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2019 DIGILAW 531 (ORI)

Ashok Majhi v. State of Orissa

2019-08-16

A.K.MISHRA, S.K.MISHRA

body2019
ORDER : 1. At stake is the procedure adopted in a criminal trial by the learned Addl. Sessions Judge, Sundargarh in convicting the appellant under section 302/34 IPC and passing sentence of life imprisonment in ST. Case No. 62/60 of 2013. Because, the fair trial has not been given fair deal resulting the denial of right to accused to be defended by an advocate of his choice as mandated under Section 303 Cr.P.C. Outlining the core of context in the memorandum of appeal, we proceed to hear the appeal on merit. 2. Heard Mr. S.S. Ray learned counsel for the appellant who filed memo of appearance in the court today. The same be kept on record. We have also heard Mr. Sk. Zafarulla, learned counsel for the informant and Addl. Govt. Advocate, Mr. J. Katikia. 3. Perused the impugned judgment and the lower court record. The conviction and sentence having been challenged for want of fair trial, the facts need to be narrated in nutshell to address the same. Learned counsel for the appellant Mr. Ray assails the conviction and sentence of the appellant on the ground that the Right to Defence has been violated and thereby the appellant-accused is deprived of getting fair trial. He relied upon a decision reported in AIR 2012 SC 750 Md. Hussain @ Julfikar Ali Vs. State (Govt. of NCT) Delhi. The appellant as an accused faced trial for the charge under section 302/34 IPC, Section 25(1-B)(a) and Section 27(1) of the Arms Act. The accusation against him was that on 21.5.2011 at 8.30 a.m. at Barangakhol forest chowk he committed murder of one Madha Minz by means of Gainti and fire-arms in furtherance of common intention with others. On 20.06.2014, the accused did not plead guilty to the charges and also prayed the court that as he had no means to engage private defence, State defence counsel should be engaged to defend him. Accordingly, advocate Sri S. Panigrahi was appointed as State Defence Counsel by the learned Addl. Sessions Judge, Sundergarh. The trial was ensued, 10 witnesses were examined. 3.a On 11.11.2016, the statement of accused under Section 313 Cr.P.C. was recorded. On the prayer of learned State Defence Counsel, P.W. 8 was recalled for further cross-examination. It was completed on 21.01.2017. On 27.01.2017, the learned State Defence Counsel filed memo closing the defence evidence. Sessions Judge, Sundergarh. The trial was ensued, 10 witnesses were examined. 3.a On 11.11.2016, the statement of accused under Section 313 Cr.P.C. was recorded. On the prayer of learned State Defence Counsel, P.W. 8 was recalled for further cross-examination. It was completed on 21.01.2017. On 27.01.2017, the learned State Defence Counsel filed memo closing the defence evidence. On 3.2.2017, on being engaged by accused in custody, leaned advocate, Sri S.K. Mohapatra and others filed Vakalatnama. On that date petition under section 311 Cr.P.C. was also filed to recall P.W. 7 and the same was rejected. The case was posted for argument. Thereafter the trial suffered three adjournments. On 22.2.2017, accused was not produced. Neither the defence counsel nor Addl. Public Prosecutor appeared in the court. On 2.3.2017, the accused was produced from custody but learned Defence Counsel did not turn up for argument. On 16.3.2017, a petition was filed for adjournment of the case and to provide a Legal Aid Counsel to argue the case of accused. On 17.3.2017, after hearing the accused, the case was posted to 21.3.2017 for argument. It was mentioned on that date in the order sheet that "since the local Bar Members have boycotted this court neither the Addl P.P. nor the defence counsel and Legal Aid Counsel turn up to the court to conduct the case of the accused. However, the accused is directed to come on the date fixed for argument positively." On 21.3.2017, accused was produced from custody and filed a petition for adjournment and the case was again adjourned to 23.3.2017 for hearing of argument. On that date again it was adjourned to 27.3.2017. On that date the accused expressed his inability to argue the case but the case was posted for judgment to the next date. On the next date, i.e., 28.3.2017 the accused filed a petition for time on the ground that advocates of the Bar were not turning up but the learned Addl. Sessions Judge did not allow further time and rejected the prayer. Thereafter, the judgment was pronounced convicting the accused-appellant under section 302/34 IPC while acquitting him of the offences under Section 25(1-B)(a) and Section 27(1) of the Arms Act. 3.b On the next date, hearing on sentence was heard from convict in absence of defence lawyer and Addl. P.P. and convict was sentence to undergo imprisonment for life with a fine of Rs. 3.b On the next date, hearing on sentence was heard from convict in absence of defence lawyer and Addl. P.P. and convict was sentence to undergo imprisonment for life with a fine of Rs. 25,000/- (rupees twenty five thousand), in default to further undergo R.I. for one year. Learned Addl. Sessions Judge, also directed that the sentences" for life shall be considered as not less than 25 years of R.I. and in case the State desires to remit the sentence the same might be considered only after 20 years. It is pertinent to note that the judgment has also contained the following observation:- "At the end of the trial the accused-convict had became defence less due to absence of lawyers and Addl. P.P. as well. A defence less convict should not be awarded with extreme penalty. The prosecution may agitate the matter before the Hon'ble High Court by filing appeal for enhancement of sentence" 4. The order sheet in detail and observation of the trial judge in the judgment leave no scope to doubt that the accused who was facing trial was deprived of getting fair and impartial trial. He has right to be defended under law, regardless of merit of the case. 5. Learned counsel for informant, Mr. Zafarulla and learned Addl. Govt. Advocate, Mr. Katikia submit that accused was involved in number of cases. Such contention bears no merit to take away the right of fair and impartial trial of an accused in a trial Under constitution such right is absolute and the court guards it jealously. 5 6. In the decision cited by learned counsel for the appellant in Md. Hussain Case (Supra), the Hon'ble Apex Court has also elucidated the above principle. It is stated therein that:- '"11. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. xxxxx xxxxxx xxxxxxx 17. The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result, the accused charged with a serious offence must not be stripped of his valuable right of a fair ad impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. The Code of Criminal Procedure provides that in all criminal prosecutions, the accused has a right to have the assistance of a Counsel and the Code of Criminal Procedure. Also requires the court in all criminal cases, where the accused is unable to engage Counsel, to appoint a Counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a Counsel during the trial and such designation of Counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the Court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a Counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The necessity of Counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a Counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Code of Criminal Procedure." 7. Keeping the said law in view, we are persuaded in the facts of the case to order for retrial in exercise of powers of Appellate Court under Section 386 Cr.P.C. Hence, it is ordered:- The conviction and sentence of appellant in S.T. Case No. 62/60 of 2013 is set aside. The case is remitted back for retrial by the court of Addl. Sessions Judge, Sundergarh but the retrial would be taken up from the stage of defence. LCRs be returned immediately. With the above observation and direction the CRLA stands disposed of.