Ground Nos.1 to 25.
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2. Brief facts of the case of the prosecution as per the complaint averments at Ex.P1 that one Shivakumar, S/o.late Kempegowda lodged the complaint for missing of his daughter stating that he is residing in the address mentioned in the complaint and is working in Srinidhi Bar to eke out his livelihood. He married seven years' back and having daughter, aged 6 years (victim in this case). On 20.4.2017 at 6.15 p.m., the daughter of the complainant was playing in front of the house and all of a sudden she was missing, they made search at all the places and they have also enquired with the relatives, even then she was not traced. Therefore, he requested the police to trace his daughter. The facial features and other particulars regarding the dress she worn and the languages known to her were also given in the said complaint. On the basis of the same, a case in Crime No.109/2017 came to be registered by Girinagar -5- police for the offence punishable under Section 363 of IPC and subsequently during the course of investigation, the Investigating Officer filed the charge sheet against the accused for the offences punishable under Sections 363, 366A, 376(2)(i) and 376M, 302, 201 of IPC and Section 5(m)(l)(r) r/w. Section 6 of the POCSO Act, 2012. After hearing both sides, charges were prepared as against the accused and when the charges were read over and explained to the accused he pleaded not guilty and claimed to be tried and accordingly his plea was also recorded and the matter was set down for trial.
3. In support of its case, the prosecution in all has examined 23 witnesses and got marked 40 Exhibits and 13 Material Objects. Thereafter the accused has been examined under Section 313 of Cr.P.C. and incriminating material was read over and explained to him. Whatever the answers given -6- to the said questionnaire were recorded in the said statement.
4. On the side of the defence, neither witnesses were examined nor any document was got marked. After hearing the arguments on the side of the prosecution and as the accused told that there is nothing to submit on behalf of him, the learned Special Judge after considering the evidence placed on record both oral and documentary convicted the appellant-accused for the aforesaid charges and imposed capital punishment for the offence punishable under Section 302 of IPC and in so far as other offences are concerned, the sentence as mentioned in the order of sentence of the trial Court has been imposed.
5. Criminal Referred Case is also registered after obtaining the order of the Hon'ble Chief Justice and it is in Criminal R.C.No.5/2018. -7-
6. We heard the learned counsel Sri Prasad B.S., appearing for the accused-appellant in Criminal Appeal No.1285/2018 and the learned SPP Sri Chandramouli H.S., for the State.
7. The learned SPP fairly made the submission that though he is representing the prosecution, looking to the judgment and order passed by the trial Court, all the witnesses who have been examined on the side of the prosecution were not at all cross-examined by the defence. It is his submission that there are serious charges framed against the accused for the offences punishable under Sections 302, 376, etc. and when that being the case, it was the duty of the trial Court to appoint a competent advocate as the standing counsel/amicus curiae to represent the accused and also to assist the Court in conducting the trial of the case. He made the submission that conducting the cross-examination of the prosecution witnesses by -8- the defence is an important right of the accused person. In spite of the same, the trial Court has not at all considered these things. Counsel who was on record though was present on two or three occasions, he has not at all cross-examined the prosecution witnesses and at a later point of time, he filed a memo seeking retirement from the case. Learned SPP made the submission that looking to the impugned judgment and order, it clearly goes to show that even the memo seeking retirement from the case filed by the counsel for the accused also came to be rejected by the trial Court. In spite of the same, the learned counsel has not cross- examined the prosecution witnesses and the learned Special Judge proceeded with the matter. It is also his submission that when the witnesses are not at all cross-examined, it cannot be said that it is a fair trial conducted by the trial Court and convicting the accused based upon the said evidence, without cross-examination, is not -9- justifiable and not sustainable in law. Therefore, he made the submission that opportunity is to be given to the accused by providing the legal assistance by a competent advocate to conduct the cross- examination on behalf of the defence in the case. Hence, he lastly made the submission that in view of these things, it is proper to remand the matter to the concerned trial Court by rejecting the referred case.
8. In support of his contention, the learned SPP has relied upon the following decisions:-
1. (2013) 5 SCC 741 - Natasha Singh Vs. Central Bureau of Investigation (State).
