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2012 DIGILAW 448 (UTT)

RAM SINGH BISHT v. LALIT PRASAD PANDEY

2012-08-01

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta , J. By way of this revision, a prayer has been made to set aside the judgment and order dated 6.11.2008 passed by the Sessions Judge, Champawat, which was rendered in criminal appeal no.7 of 2005, Lalit Prasad Pandey Vs. Ram Singh Bisht. 2. In brief, the facts of the case are that respondent no.1 Lalit Prasad Pandey is the correspondent of a local newspaper known as ‘Paharon Ke Jharokhe Se’, who reported a news item on 16.8.1999 which contemplated an alleged defamation of the revisionist Ram Singh Bisht, a local advocate of District Champawat. After exchange of notices from either parties to each other, a complaint was instituted by the revisionist in the court of Judicial Magistrate which culminated into the conviction and sentence of the private respondent u/s 500 of the IPC for one year’s R.I. with fine of Rs.1,000/-, in default of which, to undergo three months’ additional simple imprisonment. The said judgment of learned Judicial Magistrate dated 9.2.2005 was assailed which was set aside vide judgment and order dated 6.11.2008, rendered by learned Sessions Judge, Champawat in criminal appeal no.7 of 2005 and the entire matter was remanded back to the court of Magistrate concerned with a direction to provide fresh opportunity to the parties for adducing their evidence in the court and also to provide an opportunity to the private respondent for engagement of some counsel to defend himself. The judgment of the appellate court was based on the reasoning that the private respondent could not engage any counsel, inasmuch as, the revisionist was a Secretary/ President of the Bar Association at the relevant time, much more a simple advocate there, and thus, on account of his influence, no counsel could be ready and available to defend him. Besides, the Bar Association of Champawat had passed a resolution condemning the private respondent for his attitude and behaviour towards the revisionist, who was a local advocate of that place. Because of this resolution, notwithstanding the ‘Vakalatnamas’ by two advocates, on his behalf, were filed but none came forward in the court to defend him. 3. Besides, the Bar Association of Champawat had passed a resolution condemning the private respondent for his attitude and behaviour towards the revisionist, who was a local advocate of that place. Because of this resolution, notwithstanding the ‘Vakalatnamas’ by two advocates, on his behalf, were filed but none came forward in the court to defend him. 3. Learned counsel for the revisionist has drawn the attention of this Court towards the order sheet of the trial court dated 21.5.2002 whereby the learned Magistrate asked the private respondent whether he wanted to be defended by any advocate, or engagement of some advocate at the cost of government, but Sri Lalit Prasad Pandey refused categorically that he need not to be defended by any advocate. 4. This argument put forth by learned counsel for the revisionist albeit has some force but at the same time, the Court cannot be oblivious to the factual circumstances, which in fact had created an atmosphere of total hostility among all the members of the legal profession against the respondent. 5. This Court has also gone through the matter adverted in the newspaper as well as various other articles of the magazine, as are available on the record and finds that editor of the said magazine was the private respondent himself. This all publication is enough to manifest that the respondent is/was a man of extreme self respect and when such a person faced the prosecution in the court of Magistrate, which was launched by none other but the Secretary/President of the local bar association coupled with a resolution of bar condemning him, then he thought it better in a momentary passion of self respect to deny the offer of the Magistrate. It was probably for the reasons that firstly, he could contemplate that even if he answers in affirmative, in that case also, no advocate would come forward to defend him against the revisionist. On the other hand, if some counsel comes forward on his behalf, then also, his self-respect would be in jeopardy to stand before the said advocate always with folded hands and begging mercy of that Advocate all through the trial. Thus, these were the reasons probably the respondent could not understand the intricacies of his denial to engage a counsel at the offer of Magistrate on 21.5.2002. 6. Thus, these were the reasons probably the respondent could not understand the intricacies of his denial to engage a counsel at the offer of Magistrate on 21.5.2002. 6. Learned senior counsel, in his support, cited a precedent of Hon’ble Apex Court in the case of “Md. Sukur Ali Vs. State of Assam reported in 2011 (2) Supreme 265 ”, wherein the Apex Court has firmly opined that a criminal case should not be decided against the accused in the absence of his counsel. A similar view was taken by the U.S. Supreme Court in “Powell Vs. Alabama reported in 287 US 45 (1932)” in which it was observed as under: - “What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”. 7. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”. 7. Therefore, in view of what has been stated above, the Court feels that this revision has got no force which is liable to be dismissed. The revision is, accordingly, dismissed. Interim order dated 16.12.2008 is hereby vacated. Let the entire record along with a copy of the judgment, be sent back to the trial court concerned for proceeding ahead with the trial in compliance of the judgment and order dated 6.11.2008 passed by the Sessions Judge, Champawat.