Delhi District Court
Bhoop Singh vs State on 20 April, 2019
IN THE COURT OF DR. NEERA BHARIHOKE,
ADDITIONAL SESSIONS JUDGE06, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No.50/2017
IN THE MATTER OF:
Bhoop Singh
S/o Shri Roshan Singh
R/o Jhuggi No.A64,
Gola Kuan, Tekhand,
New Delhi . . . . Appellant
Versus
State . . . . Respondent
Date of Institution : 14.05.2018
Date of Arguments : 18.04.2019
Date of Judgment : 20.04.2019
JUDGMENT
1. The present appeal under section 374 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") is directed against the impugned judgment dated 13.04.2018 and order on the point of sentence dated 18.04.2018 passed by learned MM06, South East District, Saket Courts, New Delhi whereby the appellant has been held guilty u/s 279 and 304A IPC and learned trial court has sentenced him to undergo simple imprisonment for a period of one month for commission of offence under section 279 IPC and to CA No.240/18 Page 1 of 14 undergo simple imprisonment for 2 years for commission of offence under section 304A IPC. In addition, the appellant has been directed to pay a fine of Rs.5000/. In default of fine, the appellant has been directed to undergo simple imprisonment for seven days in the case titled as State versus Bhoop Singh, FIR no. 902/98, PS Kalkaji.
2. Without adverting to the merits and other grounds of appeal preferred by the appellant, it is noticed that none of the witnesses of the prosecution has been cross examined by learned counsel for appellant/accused. Learned trial court has wrongly observed in para 11 of the impugned judgment dated 13.04.2018 that none of the prosecution witnesses was crossexamined by or on behalf of the accused (appellant herein) despite opportunity given. Learned trial court has wrongly observed that appellant/accused was duly represented by an advocate throughout the trial and that the presence of his counsel is reflected in the various order sheets. Evidence of PW1 was recorded on 19.11.2003 and the order sheet of the said date does not record presence of his counsel. Similarly PW2 to PW7 was examined on 19.01.2005, when again the presence of learned counsel for accused is not recorded. Evidence of PW8 was recorded on 18.08.2005 which was again recorded in absence of learned counsel for accused. Similar is the position in respect of evidence of PW9 and PW10 which were recorded on the same date. Evidence of PW11 and PW12 was recorded on 18.09.2008, the accused again not being assisted by any counsel. Evidence of PW13 and PW14 was recorded on 17.03.2016 and the order sheet of CA No.240/18 Page 2 of 14 17.03.2016 also does not record presence of counsel for accused.
3. In para number 11 of the impugned judgment dated 13.04.2018, learned trial court has observed that subsequently learned defence counsel had moved an application under section 311 of Cr.P.C. seeking recall of PW1, Ashwani Kumar, PW11, HC Sripal and PW13, HC Dinesh Rai. The said application was dismissed by learned trial court vide order dated 07.03.2018 and the case was adjourned to 20.03.2018 for recording statement of appellant/ accused under section 313 Cr.P.C. Learned trial court has observed that the said order was never challenged and has attained finality. I concur with the said observations made by learned trial court in the impugned judgment dated 13.04.2018.
4. However the recording of evidence of the prosecution witnesses in absence of learned counsel for accused and its impact on trial has been dealt at length in the matter titled S.Yuvaraj vs State Rep. Decided on 1 October, 2013 while deciding Crl.O.P.No.7142 of 2013 and M.P.Nos.1,2 & 3 of 2013 by Hon'ble High Court of Madras. The relevant part is reproduced here in:
"16. 'Hearing' a person, who is accused of having committed certain offences should not be a 'mere hearing'. Hearing him without the assistance of a legally trained person is like hearing a deaf and dumb person. It will not be giving him a 'reasonable opportunity'. It will be an 'empty formality'. It will be negation of principles of CA No.240/18 Page 3 of 14 natural justice. Thus, Article 22(1) Constitution of India provides right to accused persons to be defended by a lawyer of their choice.
17. Assuring their constitutional right to legal representation enshrined in Article 22(1), Section 303Cr.P.C. has been inserted in the New Code of Criminal Procedure,1973. It provides for right of accused to be defended by a lawyer of his choice. Article 22(1) r/w Article 21 and Section 303 Cr.P.C. reiterates a facet of human right of the accused persons. It is really a matter of 'access to justice'.
18. Such right cannot be denied nor deprived due to financial constraints. Thus, a duty is cast on the State to provide legal assistance, legal aid to the needy. Section 304 Cr.P.C. is for providing legal aid to persons more particularly who are facing trial in a Sessions Court. This has also been strengthened by the introduction of Article 39A in the Constitution through the 42 Amendment.
