Judgment : S. NAGAMUTHU, J. 1. This is a classic case of denial of fair trial which is a well cherished and a precious Fundamental Right guaranteed under the to an accused facing prosecution in respect of certain offences alleged to have been committed by him. 2. The appellant is the sole accused in S.C. No. 110 of 2004 on the file of the learned Additional Sessions Judge, Fast Track Court No. V, Coimbatore, at Tirupur. He stood charged for the offences under Sections 452, 393 read with 398 IPC. He denied the charges and therefore, the trial Court proceeded with the trial. 3. From the records, it could be seen that a learned Member of Tirupur Bar Association was engaged as the counsel by the appellant and accordingly, he was on record. The case was listed for examination of witnesses on 5.4.2004. On that day, totally, six witnesses were present on summons, including the Doctor, who treated the victim of the crime. The learned Sessions Judge commenced the examination of P.W.1 at 12.32 p.m. on 5.4.2004. Here, I have to mention that the records would show that the learned Sessions Judge has meticulously recorded the time of commencement of chief-examination of each witness and the time at which, the chief examination of each witness was concluded, the time at which the cross-examination was commenced in respect of each witness and the time at which the cross-examination was concluded in respect of each witness. Coming back to the examination of P.W.1, he is the Doctor, who treated the victim. The learned Sessions Judge has adopted an irregular procedure of examining the Doctor, who treated the injured to speak about the injuries first, instead of examining the injured. The most important substantive piece of evidence in respect of the occurrence would be that of the injured. The evidence of the Doctor shall only be corroborative in nature only in order to test the truthfulness of the version spoken to by the injured witness, the medical evidence let in. Therefore, as a part of fair trial to be afforded to the accused, it is always necessary that the injured witness or in cases where there are eye witnesses, they should be examined first and then only the Doctor should be examined. But, in this case, curiously, the learned Sessions Judge had permitted the prosecution to examine the Doctor first. Therefore, as a part of fair trial to be afforded to the accused, it is always necessary that the injured witness or in cases where there are eye witnesses, they should be examined first and then only the Doctor should be examined. But, in this case, curiously, the learned Sessions Judge had permitted the prosecution to examine the Doctor first. This is not in consonance with the fair trial to be afforded to the accused. 4. The records would further reveal that the chief-examination of P.W.1 was completed at 12.02 p.m. The learned Sessions Judge has recorded that the counsel on record for the accused was not present in the Court during trial. However, the learned Judge was not inclined to adjourn the case, since, there were already six witnesses present on summons. The learned Sessions Judge has further recorded that in view of a judgment of the Hon‘ble Supreme Court (details not given), he was inclined only to proceed with the trial further without adjourning the case. Then, he called upon the accused himself to cross-examine. The learned Sessions Judge has recorded that cross-examination commenced at 12.44 p.m., then he has recorded that despite opportunity afforded to the accused, he did not cross-examine the witnesses. Then, he recorded that there was no reexamination. He has further recorded that the time of completion of cross examination as stated above was 12.45 p.m. Thereafter, he has recorded in the deposition of P.W.1 that the accused requested the Court to appoint an advocate at the cost of the State to defend him. The learned Sessions Judge has further recorded that in the interest of justice, accepting the said request under Section 304 Cr.P.C, one Mr. A. Manavalan, an advocate, was appointed to defend him. Then, the learned Sessions Judge has recorded in the deposition of P.W.1 itself that the said advocate Mr. A. Manavalan commenced the cross-examination at 1.00 p.m. Then, the cross-examination was completed at 1.02 p.m. 5. Then, P.W.2 was examined at 1.05 p.m. on the same day. P.W.2 is the victim of the crime. The learned Sessions Judge has recorded in the deposition of P.W.2 that the cross-examination commenced at 1.22 p.m. and the same was completed at 1.31 p.m. The learned Sessions Judge has further recorded that at 3.00 p.m. on the same day, P.W.2 was recalled and he was further cross-examined by the defence counsel. P.W.2 is the victim of the crime. The learned Sessions Judge has recorded in the deposition of P.W.2 that the cross-examination commenced at 1.22 p.m. and the same was completed at 1.31 p.m. The learned Sessions Judge has further recorded that at 3.00 p.m. on the same day, P.W.2 was recalled and he was further cross-examined by the defence counsel. The cross-examination was completed at 3.07 p.m. In the same fashion, all the witnesses upto P.W.7, the investigating Officer, were examined. As per the records, in the deposition of P.W.7-the Inspector of Police, who investigated the case, the chief-examination was commenced at 3.56 p.m; the cross-examination was commenced at 4.10 p.m. and it was completed at 4.27 p.m. From the above narration, it could be seen that the examination of witnesses commenced on 5.4.2004 at 12.32 p.m. and completed at 4.27 p.m. and in the mean while, seven witnesses had been examined. On completing the trial, the learned Sessions Judge convicted the appellant under Section 393 read with 398 IPC and sentenced him to undergo rigorous imprisonment for seven years each for the offence under Section 393 read with 398 IPC and to pay a fine of Rs. 1,000/- for the offence under Section 393 IPC, in default to suffer simple imprisonment for one month, by judgment dated 13.5.2004. Hence, this appeal. 6. As I have already stated, the learned Sessions Judge appointed a State Brief Counsel at 12.45 p.m. andasked him to cross-examine the witnesses at 1.00 p.m. The trial went on continuously, with a short lunch break. It is not understandable as to how, the counsel could have got instructions within 15 minutes from the accused to defend him, in such a serious case. I also wonder as to how, the learned Sessions Judge was satisfied that 15 minutes time gap would be sufficient for a counsel to get instructions and to cross-examine the witnesses to take effective defence of the accused. This only shows that the learned Sessions Judge has conducted the proceedings in a hasty manner, without minding that fair trial is one of the cherished Fundamental Rights guaranteed under the , afforded to an accused. 