JUDGMENT : R.N. Misra, J. - The Appellant along with his brother was put on trial u/s 302/34, Indian Penal Code on the allegation that they by about the noon on 7-5-1968 assaulted the deceased Ganga Behera and the deceased succumbed to the injuries on the following day. 2. It is not necessary to go into the merits of the case because we are satisfied upon hearing the learned Counsel for the parties that there has not been a fair trial in this case. 3. Sessions Case No. 36 of 1968 was tried by the learned Sessions Judge of Berhampur on, circuit at Boudh. Shri L. Mohapatra, Advocate, Boudh was appointed as The State Defence Counsel for The accused persons and on 6-3-1969 the Court directed a brief to be sent to him. The trial was posted to 10-3-1969 at the circuit. Shri L. Mohapatra, the defence lawyer, returned the brief along with a memorandum expressing his inability to conduct the case as be was sick. It appears from the order-sheet that the learned Trial Judge did not arrive at Boudh, but sent intimation saying that he would reach the next day. The case was accordingly adjourned to the next day. On 11-3-1969, Shri Natabar Pradhan, Advocate, was appointed as the State defence counsel. Charge was framed and the trial began. 11 witnesses were examined on that day and the prosecution case was closed. On 12-3-1969, some document were admitted in evidence, the statement of the accused persons were recorded, arguments were heard and The case was adjourned to the next day for judgment when the impugned judgment was delivered acquitting one of the accused persons and convicting the other who is the Appellant before us. 4. From the order-sheet of 11-3-1969 of the learned Trial Judge it is clear that the appointment of the State defence counsel was made only when the Court began its sitting and he was required to proceed with the trial forthwith. It is difficult for us to comprehended as to how the learned trial Judge was satisfied that the defence counsel was equipped properly for defending The accused persons who were standing trial for murder. There could have been no time for the defence counsel to be acquainted with the facts of the case and to find out what defence would be taken. There could have been no time for the defence counsel to be acquainted with the facts of the case and to find out what defence would be taken. There was no scope for being instructed about cross-examination of the prosecution witnesses. In view of the fact that 11 witnesses have been examined by the learned Trial Judge on that day and the typed disposition of these witnesses as would appear from the Paper Book prepared in this Court covers 23 pages, the trial Court must have begun Boon after the Court sat. It would, therefore, follow that the learned Trial Judge did not give a reasonable opportunity to the defence counsel to be prepared for the defence. We find there has been some cross-examination by the counsel for the accused persons. In the circumstances he must have tried his best to discharge his duty properly and that is how some cross-examination has been possible. But our mind is not satisfied that there has been B fair trial. The position in law in such circumstances seems to have been was settled in Bashira v. State of U.P. 1968 S.C.D. 1148. When such a position arose, their Lordships of The Supreme Court said, There is nothing on the record to show that, after his appointment as counsel for the Appellant, Sri Shukla was given sufficient time to prepare the defence. The order-sheet maintained by the Judge seems to indicate that, as soon as the counsel was appointed the charge was read out to the accused and after his plea had been recorded, examination of witnesses began. The counsel, of course, did his best to cross-examine the witnesses to the extent it was possible for him to do in the very short time available to him. It is true that the record 0.180 does not contain any note that the counsel asked for more time to prepare the defence but that, in our opinion, is immaterial. The rule casts a duty on the Court itself to grant sufficient time to the counsel for this purpose and the record should show that the rule was complied with by granting him time which The Court considered sufficient in the particular circumstances of the case. The rule casts a duty on the Court itself to grant sufficient time to the counsel for this purpose and the record should show that the rule was complied with by granting him time which The Court considered sufficient in the particular circumstances of the case. In this case, the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that, in fact if any time at all was granted, it was nominal. In these circumstances, it must be held that there was no compliance with the requirements of this Rule. Their Lordships were dealing with Rule 37 framed by the Allahabad High Court in the matter of trial with engagement of State defence counsel. The facts of the present case are almost at par with the case before their Lordships of the Supreme Court. The same position was reiterated by their Lordships of the Supreme Court in Owais Alam v. State of U.P. 1969 S.C.D. 574. Their Lordships indicated that the counsel should have had an opportunity to discuss the matter with the accused and chalk out the line of defence. A Division Bench of this Court in almost similar circumstances required retrial of a cessions case. In Kamala Domen v. State 1971 (1) C.W.R. 636, our learned brother Hay, J. stated, Where the accused has a right to the free legal aid under any rule having the force of law, and he is deprived of such aid and/or opportunity for preparing for effective defence by denying sufficient time to the amicus curiae counsel appointed under such rule and due to such non-compliance of the mandatory provisions of such law or rule or violation of principles of fair trial, it results in deprivation of the liberty of a citizen, the question of prejudice does not arise. In such cases, the trial having taken place in derogation of the right of the accused becomes void, and therefore, there is no question of prejudice. In such cases, the trial having taken place in derogation of the right of the accused becomes void, and therefore, there is no question of prejudice. Even if there is no rule which confers such a right on the accused, but there are in existence Government circulars which direct conferment of this privilege of a free legal aid, and adequate opportunity for preparation of the defence, the counsel for the accused should be granted sufficient time for preparation of the defence as otherwise there cannot be proper and fair trial and in such cases prejudice would be writ large on the face of the proceeding, except in the limited cases where records show that there has not been in fact any kind of prejudice that can be contemplated. The trial may not be void, but will certainly be vitiated having taken place in violation of principles of fair trial. In either case, the judgment must be quashed and retrial must be held. On the facts of this case we re satisfied that it is a fit case where the appeal must be allowed. The judgment of conviction must be set aside and there must be a remit of the Sessions case to the Sessions Judge with a direction for retrial. As the co-accused has been acquitted and there is no appeal, the retrial shall certainly be confined to only one accused-Mangulu Behera. The learned Trial Judge is called upon to expedite the trial. B.C. Das, J. 5. I agree.