Gujarat High Court
Vedva Vaghari Ramesh Ramabhai vs State Of Gujarat on 8 March, 1994
Equivalent citations: (1994)1GLR901
JUDGMENT S.D. Dave, J.
1. In this Conviction Appeal instead of concerning with the merits of the case, I feel, I am concerned with a technical off-shoot. The question before me is in respect of the real intent and spirit of Article 21 of the Constitution of India and the provisions contained under Section 304 of the Criminal Procedure Code, together with the provisions contained under Paragraph 125 of the Criminal Manual.
2. The appellant accused came to be prosecuted for the alleged commission of the offence punishable under Sees. 376 and 502 of Indian Penal Code on the accusation that on 7-6-1991 at village Bhilwada under Palitana taluka of Bhavnagar district, the appellant accused ravished the minor prosecutrix against her will and without consent. The proceedings have resulted in the judgment of conviction and sentence, under which the appellant accused is sentenced to the R.I. for seven years and a fine of Rs. 1000/-, in default to the R.I. of six months for the offence punishable under Section 376 of Indian Penal Code. So far as the offence under Section 506(2) of Indian Penal Code is concerned the appellant accused has been sentenced to the R.I. of two years and to a fine of Rs. 500/-in default to the S.I. for 3 months. The substantial sentences have been ordered to run concurrently.
3. As pointed out earlier, I am concerned with the technical flaw in the proceedings before the learned Addl. Sessions Judge, Bhavnagar who has conducted the Sessions Case against the accused and ultimately found him guilty for the said offences. The learned Counsel Mr. Yogesh Mankad appearing on behalf of the appellant would urge that, under the provisions contained under Article 21 of the Constitution of India and under Section 304 of the Code of Criminal Procedure, 1974 and Criminal Manual, both the learned Committal Magistrate and learned Sessions Judge were required to ascertain as to whether it was possible for the appellant accused to engage a lawyer to defend him in the case, and that if not done, the technical flaw would result into the violation of the Constitutional guarantee provided to the appellant accused under Article 21 of the Constitution of India. The learned Counsel would also urge that, in the same way the statutory provisions contained under Section 304 of Criminal Procedure Code would stand violated along with the provisions contained under the Criminal Manual.
4. When the R & P of the case is perused, it appears very clearly that the learned trial Magistrate was conscious of his obligations and duties under the above said provisions, and therefore, a clear ascertainment was made before the orders of committal were pronounced. It was inquired of the appellant-accused as to whether in the Sessions Case against him, before the Sessions Court, would he be able to engage a lawyer for his defence or would he like to have his defence arranged at the cost of the Government. To such a particular query made by the learned Committal Magistrate, the appellant accused had stated in no uncertain terms that, he would engage a lawyer of his own choice by making necessary arrangements. Any how, this does not appear to have happened when the Sessions trial against the appellant accused had commenced before the learned Sessions Judge. The case sheet would go to show that the name of a learned Advocate, namely Mr. D.S. Trivedi appears to have been shown in the case sheet, as the Advocate or the lawyer who would defend the case of the appellant accused. Any how, a further verification of the R & P would reveal that no such Vakilatnama exist on the record. The evidence recorded by the learned Additional Sessions Judge also would go to show that there was no lawyer to defend the case of the appellant accused. In background of this, the contention being raised by the learned Counsel for the appellant, that at the Sessions trial stage the above said formality of ascertaining as to whether the appellant accused shall engage a lawyer or would he require the services of the lawyer at the cost of the Government to defend his case was not completed. On a careful verification of the R & P before the Court, with the assistance of the learned Counsel for the appellant and the learned A.P.P. Ms. Valikarimwala, this factual position is established. It is clear that, though the name of Mr. D.S. Trivedi appears to be in the case sheet on page 1, in fact no such Vakilatnama was filed. In the same way, the learned Addl. Sessions Judge who had framed the charge and had recorded the plea of the appellant accused had also not inquired from him as to whether he would be able to arrange for his own defence or would he like to have the services of a lawyer or an Advocate to defend his case at the Government cost. I shall, therefore, have to proceed on the basis of this factual background.
5. The learned Counsel for the appellant would firstly place reliance upon the provisions contained under Article 21 of the Constitution of India, which provides that, no person shall be deprived of his life or personal liberty, except according to the procedure established by law. This negative covenant to be found in Article 21 of the Constitution of India would postulate that before the liberty of a citizen is taken away, there shall be the compliance of the procedure established under the law.
