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2007 DIGILAW 146 (KER)

Varghese @ Biju v. State of Kerala

2007-02-26

J.B.KOSHY, T.R.RAMACHANDRAN NAIR

body2007
Judgment :- Koshy, J. This appeal is filed against the conviction and sentence of the appellant for offence punishable under Section 302 of the Indian Penal Code. Before going into the merits of the matter, a primary objection was raised regarding denial of opportunity to defend the case properly while appointing a counsel at State expense as provided under section 304 of the Code of Criminal Procedure and Criminal Rules of Practice. 2. The order sheet shows that the case was posted for evidence on 3.2.2003. On that day, counsel for the appellant (A1) was not present. Immediately, the Court appointed another advocate and asked him to continue the examination. The order sheet reads as follows: "3.2.2003 A1 produced. A2 present. The counsel for A1 is not present. Witness present. A1 stated that another advocate may be appointed by this Court to conduct his defence. As A1 is in judicial custody, Adv. B. Rajesh is appointed to conduct the defence of A1. Cws 1 to 12, 14, and 15 present. CW 13 reported dead. His death certificate is produced. The counsel appointed to conduct the defence of A1 states that the examination of the witnesses present today may be adjourned to another date. Hence Cws. 1 to 12, 14 and 15 are bound over and directed to appear on 13.2.2003. Send back A1. Adjourned to 4.2.2003." Thereafter, on the next day, i.e., 4.2.2003, 11 witnesses were present and several documents including postmortem certificate were marked. Even though legal aid counsel appointed by the court, who had hardly four years of bar experience, appeared only on 3.2.2003, without giving a breathing time to go through the records he had to cross-examine the witnesses. Even an experienced lawyer will not be able to study the paper in a murder case over night. The order dated 4.2.2003 reads as follows: "4.2.2003 A1 produced. A2 present. CWs.43, 18, 24, 25, 33, 35, 42, 32, 38, 40 and 41 examined as PWs.1 to 11. Cws.16, 17, 19 to 23, 26 to 31, 34, 36, 37 and 39 given up. Exts.P1 to P8 and Mos.1 to 5 marked. Send back A1. Adjourned to 5.2.2003." Thereafter, on 5.2.2003 two other witnesses were examined. Then on 13.2.2003, Cws.1, 2, 3 and 5 were examined as Pws.14 to 17. According to the counsel for the appellant, this procedure has prejudiced the accused. Exts.P1 to P8 and Mos.1 to 5 marked. Send back A1. Adjourned to 5.2.2003." Thereafter, on 5.2.2003 two other witnesses were examined. Then on 13.2.2003, Cws.1, 2, 3 and 5 were examined as Pws.14 to 17. According to the counsel for the appellant, this procedure has prejudiced the accused. Advocate Sri.B.Rajesh who was entrusted to conduct the case was a junior advocate at that time. He has not even having four years Bar experience on that date. Further, he was asked to appear only on 3.2.2003 and the next day itself he was compelled to examine 11 witnesses. 3. The Public Prosecutor submitted that eye witnesses and the person who gave F.I. Statement were examined only on 13.2.2003, but, the doctor who issued postmortem certificate and the witnesses examined to prove motive and various other witnesses were examined on the next day of his engagement as an advocate. After giving the result of medical records and other technical evidence, defence counsel should be given sufficient time to study the above before he is compelled to cross-examine the technical witnesses. Engagement of a counsel at State expense when accused is unable to engage a counsel for him under rule 21 of the Criminal Rules of Practice is not merely a procedure. It is to give effective opportunity to defend the case by the accused before his freedom is curtailed. Under rule 2 of the Legal Aid to Accused Rules, the accused is entitled to get legal aid in all criminal cases if he is disabled from engaging a lawyer and Rule 3 provides that every Criminal Court shall maintain a panel of pleaders consisting of not less than five, for the purposes of these Rules. Rule 4 says that there should be a separate panel of advocates (to be appointed by the Court in criminal cases): (1) a junior panel for conducting cases where sentence fixed for offence charged is less than ten years; and (2) a senior panel for conducting cases where maximum sentence is above ten years imprisonment or life sentence. Minimum Bar experience fixed for such advocates in the senior panel is five years. In this case, the advocate engaged had only four years of Bar experience. Minimum Bar experience fixed for such advocates in the senior panel is five years. In this case, the advocate engaged had only four years of Bar experience. He was a junior at that time and by engaging him to defend the case of the accused and that too for cross-examining the important witnesses on the very next day of his engagement, is a procedural irregularity and there is actual likelihood of