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2019 DIGILAW 2547 (PNJ)

Rakesh v. State of Haryana

2019-09-13

HARI PAL VERMA

body2019
Judgment Mr. Hari Pal Verma, J. (Oral):-Petitioner has filed the present petition under Section 482Cr.P.C. for setting aside the impugned order dated 11.12.2017 (Annexure P-5) passed by learned Additional Sessions Judge, Gurgaon, wherebyapplication (Annexure P-4) filed by the petitioner under Section 311 Cr.P.C.seeking re-examination of the witnesses i.e. PW2-ASI Amandeep Kaur,PW6-Abdul Salam and PW7-Rashida Khatoon(complainant), wasdismissed. 2. Learned counsel for the petitioner has argued that there was noappointment of Legal Aid Counsel to defend the petitioner-accused or tocross-examine the witnesses. The petitioner-accused could not properlycross-examine the witnesses i.e. PW2, PW6 and PW7 as he was not beingrepresented by a counsel of his choice. The Court at his own wisdom hasappointed the Legal Aid Counsel, who without having gone into the facts ofthe case deeply and in the absence of any Power of Attorney executed by thepetitioner, has cross-examined these witnesses. He states that valuable rightof the petitioner is involved in the case and if the witnesses examined by theprosecution namely PW2, PW6 and PW7 are not being allowed to properlyre/cross-examine, the petitioner shall suffer badly and adversely. Moreover,no prejudice is going to be caused to the prosecution in case re-examinationof the aforesaid witnesses is allowed as it will clinch the real issue. 3. Learned State Counsel has argued that the petitioner had theample opportunities to cross-examine the aforesaid witnesses and thelearned trial Court has allowed the defence counsel to cross-examine thewitnesses and therefore, having recourse to the provisions of Legal ServicesAuthority Act, learned trial Court has appointed Mr. Arun Shokeen as acounsel in the case who has cross-examined the witnesses in the case. Hewas a Retainer being a Legal Aid Counsel and has duly cross-examinedthose witnesses. Power of Attorney is not required for Legal Aid Counselonce the Court has appointed the Legal Aid Counsel. Heard learned counsel for the parties. This Court on July 23, 2019 had passed the following order:- “A report dated 06.09.2018 has been received from learned Additional District & Sessions Judge, Gurgaon, which refers to the letter endorsement No.74 dated 17.01.2017 of learned Chief Judicial Magistrate-cum-Secretary-DLSA, Gurugram, whereby Sh. Arun Shokeen, Advocate from District Legal Services Autority, Gurugram was appointed as a retainer. Let a copy of letter dated 17.01.2017 and photocopy of the power of attorney if any executed by the petitioner in favour of Sh. Arun Shokeen, Advocate from District Legal Services Autority, Gurugram, be called for. Arun Shokeen, Advocate from District Legal Services Autority, Gurugram was appointed as a retainer. Let a copy of letter dated 17.01.2017 and photocopy of the power of attorney if any executed by the petitioner in favour of Sh. Arun Shokeen, Advocate from District Legal Services Autority, Gurugram, be called for. Office to intimate learned Additional District & Sessions Judge, Gurgaon, in this regard. List on 13.09.2019. Interim order to continue.” 4. Pursuant to the aforesaid order, a report has been received fromlearned Chief Judicial Magistrate-cum-Secretary, District Legal ServicesAuthority, Gurugram. As per communication dated 22.08.2019, Sh. ArunShokeen, Advocate, who is otherwise on the panel of District LegalServices Authority, Gurugram, was appointed as a Retainer. The saidcommunication is accompanied with the statement of Sh. Arun Shokeen,Advocate, who is on the panel of DLSA, Gurugram, which reads as under:- “Stated that in the month of January, 2017, I was appointed as Retainer and as per Schedule Court of Ms. Rajni Yadav, the then ASJ, Gurugram (POCSO Court/Children Court) also appointed as Remand Hour Counsel of POCSO Court. During the performance of duties, as per Legal Services Authority Act, I was called by Hon’ble Court for cross-examination of witnesses in concerned case file. Being Retainer, I performed my duty and no Power of Attorney or memo or any other document which can be consider as Power of Attorney on behalf of accused was executed or tendered by me.” 5. As per aforesaid report, there is no dispute that these witnesseswere cross-examined by Sh. Arun Shokeen, Advocate, in his capacity as aRetainer and he has performed his duties accordingly, but his statementfurther reflects that no Power of Attorney or Memo or any other documentwas executed on behalf of the accused. Accused has right to be representedby a pleader of his choice. 6. Though the allegations against the petitioner are serious, but inorder to have a fair trial and to have a proper opportunity to the petitionerand more particularly in consonance with Section 303 Cr.P.C., where anyperson who is accused of an offence has a right to be defended by a pleaderof his choice and considering the judgment of this Court in Anchi @ Hans Raj Versus State of Haryana, 2015(26) R.C.R. (Criminal) 64, this Courtfinds that the petitioner deserves to be given one opportunity to re/crossexamine the said witnesses. The relevant provision i.e. Section 303 Cr.P.C.reads as under:- “Section 303 Cr.P.C.- Right of person against whom proceedings are instituted to be defended:- Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.” 7. The photocopy of the record so produced by learned StateCounsel does reflect that earlier Sh. DPS Chauhan and Ms. Rakesh Kumari,Advocates, have represented the accused. Even the cross-examination ofthe witnesses reflects that Sh. Arun Shokeen, Advocate, has appearedthough these witnesses have been cross-examined by the defence counsel,however, in order to have a fair trial in the case and the petitioner being anaccused in the case, in the absence of any Power of Attorney, so executedby the petitioner-accused endorsing the appointment of Sh. Arun Shokeen,Advocate, and having recourse to Section 303 Cr.P.C., this Court finds thatthe petitioner be given one opportunity to re/cross-examine the witnessesi.e. PW2, PW6 and PW7. The petitioner is accordingly directed to makestatement before the trial Court specifically that he has authorized aparticular counsel on the next date of hearing. 8. In view of the above, the present petition is allowed and theimpugned order dated 11.12.2017 (Annexure P-5) passed by learnedAdditional Sessions Judge, Gurgaon, is hereby set aside and the petitioner isgranted one opportunity to re/cross-examine PW2, PW6 and PW7. 9. This Court has been apprised that the case is now fixed for26.09.2019 before the trial Court for defence evidence. Since the petitionerhas not been represented by a counsel of his choice, the petitioner shallmake a statement before the trial Court informing therein that the personnamed by him is the counsel for him to further re/cross-examine thewitnesses i.e. PW2-ASI Amandeep Kaur, PW6-Abdul Salam and PW7-Rashida Khatoon(complainant) and to represent him in the trial. However,under the garb of this order, petitioner shall not delay the proceedings in anymanner.