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Showing contexts for: section 304 crpc in S.Yuvaraj vs State Rep. By on 1 October, 2013Matching Fragments
11. Now, it is seen that the trial was conducted, namely, witnesses were examined in chief, in the absence of the defence counsel. In the circumstances, the question is whether the right of the accused is infringed and whether the procedure adopted by the learned Principal Sessions Judge is fair and whether the trial is vitiated.
12. In this connection, it is relevant to note Article 21,22(1), 39-A of the Constitution of India and Sections 280, 309(2) Cr.P.C. and its second proviso, Sections 303 and 304 Cr.PC. They runs as under:-
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 39-A 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 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.
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 (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 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.
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 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 39-A of the Constitution.