Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 752 (GAU)

Bubul Gogoi @ Sushen Gogoi v. State of Assam

2011-09-09

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U. B. Saha, J. 1. The instant revision petition has been filed by the petitioner challenging the order dated 04.03.2011 passed by the learned Sessions Judge, Dhemaji in Crl. Appeal No. 15/2010 whereby and whereunder the appeal preferred by the accused petitioner was dismissed for default. 2. Heard Mr. D. Talukdar, learned counsel appearing for the petitioner. Also heard Mr. B. S. Sinha, learned Addl. PP, Assam. 3. The brief facts of the case are as follows: The accused petitioner is the charge sheeted accused and tried by the learned Judicial Magistrate, 1st Class, Dhemaji in connection with the offence under Sections 279/338/304(A) IPC and on trial, he was convicted and sentenced against which he preferred the appeal before the learned Sessions Judge, Dhemaji. When the matter was called on 04.03.2011, none appeared on behalf of the appellant and on that ground alone, the appeal was dismissed holding that the said date was the last date for hearing. 4. Mr. Talukdar, learned counsel for the petitioner submits that there is a difference between the civil proceeding and criminal proceeding. In a civil proceeding Court has the power under Order 9 Rule 8 of Civil Procedure Code to dismiss a suit for default but in a criminal proceeding there is no such power with the Court to dismiss a criminal case. In a criminal case, in absence of lawyer of the accused neither the case nor the appeal can be dismissed on the ground of default. In support of his contention, he placed reliance on Sukur Ali Vs. State of Assam reported in 2011 (2) GLT (SC) 26, wherein the Apex Court has held that adjudication of criminal appeal in absence of defence counsel is not proper. He also submits that in the said judgment the Apex Court also observed that if defence counsel is not present then it is the duty of the Court to engage any other lawyer to defend the accused person since an accused has the right to be defended by a lawyer. 5. Mr. Sinha, learned Addl. PP also conceded to the submissions of Mr. Talukdar. 6. After perusal of the impugned order this Court has no other alternative except to express its disapproval to the action of the learned Sessions Judge, Dhemaji. The learned Sessions Judge is highest authority in the district so far the function in judicial side is concerned. 5. Mr. Sinha, learned Addl. PP also conceded to the submissions of Mr. Talukdar. 6. After perusal of the impugned order this Court has no other alternative except to express its disapproval to the action of the learned Sessions Judge, Dhemaji. The learned Sessions Judge is highest authority in the district so far the function in judicial side is concerned. By this time, it is settled that the framer of the Constitution of India in Article 39-A specifically mentioned that State shall secure free legal aid to the accused when he is not defended by his engaged counsel only to protect the principle of equal justice. Another object of Article 39-A is to see that no citizen should be denied his right to get justice from a Court of law. Under Section 304 of the Code of Criminal Procedure ('CrPC' for short), the legislature has also entrusted the duty upon the Court of Sessions to provide lawyer to an accused not defended by a lawyer of his own choice at the expense of the State. 7. In the instant case, the learned Sessions Judge, Dhemaji while passing the impugned order, inter alia, dismissed the appeal for appellants's default, even did not explain the reasons for not providing the counsel to the appellant accused at the State's expense. In Sukur Ali (supra), the Apex Court also considered an English case namely, Gideon Vs. Wainwright, (1963) 372 US 335 , wherein Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed: Lawyers in criminal Courts are necessities, not luxuries. In para 18 of Sukur Ali (supra), their Lordships of the Apex Court noted inter alia that: we reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curare and decide the case after fixing another date and hearing him. 8. In view of the above findings of Apex Court, this Court is in full agreement with the submission of the learned counsel for the petitioner that there is a difference between the civil proceeding and criminal proceeding. 8. In view of the above findings of Apex Court, this Court is in full agreement with the submission of the learned counsel for the petitioner that there is a difference between the civil proceeding and criminal proceeding. In a civil proceeding, Court is normally exercising its power under Civil Procedure Code wherein the legislature empowered the Court to dismiss a proceeding for default but in a Criminal proceeding there is no such provision on that aspect, meaning thereby that the legislature thought it fit not to arm a criminal Court with the power to dismiss a criminal proceeding in absence of lawyer of accused, as in a criminal justice system, it is the duty of the State to provide legal aid in view of the provisions of Article 39A if Constitution and Section 304 of the CrPC. 9. In the instant case, it also appears from the impugned order that the learned appellate Court failed to consider that aspect, far from engaging a lawyer. In view of the above, there is no other option except to set aside the order passed by the learned Sessions Judge, Dhemaji as impugned herein. Accordingly, it is ordered. 10. The petitioner is directed to appear before the learned Sessions Judge, Dhemaji on 26.09.2011 and the learned Sessions Judge, on appearance of the accused petitioner, shall fix a date for hearing of the appeal on merit. 11. Accordingly, the revision petition is allowed and disposed of.