SHAKRAJI CHATURJI RAVAL v. STATE — 1972 DIGILAW 18 (GUJ)

B. J. DIVAN, P. D. DESAI, J. ( 1 ) THE appellant herein is original accused No. 1 in Sessions Case No. 30 of 1971 of the Sessions Court Ahmedabad Rural at Narol The appellant before us and his wife were the two accused in that case before the learned Sessions Judge. The charge against the two accused was that accused No. 1 had intentionally caused the death of Sagramji Khemaji by giving a knife blow on his stomach and thereby committed an offence punishable under sec. 302 I. P. C. and accused No. 2 was alleged to have abetted accused No. 1 in the commission of the offence of murder and thereby committed an offence punishable under sec. 302 read with sec. 109 I. P. C. It was further alleged against accused No. 1 that at the time of the commission of offence accused No. 1 was in possession of a Rampuriknife in a public place and thereby contravened the Notification dated December 18 1970 issued by the Commissioner of Police Ahmedabad City under sec. 37 (1) of the Bombay Police Act; and it was alleged that he had thereby committed an offence punishable under sec. 135 (1) of the Bombay Police Act. At the end of the trial the learned Sessions Judge found accused No. 2 wife of the present appellant not guilty of any offence whatsoever and he directed that she should be acquitted. He however found accused No. 1 guilty of the offence punishable under sec. 302 I. P. C. and sentenced him to R. I. for life. The appellant was acquitted of the offence punishable under sec. 136 (1) of the Bombay Police Act as the learned trial Judge was not satisfied that the Notification of the Commissioner of Police Ahmedabad City was duly published in the area in which the accused were residing. ( 2 ) IN the view that we take it is not necessary to set out in detail he prosecution case. 136 (1) of the Bombay Police Act as the learned trial Judge was not satisfied that the Notification of the Commissioner of Police Ahmedabad City was duly published in the area in which the accused were residing. ( 2 ) IN the view that we take it is not necessary to set out in detail he prosecution case. It was alleged against the accused that the incident took place on January 25 1971 at about 6 P. M. near the main highway running between Ahmedabad City and Dehgam and in the course of that incident accused No. 1 the present appellant is alleged to have stabbed Sagramji Khemaji with a Rampuri knife on his stomach and this injury proved fatal as the deceased expired at the Civil Hospital Ahmedabad where he was admitted. It may be pointed out that after the completion of the investigation in the case a charge sheet was submitted against the accused in the Court of the Judicial Magistrate First Class City Taluka; and at that time both the accused were represented by advocates M/s. M. G. Amin and V. P. Patel. The order committing the accused to the Court of Sessions was passed by the learned Magistrate on May 12 1971 When the examination under sec. 342 Cr. P. C. was carried out before the learned Judicial Magistrate First Class who committed the two accused to the Court of Sessions the usual question was asked whether either of the two accused wanted Government to make arrangements for their defence and both the accused slated that they would make their own arrangement and that they did not want the Government to make any arrangement for the defence. The question asked to each accused was:-DO you wish to engage pleader for your defence in the Sessions Court at the cost of the Government ?each of the two accused replied in the negative. We may point out that the Vakalatnama in favour of Mr. V. P. Patel was on the record of the learned Judicial Magistrate. Thereafter it seems that before fixing the case for trial before the Sessions Court the learned Sessions Judge contacted Mr. V. P. Patel and apparently Mr. V. P. Patel informed the learned Sessions Judge that he was not going to defend either of these two accused. V. P. Patel was on the record of the learned Judicial Magistrate. Thereafter it seems that before fixing the case for trial before the Sessions Court the learned Sessions Judge contacted Mr. V. P. Patel and apparently Mr. V. P. Patel informed the learned Sessions Judge that he was not going to defend either of these two accused. In consequence on June 17 1971 the learned Sessions Judge wrote a letter bearing No. 524/71 informing the Jail Superintendent that the case against the two accused was fixed for final hearing on June 21 1971 and the Superintendent was requested to produce the two accused who were under trial prisoners before the Sessions Court. The letter then proceeds :-NOW on inquiry Shri Patel states that he is not going to defend the said accused. you are therefore requested to ascertain from them whether they are going to make their private arrangement for their defence or they intend to defend themselves at the cost of Government. FROM the record which is available before us we do not find any reply sent by the authorities of the Ahmedabad Central Prison to the learned Sessions Judge but we find that on June 21 1971 the date on which the trial was fixed at 11 A. M. the two accused presented an application requesting the learned Sessions Judge to appoint an advocate for them to defend them at Government expense and in that application it was pointed out that their financial position was not such as would enable them to engage a pleader or an advocate for their defence. Below this application dated June 21 1271 the learned Sessions Judge on that very day passed the following order:-SHRI V. P. Patel acted as the advocate of the accused in the Committing Magistrates Court and hence he is conversant with the facts of the case. Hence he should be appointed as pauper pleader. THEREUPON a separate order was passed at Ex. 1 in the record whereby