prejudice. Engagement of a legal aid counsel or State Brief is not an empty formality. An effective opportunity should be given to the accused to defend his case especially here, the counsel was a junior counsel and he had no option to select his counsel. After considering the Legal Aid Rules, a Division Bench of this Court as early as in 1959 held that when a legal aid counsel is appointed, he should be supplied with copies of records and at least 10 to 15 days' time should be given to study the case. In Mathai Thommen v. State (AIR 1959 (Ker.) 241), it is observed as follows: "(14) Before we part with this case, we shall be failing in our duty if we do not refer to one or two circumstances appearing from it which show that there is a tendency on the part of some of the lower Courts to make short-cuts in the rules of practice and procedure in the interests of what they consider to be speedy disposals of cases. In the present case the proceedings paper shows that the records of the case reached the Sessions Court on 4.7.1958 and that the Sessions Judge passed orders on the next day for the posting of case for trial on 4.8.1958. Nevertheless, he engaged a counsel to defend the accused, under rule 21 of the Criminal Rules of Practice, only on 2.8.1958, allowing barely more than a day for that counsel to get prepared and obtain instructions from the accused who was locked up in the jail. It need hardly be said that in a case of this nature in which the accused ran the risk of being sentenced to the extreme penalty of law - and that sentence was actually passed on him by the Sessions Judge - the time allowed to the counsel to prepare the case and obtain instructions was totally insufficient. It need hardly be said that in a case of this nature in which the accused ran the risk of being sentenced to the extreme penalty of law - and that sentence was actually passed on him by the Sessions Judge - the time allowed to the counsel to prepare the case and obtain instructions was totally insufficient. The learned Judge could have appointed a counsel immediately after the receipt of the records or at least some 10 to 15 days in advance of the trial. The practice in the High Court, we understand, is to appoint counsel about 10 to 15 days before the hearing. In a case which was recently remanded by another Bench of this Court (Referred Trial No.15 of 1958 arising out of a Sessions Case No.44 of 1956 of the Kottayam Sessions Court) the engagement under rule 21 of the Criminal Rules of Practice was given on the very day of the trial in the Sessions Court and in both that case and the present case, instead of allowing counsel some little opportunity to prepare their cases and obtain instructions, the Sessions Judges proceeded with the trials on the dates to which they had posted the cases originally. Practices like this would reduce to a farce the engagement of counsel under rule 21 of the Criminal Rules of Practice which has been made for the purpose of effectively carrying out the duty cast on courts of law to see that no one is deprived of life and liberty without a fair and reasonable opportunity being afforded to him to prove his innocence. We consider that in cases like this counsel should be engaged at least some 10 to 15 days before the trial and should also be furnished with copies of the records." 4. Under section 303 of Cr. P.C. any person accused of an offence before a criminal court has the right to defend by a pleader of his choice. Section 304 of Cr. P.C. provides obligation of the State to give legal aid to accused. Section 304 reads as follows: "304. Under section 303 of Cr. P.C. any person accused of an offence before a criminal court has the right to defend by a pleader of his choice. Section 304 of Cr. P.C. provides obligation of the State to give legal aid to accused. Section 304 reads as follows: "304. Legal aid to accused at State expense in certain cases:- (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. (2) The High Court may, with the previous approval of the State Government make rule providing for - (a) the mode of selecting pleaders for defence under sub-section (1); (b) the facilities to be allowed to such pleaders by the Courts; (c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session." If the accused is unable to engage a counsel of his choice due to poverty etc. a capable counsel shall be appointed to defend him by the court as held by the Apex Court in Janardhan Reddy and others v. State of Hyderabad and others (1951 (52) Crl. LJ 736). This right is available to the accused in view of the principles enunciated in article 22 of the Constitution. The right given by this provision are indispensable for the fair administration of criminal justice. It is not a mere formality. Apex Court in the above case also held that the procedure must undoubtedly be construed liberally in favour of the accused and must be read along with the rules made by the High Courts and Circular