2. (2012)7 SCC 56 - P.Sanjeeva Rao Vs. State of Andhra Pradesh.
3. AIR 2012 SC 750- Mohd.Hussain @ Julfikar Ali Vs. State (Govt. of NCT), Delhi.
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4. Criminal Appeal No.673/2014, disposed of on 6.7.2018 -
Chandrakanth S. Sharma & others Vs. State of Karnataka.
9. Relying upon the aforesaid decisions and the principle enunciated in the said decisions, learned SPP prayed for allowing the appeal of the accused and consequently to dispose of Criminal R.C.No.5/2018.
10. Per contra, the learned counsel for the accused-appellant in Criminal Appeal No.1285/2018 made the submission that there is no cross- examination of any of the prosecution witnesses and as submitted by the learned SPP it amounts to denial of opportunity of cross-examination and it is not amounting as fair trial. In this connection, he also relied upon a decision of the Hon'ble Apex Court in the case of Surendra Koli Vs. State of Uttar Pradesh and others, reported in (2014)16 SCC 718. On these grounds, he prayed for
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allowing the appeal and to set aside the impugned judgment and order.
11. We have perused the grounds urged in the appeal memo, impugned judgment and order convicting the appellant-accused for the aforesaid offences, so also the oral evidence of the prosecution witnesses PWs.1 to 23, including the Exhibits marked. We have also considered the oral submissions made at the Bar and the decisions relied upon by both the parties.
12. It is no doubt true that, fair trial is the main object of criminal procedure and it is duty of the Court to ensure that such fairness is not hampered or threatened in any manner. Under no circumstances can a person's right to fair trial be jeopardized. This proposition of law has been laid down in the case of Natasha Singh Vs. Central Bureau of Investigation (State), (cited supra),
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wherein at paragraph-16 it has been observed as under:-
"16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. [Vide Talab Haji
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Hussain v. Madhukar Purshottam Mondkar, Zahira Habibulla H.Sheikh v. State of Gujarat, Zahira Habibullah Sheikh(5) v. State of Gujarat, Kalyani Baskar v. M.S.Sampoornam, Vijay Kumar v. State of U.P. and Sudevanand v. State].
13. Denial of opportunity to recall the witnesses for cross-examination would amount to condemning the accused without giving him an opportunity to challenge the correctness of the version and the credibility of the witnesses. This proposition of law has been laid down by the Hon'ble Apex Court in the case of P.Sanjeeva Rao Vs. State of Andhra Pradesh (cited supra), wherein at paragraph-18 it has been observed as under:-
"18. Denial of an opportunity to recall the witnesses for cross-
examination would amount to condemning the appellant without giving him the opportunity to
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challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-
examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial."
14. The right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trial. The accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial. It is the duty of the Court to see that he is denied no necessary incident of a fair trial. 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
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accused of a crime is entitled to a counsel which may be necessary for his defence. This proposition of law has been laid down in the case of Mohd.Hussain @ Julfikar Ali Vs. State (Govt. of NCT), Delhi, (cited supra), wherein at paragraphs- 17, 20 and 21, the Hon'ble Apex Court has observed as under:-
"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 and impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. The Cr.P.C.
provides that in all criminal
prosecutions, the accused has a
right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage
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counsel, to appoint a counsel for him at the expenses of the State. Howesoever 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 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
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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 Cr.P.C.
xxx xxx xxx xxx xxx xxx
20. In view of the above discussion, I cannot sustain the
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judgments impugned and they must be reversed and the matter is to be remanded to the Trial Court with a specific direction that the Trial Court would assist the accused by employing a State counsel before the commencement of the trial till its conclusion, if the accused is unable to employ a counsel of his own choice. Since I am remanding the matter for fresh disposal, I clarify that I have not expressed any opinion regarding the merits of the case.
21. In view of the above, I allow the appeal and set aside the conviction and sentence imposed by the Additional Sessions Judge in Sessions Case No.122 of 1998 dated 03.11.2004 and the Judgment and Order passed by the High Court in Crl.Appeal No.41 of 2005 dated 04.08.2006 and remand the case to the Trial Court for fresh disposal in accordance with law and in the light of the observations made by me as
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above, Since the incident is of the year 1997, I direct the Trial Court to conclude the trial as expeditiously as possible at any rate within an outer limit of three months from the date of communication of this order and report the same to this Court.