Mr. V. P. Patel was appointed as a pleader to defend the two accused and on the same day another order was passed appointing Mr. M. G. Amin senior advocate to assist Mr. V. P. Patel in an honorary capacity. The Rojnama shows that after these two orders at Ex. 1 and 2 appointing Mr. V. P. Patel and Mr. V. P. Patel was appointed as a pleader to defend the two accused and on the same day another order was passed appointing Mr. M. G. Amin senior advocate to assist Mr. V. P. Patel in an honorary capacity. The Rojnama shows that after these two orders at Ex. 1 and 2 appointing Mr. V. P. Patel and Mr. M. G. Amin respectively as pleaders for the accused were passed on June 21 the charge was framed and the pleas of the two accused were recorded. Both the accused pleaded not guilty to the charge and claimed to be tried. Thereafter depositions of different witnesses were recorded. By the time the Court adjourned for the day depositions of 17 witnesses were recorded in connection with this case. The remaining witnesses were examined on the following day and even the arguments were heard on June 22 1971 Thereafter the case was adjourned for judgment to June 30 1971 On June 30 the judgment was delivered and the trial ended as above. ( 3 ) MR. Trivedi for the appellant before us has contended that the learned Sessions Judge had not given sufficient time to Mr. V. P. Patel who was appointed as advocate for the accused at Government expense to enable him to obtain instructions from the two accused to prepare properly for the defence of the accused and hence prejudice has been caused to the appellant in his defence. Mr. Trivedi pointed out that relevant rules have been framed under the Law Officers Conditions of Service Rules framed by the Government of Bombay as far back as 19th August 1939 under the provisions of sec. 241 (2) (b) of the Government of India Act 1935 and that in violation of the relevant rule the learned trial Judge failed co give sufficient time to Mr. V. P. Patel for preparing for the defence of the two accused. ( 4 ) THE narration of facts which we have set out above clearly shows that the appointment was made sometime after 11 A. M. on June 21 1971 and immediately there after the trial seems to have proceeded because there is nothing on the record to show that sufficient till the or any time was given to Mr. ( 4 ) THE narration of facts which we have set out above clearly shows that the appointment was made sometime after 11 A. M. on June 21 1971 and immediately there after the trial seems to have proceeded because there is nothing on the record to show that sufficient till the or any time was given to Mr. V. P. Patel to obtain instructions from the two accused regarding their defence in the Sessions trial and as many as 17 witnesses were examined on the very day on which the order appointing Mr. V. P. Patel to defend the two accused at Government expense was passed by the learned Sessions Judge. Under Rule 58 of the Law Officers Conditions of Service Rules and Rules for the Conduct of the Legal Affairs of Government provision is made for employment of counsel for the defence of persons accused of offences punishable with death and sub-rule (5) of Rule 58 is in these terms:- (5) The appointment of a counsel or pleader for the defence should not be deferred until the accused has been called upon to plead. The counsel or pleader should always be appointed in sufficient lime to enable him to take copies of the depositions and other necessary papers which should be furnished free of cost before the commencement of the trial or other proceeding. If after the appointment of such legal practitioner the accused appoints another counsel or pleader the counsel or pleader appointed by the Court may still in the discretion of the Cleric of the State the Registrar of the High Court or the Sessions Judge as the case may be allowed his fee for the case but the copies already prepared should be made available Up payment for the use of the counsel or pleader privately appointed by the accused. THE relevant portion of this rule has been reproduced in rule 7 of Chapter IV of the Criminal Manual issued by the High Court of Judicature Appellate Side Bombay for the guidance of the Criminal Courts and officers subordinate to it. Sub-rule (3) of rule 7 reproduces rule 58 (5) which we have set out hereinabove. ( 5 ) THE questions then arise whether the trial was vitiated because of sufficient time not having been given to Mr. Sub-rule (3) of rule 7 reproduces rule 58 (5) which we have set out hereinabove. ( 5 ) THE questions then arise whether the trial was vitiated because of sufficient time not having been given to Mr. V. P. Patel for preparing for defence of the accused and secondly whether any prejudice is caused to the accused because of sufficient time not having been given to Mr. V. P Patel for preparing for the defence. ( 6 ) AS was have pointed out above the Rules under the Law Officers Conditions of Service Rules and Rules for the Conduct of the Legal Affairs of Government were made under sec. 241 (2) (b) of the Government of India Act 1935 and hence they are statutory Rules and have the force of law. By virtue of Art. 372 of the Constitution of India these rules which were part of the existing laws continue to apply even after the commencement of the Constitution and the repeal of the Government of India Act 1935 by the enactment of the Constitution. ( 7 ) ON a bare reading of sub-rule (5) of rule 55 it is clear that the said rule has been enacted so that a person who is unable to defend himself for want of financial means should not be made to face a charge in a criminal trial when the possible sentence may be of death without proper defence being arranged for him and it is therefore necessary according to this rule that sufficient time should be given to the advocate for obtaining