6. The question would be as to what would be the requirement of law in such a case and in such a factual background. The search shall take me to provisions contained under Section 304 of the Code of Criminal Procedure, 1973. Section 304(1) reads thus:
Where, in a trial before the Court of Sessions, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
7. A reading of the above said Article and the relevant provisions contained under Section 304 of Code of 1973, would make it clear that at the trial before the Court of Sessions, when it appears to the Court that the accused had not sufficient means to engage a pleader, the Court shall have to assign a pleader for defence of the accused at the expense of the State. Thus, the duty cast upon the Court is to provide the services of a pleader to the accused, where it appears that the accused had no sufficient means to engage a pleader. In view of these provisions contained under Article 21 and Section 304 of the Code of 1973, there comes a contention from the learned A.P.P. Ms. Valikarimwala that, the appellant accused had already stated before the learned Committal Magistrate that, he would not require the service of a lawyer to be engaged at the expense of the State, and-there fore, the learned Addl. Sessions Judge was not under any obligation whatsoever to once again undergo the very same exercise. Leaving aside the consideration of the said contention of the learned A.P.P. for the moment the reference requires to be made to the provisions contained under Paragraph 125 of the Criminal Manual. This Paragraph clearly appears to have been inserted with a view to secure the consonance with the provision contained under Section 304(1) of the Code of 1973. Paragraph 125 of the Criminal Manual may be produced thus:
Section 304, Code of Criminal Procedure, 1973, provides for legal aid to accused who is unrepresented in trial before Court of Sessions and who has no sufficient means to engage pleader. The expenses are to be borne by the State for that. The rules for the purpose should be properly followed by the concerned Courts.
8. The said provision would go to show that when an accused is unrepresented in a trial before the Court of Sessions and who has no sufficient means to arrange for a pleader, the expenses are to be borne by the State and services of a lawyer or a pleader or an advocate is to be made available to the accused. It requires to be noticed pertinently that, the guidance given by the said Paragraph 125 of the Criminal Manual in terms pertains to a trial before a Court of Sessions.
9. Section 304(2) of the Code enables the High Court to frame the Rules in the above said respect with the prior approval of the State Government. It appears that, in exercise of such powers of the High Court of Gujarat has framed the Rules with the previous approval of the Government of Gujarat. A reference to said Rules would go to show that, firstly the task of the Courts before which the accused persons stand their trial. So far as the committal proceedings are concerned. Rule 3(iii)(a) would go to show that same procedure is applicable to the committal proceedings also and the Committing Magistrate has to ascertain whether the accused has or had not sufficient means to engage a pleader for his defence at his cost. A conjoint reading of Article 21 of the Constitution of India and the provisions contained in Section 304 of the Code of 1973 and para 125 of the Criminal Manual and the Rules which are known as the Gujarat Legal Aid to the Accused Expenses Rules, 1976, it cannot be urged that such a procedural formality is not required to be undergone by the Sessions Court, when the accused had stated before the Committing Magistrate that, he would make his arrangement for his defence and that, he would require the legal assistance at the cost of the State. On the contrary, it is clear that, in Sessions Case the trial commences not at the committal level but at the level when the charge is framed and the plea of the accused is being recorded by the Sessions Court. To argue or to accept that such a formality is not required to be undergone at the Sessions trial level would run counter to what has been commanded by the Constitution of India, the Code of Criminal Procedure, 1973 and the relevant provisions in the Criminal Manual.
10. The learned Counsel in support of the above said contention would firstly place reliance upon the Supreme Court pronouncement in case of Khatri and Ors. v. State of Bihar and Ors. AIR 1981 SC 928. This pronouncement of the Supreme Court takes into consideration the provisions contained under Article 21 and 39A of the Constitution of India and says that, the Constitutional obligation of the State to provide free legal services to the accused by way of a right also arises when the accused is first produced before the Magistrate. This pronouncement also carves out the duties of the Magistrates and the Sessions Judges in this respect. Needless it is to say that the provisions contained under Section 304 of the Code of 1973 are also taken into consideration. The Supreme Court pronouncement emphasis the legal position thus:
It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to supply for bail and obtain his release as also to resist remand to Police or Jail Custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a Constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time.
11. Thus, what has been stated as above by the Supreme Court encompasses the case of the accused not only at the stage of trial but also at the stags when he is first produced before the Magistrate as also when he is remanded from time to time.
12. Paragraph 5 of the Supreme Court pronouncement on page 931 makes the position explicit. The observations of the Supreme Court under the said paragraph show that right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. The Supreme court pronouncement, therefore, does not speak of the statutory obligation on -the part of the Magistrate only, but speaks of such an obligation when the accused is being produced before the Sessions Judge. The matter does not rest here. The Supreme Court pronouncement directs the Magistrates and the Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indulgence that he is entitled to free legal service at the cost of the State. This can be best emphasised by extracting the relevant observations of the Supreme Court occurring in paragraph 5, as under:
We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State.