19. It is pertinent here to mention that in 1981, in Khatri (II) case relating to the infamous Bhalpur blinding of prisoners in certain Bihar jail, Hon'ble Apex Court directed all the Magistrates and the Sessions Judges to CA No.240/18 Page 4 of 14 inform the accused persons of their constitutional right to be defended by a lawyer. But, in practice, this mandate has been observed much in breach than observance.
20. In INDAR NARAIN v. THE STATE [AIR 1952 PUNJAB 53], prosecution witnesses were produced, since the defence counsel suddenly took ill, he could not be present in Court, an adjournment sought for by the accused was rejected and the Court examined the witnesses, as the prosecution produced the witnesses.
21. In this connection, a learned Judge of the Punjab High Court observed as under:
8.........The reason given by the Magistrate that if he had allowed this petition, the State would have incurred a good deal of unnecessary expenses in so far as their witnesses were present, loses sight of the constitutional right of a citizen. In all civilized countries, wherever English system of Jurisprudence prevails, Courts have always tried to give, every kind of facility to an accused to defend himself.
Merely because, there were certain witnesses for the prosecution present, does not seem to me, to be a sufficient reason, why the case CA No.240/18 Page 5 of 14 should not have been postponed and the prayer of the petitioner granted, if that was necessary in the interests of justice as I think that in this case it was.
22. In RAJ KISHORE v. STATE [1969 CRL.L.J.860], under similar circumstances, the Calcutta High Court held as under:
9. ...... We must say at once, that we do not appreciate that reason, to be sufficient or proper for insisting that the trial, which was one, on a charge of murder punishable with death, should proceed in the absence of the defence lawyer, who has suddenly fallen ill. Adjourning a sessions trial is a serious matter indeed, but absence of defence lawyer, for the reason of sudden illness, is no less. In the present trial, it was much more important that the person on trial, facing a capital charge, should have the assistance of a lawyer, who had the opportunity to prepare the brief, for proper defence by effective cross examination, that the trouble and cost to which, State would have been subjected, by an adjournment of the trial.
CA No.240/18 Page 6 of 1423. In SAMBHUNATH BHATTACHARJEE v. STATE OF SIKKIM [1980 CRL.L.J.789], the defence counsel was not present, however, six prosecution witnesses were produced, thus, the trial Court examined the witnesses. When this was challenged on the ground that the procedure of fair trial has been violated, the Hon'ble Chief Justice put the legal position as under:
11......... I should not, however, be understood to lay down as a blanket proposition, that adjournment should be granted to the accused, whenever it is prayed for on the ground of the absence of a lawyer of his choice. If in a given case, the Court feels that the absence of the defence lawyer, is wholly unjustified and/or the accused has not taken proper and diligent steps to secure or ensure his presence, an adjournment prayed on the ground of the absence of the lawyer, may be refused. But, by and large, the Court must see that the accused is not denied the right to be defended by a legal practitioner of his choice and is given reasonable opportunities to secure the presence of such lawyer and where, as here, the lawyer chosen by the accused has suddenly fallen ill, which has CA No.240/18 Page 7 of 14 incapacitated him from attending the Court to defend the accused, the Court, should not hesitate to grant adjournment. After all that has been said about speedy disposal of cases and arrears in Courts, one must not forget that, though speed is good and is very much desirable, it is depreciable when it amounts to rash speed and however good, speedy disposal of a case may be, it can never be desired, if it is achieved at the cost of established notions of justice which cannot always be, administered by the hands of the clock.
24. In SUDARSANAN AND OTHERS VS. D.S.P., PONNERI [1978 L.W.(Crl.)419], prosecution witnesses were produced, the defence counsel was not present and the reasons for the same has been given. However, the learned Sessions Judge examined the prosecution witnesses in chief. But, the Court held that it is violative of the constitutional right of the accused guaranteed under Article 22(1)of the Constitution.
25. In SUK DAS v. UT OF ARUNACHAL PRADESH [1986(2) SCC 401] the Hon'ble Apex Court observed as under: CA No.240/18 Page 8 of 14 Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes and tells the Court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused.
26. Recently, our Hon'ble Apex Court, in MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID Vs. STATE OF MAHARASHTRA [MANU/SC/0681/2012], held that the obligation to provide legal assistance to accused persons is very much part of our Criminal Law Procedure.
