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2015 DIGILAW 691 (ALL)

BHAGWAN DAS v. STATE OF U. P.

2015-04-03

MANOJ MISRA

body2015
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the applicant; the learned A.G.A. for the State and perused the record. The instant application has been filed by an accused facing trial for offences punishable under Sections 363, 366 and 376 IPC for quashing of an order dated 4.2.2015 passed by the Additional Sessions Judge (Fast Track Court), Budaun in Session Trial No. 523 of 2012 (State v. Bhagwan Das) by which the application of the applicant for recall of the witnesses (P.W.1 to P.W.6) for cross-examination, has been rejected. 2. The case of the applicant is that in connection with the aforesaid offences he was arrested and bailed out, but, thereafter, he was again arrested in another case and had to remain in jail from 25.9.2012 to 15.11.2014 in which period the trial proceeded and prosecution witnesses i.e. PW1 to PW6 were examined whereas no counsel appeared on his behalf to cross-examine them, as a result, the prosecution evidence was closed. It his case that though, earlier, counsels were engaged by him but no one appeared on his behalf to cross-examine the witnesses because the applicant having been languishing in jail was unable to pay their fees and there was no one available to do pairvi on his behalf as his father had already died. It was thus prayed that as the applicant has now been bailed out and is in a position to engage counsel, the witnesses be recalled and the applicant be allowed to cross-examine them. 3. The Court below rejected the application by observing that there were counsels who had filed their power (vakalatnama) on behalf of the applicant but they did not appear to cross-examine; and as no prayer was made by the applicant to appoint an amicus curiae, it cannot be said that sufficient opportunity was not given to him to cross-examine the witnesses and, as such, the plea to recall the witnesses is only to delay the conclusion of the trial, therefore was worthy of rejection. The trial Court, however, neither recorded any finding that at the time when the trial proceeded and witnesses were examined, the accused was not languishing in jail nor it observed that services of an amicus curiae was offered by the Court to the applicant which he consciously refused to avail. 4. The trial Court, however, neither recorded any finding that at the time when the trial proceeded and witnesses were examined, the accused was not languishing in jail nor it observed that services of an amicus curiae was offered by the Court to the applicant which he consciously refused to avail. 4. Challenging the order passed by the Court below, the learned counsel for the applicant submitted that every accused has a right to be represented by a lawyer at the commencement of the trial and during the course of the trial and it is the constitutional duty of the Court to provide him with a lawyer. It has been submitted that as the counsel engaged by the applicant had not appeared to conduct cross-examination and the applicant had not waived his right to be represented by a lawyer, the trial Court was under an obligation to appoint an amicus curiae to represent the applicant to cross-examine the witnesses. It has been submitted that mere not asking for being represented by a lawyer would not absolve the Court from its constitutional duty of appointing an amicus curiae to represent the accused unless the accused consciously refuses to be represented and takes upon himself the mantle of a cross-examiner. In support of his submission, the learned counsel for the applicant has cited before the Court a landmark judgment of the Apex Court in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharastra, 2012 (9) SCC 1 , where, in paragraphs 474 and 477 of the report, the Apex Court had observed as follows : “474. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings. 477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the Court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh 97).” 5. The learned AGA though sought to support the lower Court order but could not point out any binding legal precedent holding to the contrary than what has been cited by the learned counsel for the applicant. 6. Having considered the submissions of the learned counsel for the parties, this Court is of the view that right to cross-examine the prosecution witnesses is a very valuable right of an accused and should not mechanically or casually be forfeited unless there are compelling reasons justifying the same. Where the accused is languishing in jail and is not being represented by a counsel or though a counsel has put in appearance but fails to appear to provide any assistance to the accused, it is the duty of the Court to appoint an amicus curiae to represent the accused unless the accused in clear and unambiguous words refuses to take his service and chooses to defend himself personally. 7. In the instant case, admittedly all the prosecution witnesses have gone without cross-examination. 7. In the instant case, admittedly all the prosecution witnesses have gone without cross-examination. The Court also finds that there is nothing in the order impugned to suggest that the counsel engaged by the applicant to appear on his behalf was present at the time of examination in chief but had consciously refused to cross-examine the witness. There is also nothing in the order impugned to suggest that services of an amicus curiae was offered to the applicant by the Court which he consciously refused to avail. It is also not in dispute that the applicant was languishing in jail at the time when the witnesses were examined. Under the circumstances, this Court is of the view that the order rejecting the application for recall of the prosecution witnesses suffers from legal infirmity and is liable to be set aside. The impugned order dated 4.2.2015 is set aside. The matter is remitted back to the Court concerned to pass a fresh order on the application of the applicant for recall of the witnesses keeping in mind the observations made herein above. The application stands allowed to the extent indicated above. Office is directed to send a copy of this order to the Court concerned, within two weeks, for compliance. ——————