7. This only shows that the learned Sessions Judge has conducted the proceedings in a hasty manner, without minding that fair trial is one of the cherished Fundamental Rights guaranteed under the , afforded to an accused. 7. In a similar situation, after making a reference to Maneka Sanjay Gandhi v. Rani Jethmalani AIR 1979 SC 468 : 1979 SCC (Cr) 934: LNIND 1979 SC 342: (1979) 1 MLJ (Crl) 541, the Hon‘ble Supreme Court has observed in Commissioner of Police v. Registrar, Delhi High Court AIR 1997 SC 95 : 1996 SCC (Cr) 1325: LNIND 1996 SC 1687 as follows: “Emphasis need be laid on Article 21 of the Constitution which enshrines and guarantees the precious right of life and liberty to a person, deprivable only on following the procedure established by law in a fair trial, assured of the safety of the accused. Assurance of a fair trial is the first imperative of the dispensation of justice. ” 8. Similarly, in Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140 : 1991 SCC (Cr) 172 : LNIND 1990 SC 468 : (1991) 1 MLJ (Crl) 281, the Hon‘ble Supreme Court in paragraphs 12 and 13 has observed thus at p. 287 of MLJ (Crl): “12. ...At the same time the liberty of a citizen is a precious one guaranteed by Article 3 of Universal Declaration of Human Rights and also Article 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Article 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under Articles 14, 19Articles 14, 19 and 21 of the Constitution................ 13. Though Article 39 -A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the Court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency” 9. In Zahira Habibullah Sheik v. State of Gujarat AIR 2006 SC 1367 : (2006) 2 SCC (Cr) 8 : LNIND 2006 SC 168: (2006) 2 MLJ (Crl) 517, the Hon‘ble Supreme Court has held as follows at p. 534 of MLJ (Crl): “38. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice ”. Thus, any procedure, which the Court follows should ensure that fair trial is afforded to the accused. In this case, it appears that the learned Sessions Judge was very meticulous in following a procedure to speed up the trial with undue haste forgetting that it is his al obligation to afford fair trial to the accused. 10. A perusal of the chief-examination of P.W.2-the injured and P.W.4-the eye witness, would go to show that they did not say in chief-examination that the accused was known to them prior to the occurrence, but, in the cross-examination, it has been suggested by the counsel that this case has been falsely foisted because of some money transaction between P.W.2 and the accused. I am doubtful, as to whether this instruction would have been given by the accused to the counsel in his defence. 11. In a nut-shell, I have to state that instead of affording a fair trial to the accused, the trial Court has conducted only farcical trial, which offends Articles 21 and 14 of the and therefore, the trial Court ‘s judgment convicting the accused based on the above farcical trial cannot be allowed to sustain. 12. Mr. R. Muniyapparaj, the learned Government Advocate would, however, submit that in the appeal memorandum, no ground has been taken stating that there was no fair trial afforded to the accused. 12. Mr. R. Muniyapparaj, the learned Government Advocate would, however, submit that in the appeal memorandum, no ground has been taken stating that there was no fair trial afforded to the accused. He would further submit that the irregularity committed by the learned Sessions Judge as stated above cannot be a ground to reverse the conviction, in view of the saving clause contained in Section 465 Cr.P.C. In my considered opinion, in a Criminal Appeal, it, is immaterial, whether a specific ground has been taken in the memorandum of appeal or not. It is sufficient, if argument is advanced pointing out that fair trial was not afforded to the accused. Therefore, the first objection raised by the learned Government advocate, is rejected. Insofar as the contention relating to Section 465 Cr.P.C. is concerned, I am of the view that if the irregularity is of such a nature, which has not caused any prejudice to the accused, then, in such an event Section 465 Cr.P.C. may come to the rescue of the prosecution. But, here in this case, what has been done by the learned Sessions Judge is not an irregularity, but, it is an illegality, because, it directly offends Articles 21 and 14 of the. When such a grave illegality has been committed by the learned Sessions Judge in denial of fair trial to the accused, I am of the view that Section 465 Cr.P.C. is not available for the prosecution to make an attempt to sustain the conviction. Therefore, this argument is also rejected. 13. In view of the above, without going into the credibility of the witnesses examined in this case, I am inclined to set aside the conviction and sentence imposed on the appellant solely on the ground of denial of fair trial to the accused. 14. Therefore, this argument is also rejected. 13. In view of the above, without going into the credibility of the witnesses examined in this case, I am inclined to set aside the conviction and sentence imposed on the appellant solely on the ground of denial of fair trial to the accused. 14. In the result, the appeal is allowed, on the following terms: (i) The conviction and sentence imposed on the appellant/ accused by the learned Assistant Sessions Judge, Fast Track Court No. V, Coimbatore, at Tirupur, in S.C. No. 110 of 2004, dated 13.5.2004, is set aside; (ii) The matter is remitted back to the trial Court, with a direction to the trial Court to permit the accused to engage a counsel of his choice or in the event of his request, appoint a State Brief Counsel, having experience in criminal trial, recall the prosecution witnesses as required by the accused and further, allow the counsel to cross-examine the witnesses affording enough time for the counsel, so as to ensure fair trial to the accused as indicated above and to dispose of the case in accordance with law; (iii) If it is needed, the trial Court may alter the charge also.