orders issued by it. As held by the Apex Court in Ranchod Mathur Wasawa v. State of Gujarat (AIR 1974 SC 1143), poverty or indigence should not be a ground for denying fair trial or equal justice. As held by the Apex Court in Ranchod Mathur Wasawa v. State of Gujarat (AIR 1974 SC 1143), poverty or indigence should not be a ground for denying fair trial or equal justice. Competent lawyers alone should be appointed to defend the poor accused and they should not be engaged as a patronising gestures to raw entrants at the Bar. Further, sufficient time and complete papers should be made available so that ultimate justice is done. 5. The fundamental rights of free legal assistance at State cost to a person accused of an offence is implicit in the requirement of reasonable, fair and just procedure prescribed in article 21 of the Constitution of India. Here, in this case, appellant/accused under custody was not aware of his legal rights. Hence, he did not specifically object the engagement of the junior counsel and posting of the case to cross-examine witnesses on the very next day of entrustment of the case. Here, non- absence of the accused is not a ground to justify such action. Counsel appointed for the accused by the court must be given sufficient time and facility for preparing the defence as held by the Supreme Court in Hussainara Khatoor and others v. Home Secretary, State of Bihar (AIR 1979 SC 1377). In Suk Das and another v. Union Territory of Arunachal Pradesh (AIR 1986 SC 991), it was held that constitutional and statutory right of the poor who should be provided with legal assistance should not be taken away by one reason or other and legal assistance given must be genuine and real. The lawyer so appointed should be supplied with papers and given reasonable time to study the matter and defend the case properly. As held by the Supreme Court in Kishore Chand v. State of HP (1990 Crl.L.J. 2289 SC), the right to defence includes right to effective and meaningful defence and assigning an experienced defence counsel to an indigent accused is facet for fair procedure and inbuilt right to liberty and life and rights envisaged under articles 14, 19 and 21 of the Constitution of India. Though mere standing at the time is neither decisive of knowledge nor experience, it can surely serve as a guideline. Though mere standing at the time is neither decisive of knowledge nor experience, it can surely serve as a guideline. That is why Kerala Legal Aid Rules also provide minimum bar experience for appointment of such counsel, but, while appointing such persons, other consideration also should weigh with the Sessions Judge. Even though the Court need not give an opportunity to the accused to appoint a lawyer of his own choice at the State expense, he should be given a reasonable opportunity to defend his case by engaging a competent lawyer. The Apex Court in Bashira v. State of U.P. (AIR 1968 SC 1313) held that when a counsel is appointed, there should be sufficient time given to him to study the case. Here, in this case the appellant was charged with a very serious offence for murdering a person and considering the nature of offence charged, at least a breathing time ought to have been given to the counsel especially when he was comparatively a junior lawyer not even having the minimum five years' experience to be engaged as a legal aid counsel in a murder case as prescribed under the Rules. 6. In the above circumstances, we are of the view that the matter should be remanded so that the appellant will be enabled to conduct the case to his satisfaction and to recall the witnesses already examined, so as to give further opportunity to cross examine them. We are not striking down the evidence already adduced. The appellant will be free to recall such of those witnesses whom he wish for further cross-examination and list of such witnesses should be furnished in advance to enable the court to summon them. After the evidence is over and additional questioning under section 313 Cr. P.C., the court shall continue the proceedings from the stage of section 232 Cr. P.C. onwards afresh. We are not expressing any opinion regarding the merits of the case at this stage. We are also not interfering with the acquittal of accused No.2 who is not a party to this proceedings. In the result, the conviction and sentence entered by the learned Sessions Judge are set aside to the above extent. The matter is remanded to the Court below. As the accused was granted bail during trial, he can be released on bail on such conditions as prescribed by the trial court. In the result, the conviction and sentence entered by the learned Sessions Judge are set aside to the above extent. The matter is remanded to the Court below. As the accused was granted bail during trial, he can be released on bail on such conditions as prescribed by the trial court. Sessions Court shall post the case on 26.3.2007. Accused shall be present/produced on that day.