Criminal Appeal No.20 of 2005

16th March, 2018.

Petitioner Counsel: Shri P.S. SAHARE
Respondent Counsel: Shri N.H. JOSHI

Cases Cited:
Suk Das and another Vs. Union Territory of Arunachal Pradesh, AIR 1986 SC 99 [Para 9]

JUDGMENT

JUDGMENT :- The challenge is to the judgment and order dated 16-9-2004 rendered by the learned 3rd Ad hoc Additional Sessions Judge, Chandrapur in Sessions Case 34/2002, by and under which the appellantaccused is convicted for offence punishable under Section 376 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for four years and to payment of fine of Rs.500/.

2. Heard Shri N.H. Joshi, learned Additional Public Prosecutor for the respondent.

3. Shri P.S. Sahare, learned Counsel for the accused states that he is not ready with the matter. The appeal is partheard. The learned Additional Public Prosecutor Shri N.H. Joshi was heard on 14-3-2018 and 15-3-2018. On both the aforesaid dates of hearing the learned Counsel for the accused did not appear. The request for adjournment is rejected.

4. Few disturbing facts emerge from the scrutiny of record.

5. It is too settled a position of law, to warrant a lengthy discussion or debate, that right to legal aid is an integral facet of right to a fair trial which is inter alia guaranteed under Article 21 of the Constitution of India.

6. The learned Additional Public Prosecutor Shri N.H. Joshi in all fairness, invites my attention to the fact that the learned Counsel who appeared on behalf of the accused in the trial Court, after the evidence of P.W.1prosecutrix and P.W.2 was recorded, filed on record a no instructions praecipe on 07-05-2004 (Exhibit 22), with the result that the witnesses which are examined later on were either crossexamined by the accused or the crossexamination is declined. Perusal of Exhibit 22 reveals that all that is stated is that Counsel has no instructions from the accused. Surprisingly, it appears from record that immediately the learned Sessions Judge proceeded to record the evidence of P.W.3, P.W.4 and P.W.5. The learned Sessions Judge did not feel it necessary to adjourn the trial to enable the accused to engage some other counsel nor was it felt necessary to inform the accused that he is entitled to legal aid.

7. P.W.3 Tulsabai Thakare is a material witness. She is examined to bring on record that immediately after the alleged incident, the prosecutrix narrated the incident to her. The accused cross-examined her without the assistance of Counsel, her evidence has gone unchallenged. P.W.4 Rekha Aasutkar is again a witness to whom the prosecutrix allegedly narrated the incident. The accused declined to cross-examine P.W.4 Rekha. P.W.7 Dr. Sangita Narnaware is the Medical Officer who examined the prosecutrix. The accused declined to crossexamine P.W.7. P.W.8 Sanjay Khandekar is the investigating officer whose evidence has gone unchallenged since the accused declined to crossexamine the investigating officer.

8. It appears from the record, and this is most unfortunate, that the learned Sessions Judge did not make any effort to inform the accused that he is entitled to legal aid. It is not clear what prompted the counsel on record to inform the Court that he did not have any instructions from the accused, particularly since the Counsel did crossexamine P.W.1 and P.W.2. The conduct of the learned Counsel, who left the accused in a lurch was not appropriate, to put it very mildly. Be that as it may, the conscience of this Court is satisfied that the entire trial is vitiated. The constitutional right of the accused to a fair trial is violated in a most casual and cavalier manner and with disdain.

9. It would be apposite to refer to the enunciation of law by the Hon'ble Apex Court in Suk Das and another vs. Union Territory of Arunachal Pradesh reported in AIR 1986 SC 991. The Hon'ble Apex Court observes that free legal assistance at State costs is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 of the Constitution of India and the exercise of such right is not conditional upon the accused applying for free legal assistance. In the case at hand, the least which was expected from the learned Sessions Judge was to enquire from the accused whether he needed free legal aid. This Court is impelled to record, although with some reluctance and lot of regret that neither the Counsel on record nor the learned Sessions Judge was alive to the constitutional rights and aspirations of the accused.

10. Ordinarily, this Court would have remitted the matter to the learned Sessions Judge to conduct a fresh trial from the stage of recording the evidence of P.W.3. However, since P.W.1 and P.W.2 are crossexamined by the Counsel who has placed on record the no instructions praecipe, I deem it appropriate to set aside the judgment and order impugned and to direct that the trial be conducted de novo.

11. The accused shall appear before the learned Sessions Judge on 11-6-2018. The learned Sessions Judge shall satisfy himself that the accused is able to engage Counsel and if the accused is not in a position to engage Counsel, he shall be provided free legal aid.

12. The incident occurred in 2002. It is, therefore, expected that the trial be conducted speedily and preferably on a day to day basis. In any event, the trial shall be concluded on or before 31-12-2018. The accused shall execute fresh P.R. Bond before the trial Court.

13. In the light of the discussion supra, the judgment and order impugned is set aside subject to the above directions.

14. The appeal is disposed of accordingly.

Ordered accordingly.