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9. I have heard Mr. Ashwani Bharadwaj, Advocate, learned Legal Aid Counsel for the appellant, Mr. Manjit Singh Naryal, learned Additional Advocate General, for the State of Punjab and has meticulously examined the record of the case.

10. Initiating the arguments, learned counsel for the appellant contended that it is a case of denial of fair trial to the appellant. The appellant was not represented by any counsel on the date when all the three witnesses of the prosecution were examined. Learned Special Judge has not informed the appellant of his right to have the legal aid counsel nor he complied with the mandatory provisions of Section 304 Cr.P.C and Article 21 of the Constitution of India. He contended that appellant was charged with the serious offence. It is not believable that he will not choose to test their testimonies by way of cross-examination. Learned trial Judge has mentioned 'Nil opportunity given' as a matter of routine. The entire judgment of the learned trial Court is based on the fact that the testimonies of these witnesses has gone unchallenged.

33. Besides the International Covenants and Declarations and the constitutional guarantees referred to above, Section 303 of the Code of Criminal Procedure gives right to any person accused of an offence before a criminal court to be defended by a pleader of his choice. Section 304 of the Code of Criminal Procedure contemplates legal aid to accused facing charge in a case triable by Court of Sessions at State expense and the same reads as follows:

17. As per the aforesaid ratio of law, the guiding hand of a counsel at every step in the proceeding is needed for the fair trial. The right of a person charged with crime to have the services of a lawyer is fundamental and essential to the fair trial flowing from Article 21, 22 (1), 39 A of the Constitution of India and Section 304 of Cr.P.C.

18. It is a clear case wherein the fair trial has been denied to the appellant. The proceedings of the trial Court shows that the appellant was initially represented by his counsel. But, counsel for the appellant has not appeared from 04.07.2000 to 14.10.2003. Reproduction of all the interim orders i.e. orders dated 04.07.2000, 04.10.2000, 09.01.2001, 03.05.2001, 28.11.2001, 01.04.2002, 09.09.2002, 18.11.2002, 21.02.2003, 28.04.2003, 16.07.2003 and 14.10.2003 will burden the judgment. It is suffice to mention that in all these interim orders only the presence of accused has been marked without his counsel. However, the relevant order dated 04.10.2000 when all the three witnesses were examined is reproduced as under:-

The aforesaid orders shows that on that date the accused- appellant was not represented by any counsel. All the three witnesses of the prosecution, namely PW-1 complainant-Mota Singh, PW-2 Pritam Singh in whose presence it is alleged that the money was paid by the complainant to the appellant and PW-3 Kulwant Singh, who had participated in the Panchayat conveyed to ask the appellant to return the money, have been examined on that date and for all the three witnesses in the cross-examination it is mentioned 'Nil opportunity given'. All the aforesaid three witnesses were the material witnesses of the prosecution. They have not been cross-examined at all. Accused-appellant was not represented by any counsel on that date. There is no material on record to show that the learned Special Judge has complied with Section 304 sub-section 1 Cr.P.C and offered to assign him a lawyer for his defence. For the fair trial of the appellant, it was the incumbent duty of the learned Special Judge either to adjourn the case for the cross-examination of the aforesaid witnesses or to have appoint some counsel as amicus curiae under Section 304 Cr.P.C to cross-examine the aforesaid material witnesses. This lapse has resulted in great prejudice to the appellant and has virtually resulted into failure of justice. In fact, 'Nil opportunity given' appears to have been mentioned in a routine manner in the cross- examination of these witnesses without visualizing the fact that accused- appellant was facing the serious charge under Section 9 of the Act.