15. The learned trial Judge while assigning the defence counsel, especially in cases where legal aid is sought for by the accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the sessions trial. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Surendra Koli Vs. State of Uttar Pradesh & others (cited supra), wherein at paragraph-11, it has been observed as under:-
"11. In conclusion, we would only observe that the learned District Judges while assigning the defence counsel, especially in cases where legal aid is sought for by the
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accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the sessions trial. Such assignment of cases would not only better preserve the right to legal representation of the accused persons but also serve in the ends of ensuring efficient trial proceedings."
16. This Court in Criminal Appeal No.673/2014, disposed of on 6.7.2018 has considered the above legal aspect by referring to various decisions of the Hon'ble Apex Court has also observed that one of the components of fair procedure in the administration of criminal justice is that the accused has the opportunity of making his defence by a legal practitioner of his choice. This is his constitutional right guaranteed under Article 22 of the Constitution of India. In order to give effect to this right, it has been embodied in Directive Principles of State Policy under Article 39A of the Constitution of India, which says that the State
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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 by reason of economic or other disabilities. The said right has also been statutorily accepted and incorporated under Section 304 of Cr.P.C and the object of the Legal Service Authorities Act, 1987.
17. To give a legal assistance is a constitutional mandate under Article 21 r/w. Article 39A of the Constitution of India, the right to legal assistance is reasonable, fair, just and implicit in Article 21 of the Constitution of India. Even it is well settled principle that Court cannot override the principle of "Audi Alteram Partem". If there is no proper and effective representation, it violates the above said principles when there was violation of fundamental principles of judicial procedure on account of breach of the mandate of the
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Constitution of India, denial of opportunity to the accused to cross-examine the prosecution witnesses amounts to denial of opportunity. In that light, question of going into the merits of the appeal is out of the way and the only course open to this Court is to send back the case to the trial Court to decide the matter afresh.
18. At this juncture we place it on record that appointment of legal practitioner to assist the accused is not a mere formality. It must take into consideration of the fact that the legal practitioner appointed to represent the accused must be competent and there must be an effective representation especially when the offences alleged are serious and accused is punishable with capital punishment or life imprisonment. If there is no such assistance, it violates the constitutional mandate.
19. As held by the Hon'ble Apex Court as well as this Court in the decisions relied upon by the
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parties, in so far as providing of a free legal aid and competent legal assistance is concerned, while interpreting Article 21 of the Constitution of India, it is the duty of the Court to see that the accused is represented effectively during the course of the trial.
20. Looking to the entire material on record and as rightly submitted by the learned SPP, we are of the considered opinion that it is nothing but denial of fair opportunity to the accused to conduct the proceedings on his behalf. Therefore, the proceedings conducted by the trial Court cannot be held to be a fair trial in this case. Hence, the matter requires to be remanded back to the trial Court for fresh consideration with a direction to the trial Court to appoint a competent advocate having expertise in the criminal trials so as to make an effective representation on behalf of the accused in the trial proceedings and give an opportunity to the
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accused to make necessary application with the help of such advocate for recalling the prosecution witnesses for the purpose of their cross- examination. If the matter is remanded to the trial Court for the aforesaid opportunity to the accused person, it would meet the ends of justice. Accordingly, we pass the following:-
Criminal Appeal No.1285/2018 is allowed.
Impugned judgment and order of conviction and sentence dated 28.4.2018 passed by the LIII Additional City Civil and Sessions Judge, Bangalore, in Special CC.No.362/2017 is set aside. The matter is remanded back to the trial Court with a direction to the trial Court to provide legal assistance to the accused by appointing a competent advocate having expertise in conducting the criminal trials.
As the crime is of the year 2017, the counsel who is going to be appointed to represent the
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accused shall co-operate with the prosecution for early disposal of the case.
Consequently, Criminal R.C.No.5/2018 is disposed of as having become infructuous as Criminal Appeal No.1285/2018 is allowed and the impugned judgment and order is set aside.
Sd/-
JUDGE Sd/-
JUDGE *ck/-