27. In MOHD.HUSSAIN @ JULFIKAR ALI Vs. STATE CA No.240/18 Page 9 of 14 (GOVT. OF NCT), DELHI [2012 CRI.L.J. 1069], a three Judge Bench of the Hon'ble Apex Court observed as under: 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 later stage, was either to 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 and 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 by 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 CA No.240/18 Page 10 of 14 counsel was so vital and imperative that the failure of the trial Court to make an effective appointments of a counsel was a denial of due process of law. It is equally 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 Code of Criminal Procedure.
28. Thus, it is seen that in view of the constitutional frame work and subsequent statutory promises, trial of a person, who has been accused of having committed certain offences without the assistance of a lawyer or legal aid militates against the constitutional promises made to them.
29. The right to have the assistance of a lawyer, to be defended by a lawyer, becomes very significant and important when the witnesses are examined. The demeanour of the witnesses are required to be noted. It could be either during chief examination, cross examination or reexamination of the witnesses. This has also been emphasised in Section 280 Cr.P.C.
30. During chief examination of the witness, prosecution always tend to load its evidence with leading questions. There may be possibility of even adducing hearsay CA No.240/18 Page 11 of 14 evidence, introduction of irrelevant and inadmissible documents. A trial Judge cannot be either on the side of the prosecution or on the side of the defence. He is a neutral. In such circumstances, it is imperative that a counsel on behalf of the accused/defence shall present/participate in the trial proceedings, note down the demeanour of the witnesses and draw the attention of the Sessions Judge to this aspect, object when prosecution put leading questions to the witnesses, when prosecution adduced hearsay evidence and tried to introduce irrelevant and inadmissible documents in evidence. So, the presence of a defence counsel at the very commencement of the trial as well as till the completion of the trial is very important. It is part of the right of the accused persons under Section 303 Cr.P.C., r/w Article 22(1) and 21 of Constitution and Section 304 Cr.P.C., r/w Article 39A of the Constitution.
31. Now, in view of the Constitutional provisions and the statutory provisions in the New Code of Criminal Procedure 1973 and the survey of the case laws of various High Courts and Hon'ble Apex Court, it is seen that the procedure adopted by the learned Principal Sessions Judge, Erode, on 11.03.2013, examination of the witnesses, of course, in chief, in the absence of his counsel is not a fair procedure and it is in violation of CA No.240/18 Page 12 of 14 right of the accused person."
5. Hon'ble High Court of Madras has dealt at length the need, mandate and significance of accused being represented by a counsel in criminal proceedings and the consequences of violation of the said mandate by dealing with the provisions in the Indian Constitution as well as Cr.P.C. in the cited judgment. The law laid down by various Hon'ble High Courts as well as by Hon'ble Apex Court has also been discussed. The aforesaid cited part of the judgment is self speaking as to why the impugned judgment is not sustainable as the evidence of certain prosecution witnesses has been recorded without following a fair procedure and the same is against law.
6. However learned counsel for appellant submitted that he wishes to crossexamine only PW1, Ashwani Kumar, PW11, HC Sripal and PW13, HC Dinesh Rai.
7. In view of these observations, the matter is remanded to learned trial court by giving a right to the appellant/accused of cross examining PW 1, Ashwani Kumar, PW11, HC Sripal and PW13, HC Dinesh Rai subject to their availability. Not more than one opportunity be granted to the appellant/accused to crossexamine these witnesses. If the opportunity is not so availed by the appellant/accused, the PE shall stand automatically closed in respect of that witness. The impugned judgment dated 13.04.2018 and order on the point of sentence dated 18.04.2018 are set aside.
CA No.240/18 Page 13 of 148. Since the matter is more than 20 years old, learned trial court is directed to expedite the trial of these three witnesses subject to their availability namely PW1, Ashwani Kumar, PW11, HC Sripal and PW13, HC Dinesh Rai and make an endeavour to conclude the trial preferably within a period of one year and pass the judgment within three months of completion of crossexamination of these three witnesses as per the terms and conditions imposed above.
9. In view of these terms, the present appeal is disposed off.
10. The appellant is directed to appear before the learned trial court on 23.04.19 at 2 PM.
11. A true copy of the Judgment be sent alongwith TCR to learned trial court.
12. Appeal file be consigned to record room.
Announced in the open (DR.NEERA BHARIHOKE) court today i.e. 20.04.19 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi Digitally signed by NEERA BHARIHOKE NEERA BHARIHOKE Date:
2019.04.22 11:04:21 +0530 CA No.240/18 Page 14 of 14