13. Learned Counsel for the appellant would also place reliance upon the Supreme Court pronouncement in Suk Das and Anr. v. Union of Territory of Arunachal Pradesh AIR 1985 SC 991, with a view to further butress his submission before this Court. This pronouncement would point out that a person accused of offence bringing jeopardy to his life or personal liberty is entitled to the free legal aid and this would not depend on his making any application, but the Magistrate or Judge concerned is obliged to inform the accused of his right to obtain free legal aid. This Supreme Court pronouncement goes to the extent of saying that, conviction reached without giving such information is vitiated. It is indeed true that the said case was in service parlance and the question was as to whether the appellant petitioner could have been said to have been convicted in accordance with law with a view to examine as to whether the departmental proceedings could successfully be based upon a conviction resulting out of the proceedings in which such an obligation was not performed by the Judge concerned. The concluding portion of paragraph 6 of this decision would go to show that, in the view of the Supreme Court, not performing this duty by a Magistrate or by a Judge would amount to a clear violation of the fundamental right of the accused under Article 21 and the trial must accordingly held to be vitiated on account of the fatal constitutional infirmity. In the view of the Supreme Court, the conviction and sentence recorded against the accused were required to be set aside. This decision rendered by the Supreme Court, therefore, would clearly go to support the contention raised by the learned Counsel for the appellant before this Court, that, the learned Addl. Sessions Judge was obliged to inform the accused regarding his choice to obtain free legal aid and if that is not done, it would result into a clear violation of the fundamental right of the appellant, and that, on that count the conviction and sentence recorded against him would get vitiated and they would be required to be set aside.
13.1 The learned Counsel for the appellant would also place reliance on Rajasthan High Court pronouncement in Jagmalram and Ors. v. State of Rajasthan 1982 Cri.LJ 2314. This decision of the Rajasthan High Court speaks of the right of the accused to be represented by lawyer of his choice even in case of spot trials. The revision petitions came to be allowed and the judgments convicting each of the 3 accused petitioners and the sentence awarded to all of them came to be set aside. The case came to be remanded back to the Magistrate with a direction to restore them to their original numbers and then to try them afresh, in accordance with law in light of the observations made earlier. This decision pressed in service by the learned Counsel for the appellant would undoubtedly go to strengthen his submission before this Court.
14. Thus, on a compactus of the legal position emanating from the guarantees under Article 21 of the Constitution of India, Section 304 of the Code of Criminal Procedure, 1973, Criminal Manual and the above said pronouncement of the Supreme Court and the Rajasthan High Court, it is clear that, even though, upon an inquiry by the learned Committal Magistrate the appellant accused had stated that he would not require the legal assistance at the cost of the State, the very same exercise was once again required to be done by the learned Sessions Judge, before whom the trial had commenced and the appellant accused was put to trial. This undoubtedly having not been done, there appears to be a clear violation of the letter and spirit of Article 21 of the Constitution of India and Section 304 of Criminal Procedure Code and the relevant paragraphs of the Criminal Manual. On the basis of the above said, it must be accepted that, the trial has been vitiated and therefore the judgment of conviction and sentence cannot stand any longer.
15. The next question which would arise for consideration is in respect of the future course of action to be adopted. The only course which appears to open to this Court is to set aside the judgment of conviction and sentence pronounced by the Court below and to remand the matter to the Court below with a direction for a fresh trial. The appeal is, therefore, allowed, and the judgment of conviction and sentence under appeal is hereby quashed and set aside. The Sessions Case against the accused is hereby remanded to the Sessions Court at Bhavnagar for a fresh trial with a direction that the same shall be taken up by the learned Sessions Judge himself, and that the trial shall commence from the stage of the recording of the plea of the appellant accused. At that time, needless it is to emphasis that the above said statutory obligation shall be discharged by the learned Sessions Judge, by making the necessary inquiry as to whether the appellant accused would like to have the service of a lawyer of his choice, or would he like to have the legal services at the cost of the State. Obvious it is that if the appellant accused has no selection of a lawyer of his choice at his cost the needful shall be done to ensure that he gets such services for his defence at the cost of the State.
16. The appellant/accused is behind the bars right from the beginning, as no bail was prayed for during the trial and the bail petition came to be refused during the pendency of the appeal before this Court. Naturally, in view of this situation, if the appellant/accused is once again convicted and is sentenced to any term of imprisonment, there shall be a set off for all the days, which the appellant/accused was behind the bars before, during and after the trial. It would be appropriate to request the learned Sessions Judge to take up for himself, the Sessions Case against the appellant/accused and to decide it according to law and on merits, within a period of four months from the date of receipt of the writ of these orders. If per chance, despite the best efforts the above said result is not achieved, it shall be open for the appellant accused to move the Sessions Court at Bhavnagar for bail, and if such an application emanates from the appellant/accused, the same shall be decided by the learned Sessions Judge on merits and according to law, after affording a reasonable opportunity of being heard to the State also.
The Registry of this Court is directed to send the R & P to the Sessions Court at Bhavnagar, along with the writ.