instructions from the accused who is to be defended at Government expense and secondly sufficient time must be given to the advocate to receive instructions from the accused and to prepare for the defence. The rule very properly provides that the appointment of such a pleader for the defence at Government expense should not be deferred till the accused has been called upon to plead. The appointment must be made sufficiently in advance so that he may be able to take copies of the depositions and other necessary papers and obtain necessary instructions from the accused if necessary visit the scene of offence and thus properly prepare himself for conducting the defence of the accused. The appointment must be made sufficiently in advance so that he may be able to take copies of the depositions and other necessary papers and obtain necessary instructions from the accused if necessary visit the scene of offence and thus properly prepare himself for conducting the defence of the accused. Looking to the object behind sub rule (5) of rule 58 and the purpose which this particular rule has to sub serve it is obvious that these requirements about sufficient time being given to the pleader and his appointment not being made till the last possible moment before the plea of the accused is recorded have been laid down in the interests of the accused and are mandatory provisions. These Rules are not meant as a mere formality They must be observed in spirit and in form and sufficient time in each case must be given to the advocate who is appointed by the Sessions Judge to defend the accused at Government expense firstly to enable the advocate to obtain instructions from the accused concerned about the defence of the accused and secondly sufficient time must also be given to him to enable him to consult the accused to prepare for the defence and for studying the relevant law points the relevant papers in connection with the case and visiting the scene of offence if necessary. In the instant ease though Mr. V. P. Patel represented the accused at the stage of the committal inquiry it does not necessarily follow that he was aware of the line of defence which the accused wanted to take up at the time of the trial. It is well known that at the stage of the inquiry before the committing Magistrate all that is required to be established by the prosecution is that there is a prima facie case for the Magistrate to commit the accused to the Court of Sessions. We find from the papers in this case that Mr. M. G. Amin who was appearing for the accused before the committing Magistrate with Mr. V. P. Patel whose Vakalatnama was also on the record of the committing Magistrate did not put a single question to the solitary witness who was examined at the stage of committal proceedings. Under these circumstances it is very difficult for us to hold that Mr. V. P. Patel whose Vakalatnama was also on the record of the committing Magistrate did not put a single question to the solitary witness who was examined at the stage of committal proceedings. Under these circumstances it is very difficult for us to hold that Mr. V. P. Patel had received sufficient instructions from the accused to enable him to conduct the defence of the accused at the Sessions trial when the accused were facing the charge of murder punishable under sec. 302 I. P. C. which incidentally makes the offence punishable with death. The facts set out above clearly indicate that there was a clear violation of sub rule (5) of rule 58 so far as the facts of this case are concerned. ( 8 ) A similar situation arose before the Supreme Court in Bashira v. State of U. P. A. I. R. 1968 S. C. 1313. Rule 37 of the Rules promulgated by the Allahabad High Court in exercise of its powers under Art. 227 of the Constitution and see. 554 of the Code of Criminal Procedure provided for the defence of the accused at Government expense in Sessions cases. Rule 37 is reproduced at page 1316 of the report and the relevant portion of the rule reads as follows:-IN any case which comes before a Court of Session the Court may engage counsel to defend the accused person if (A) the charge against him is such that a capital sentence is possible and (b) it appears that he has not engaged counsel and is not possessed of sufficient means to do so. THE rule also provided that the counsel appointed under the rule shall be furnished with the necessary papers free of cost and allowed sufficient time to prepare for the defence. It was found by the Supreme Court in that case that the trial against the appellant before it was fixed on February 28 1967 as the date for starting the actual trial of the case. On that day before beginning the trial the learned trial Judge appointed one Sri Sirish Chandra Advocate as amicus curiae counsel to represent the appellant. Two principal witnesses were examined and their depositions were recorded on that very day. The remaining evidence was recorded on 1st March 1967 and the examination of the accused under sec. 342 Cr. On that day before beginning the trial the learned trial Judge appointed one Sri Sirish Chandra Advocate as amicus curiae counsel to represent the appellant. Two principal witnesses were examined and their depositions were recorded on that very day. The remaining evidence was recorded on 1st March 1967 and the examination of the accused under sec. 342 Cr. P. C. was also carried out on 1st March 1967 The Supreme Court on these facts and on interpretation of rule 37 observed:-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 council of course did his best to across 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 also 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. 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 it 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. The Rule with which we are concerned in the instant case is in much Stronger language than the rule which was before the Supreme Court. In these circumstances it must be held that there was no compliance with the requirements of this Rule. The Rule with which we are concerned in the instant case is in much Stronger language than the rule which was before the Supreme Court. In this case the direction is given to the Sessions Judge that the pleader for the defence at Government expense should be appointed well in advance and the appointment should not be deferred until the accused has been called upon to plead and he should always be appointed in sufficient time to enable him to take copies of the depositions and other necessary papers which should be furnished free of cost before the commencement of the trial. The whole object of making this provision in rule 58 (5) is to see to it that the advocate gets sufficient opportunity to prepare for the defence and to represent the case of the accused to the best of his ability and in the best possible manner. ( 9 ) IT is clear on the facts of the instant case that as many as 17 witnesses were examined on the very day on which Mr. V. P. Patel was appointed and further the plea of the accused was recorded immediately after the appointment of the advocate was made. The prosecution examined three witnesses as eye witnesses in this case and all the three eye witnesses were examined on the very day on which the appointment was made. We have gone through the record of the case and we find that the questions put in cross examination to these three eye witnesses are more or less formal questions and it seems that Mr. V. P. Patel tried to do the best that he could under the circumstances for the two accused but the point still remains that sufficient time was not given to Mr. Patel to prepare for the defence of the accused. The question is not whether Mr. Patel thought that there was sufficient time or not but it must appear from the record of the case that the learned Sessions Judge gave such sufficient time as he thought fit in the circumstances of the case to enable Mr. Patel to prepare for the defence. The question is not whether Mr. Patel thought that there was sufficient time or not but it must appear from the record of the case that the learned Sessions Judge gave such sufficient time as he thought fit in the circumstances of the case to enable Mr. Patel to prepare for the defence. In para 11 of the judgment the Supreme Court pointed out that in such a case the question of prejudice does not arise when a citizen is deprived of his life without complying with the procedure prescribed by law. Still however the question of prejudice was in fact examined by the Supreme Court and it was held that prejudice had in fact been caused to the accused. In the instant case also we find that Mr. V. P. Patel put purely formal questions to the different witnesses and in particular the eye witnesses. For example there was practically no cross examination of the doctor who performed the post mortem examination on the deceased in this case particularly no cross examination regarding the nature of the injury and the details regarding the injury itself. We feel that in such cases if sufficient time is not granted to the counsel to prepare for the defence prejudice must necessarily be inferred and as the Supreme Court held in similar circumstances the trial must be held to be vitiated. ( 10 ) IN our opinion in the instant case there was a clear breach of the rule the provisions of which are held to be mandatory by us and secondly prejudice was in fact caused to the accused by reason of the fact that sufficient time was not given to Mr. V. P. Patel to enable him to prepare for the defence. For the guidance of all Sessions Judges and others who are conducting such trials we wish to point out that this rule is not a merely formal rule but is a salutary provision meant for he proper defence of life and liberty of the citizen who is not able to provide for his own defence because of economic circumstances. In such cases the Presiding Judge must take care to see that the appointment is made sufficiently in advance of the commencement of the trial to enable the advocate appointed for this purpose to prepare for the defence and to obtain instructions from the accused concerned. In such cases the Presiding Judge must take care to see that the appointment is made sufficiently in advance of the commencement of the trial to enable the advocate appointed for this purpose to prepare for the defence and to obtain instructions from the accused concerned. Unless sufficient time is given in this manner the accused is bound to suffer in his defence and prejudice is bound to be caused to him. ( 11 ) UNDER these circumstances we hold that there was a breach of the provisions of the rule in question and also prejudice was caused to the accused in his defence and the entire trial was vitiated. We have already indicated above that out of the two accused one accused was acquitted and there has been no appeal against the order of acquittal passed in her favour. That acquittal has therefore become final. This is not a case in which we can be called upon to exercise our powers of revision under sec. 439 Cr. P. C. and therefore so far as the order of acquittal passed in favour of original accused No. 2 the wife of the present appellant is concerned that order of acquittal will stand. Since the trial was vitiated the order of conviction and sentence passed against the appellant is set aside and the Sessions Court is directed to start de novo trial of the appellant original accused No. 1 on a proper charge. Since considerable time has elapsed and since the present appellant has been in custody since the incident which occurred on January 25 1971 it is desirable that his retrial should be completed at a very early date. Orders accordingly. .