Anil Kumar vs State
2017 Latest Caselaw 1729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. -44
 
Case :- JAIL APPEAL No. - 6300 of 2011
 

 
Appellant :- Anil Kumar
 
Respondent :- State
 
Counsel for Appellant :- From Jail,M.B.Mathur AMICUS CURIAE
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Oral by Hon'ble Bharat Bhushan,J.)

1. Anil Kumar, sole appellant in the instant appeal, was charged under section 498-A of the Indian Penal Code 1860 (in short "IPC"), 304-B IPC, alternatively under section 302 IPC and section 4 of the Dowry Prohibition Act 1961 (in short "D.P. Act") on 03.03.2011 for murder of his wife Smt. Tara Devi.

2. During the course of trial as many as eight witnesses were produced by prosecution. Statement of appellant was recorded under section 313 of the Code of Criminal Procedure 1973 (in short "Cr.P.C."). No defence was given.

3. On conclusion of trial, appellant Anil Kumar was convicted under section 302 IPC and 498-A IPC. However, he was acquitted by the trial Judge under sections 304-B IPC and 4 D.P. Act. Appellant was sentenced to life imprisonment and a fine of Rs. 10,000/- with default stipulations under section 302 IPC and three years rigorous imprisonment (?R.I.) and a fine of Rs. 5000/- under section 498-A IPC. All sentences were ordered to run concurrently by impugned judgment dated 28.07.2011.

4. Present Jail Appeal has been instituted against aforesaid judgment. Sri Mohit Behari Mathur, Advocate was appointed Amicus Curiae by coordinate Bench of the Court. However, today one Advocate Sri Shailesh Kumar, Advocate has also filed power, which is taken on record.

5. Learned Amicus Curiae has pointed out a fatal flaw in the trial of appellant Anil Kumar. He has submitted that as many as eight witnesses namely; P.W. -1 Lallan Prasad (father of the deceased), P.W.-2 Chote Lal (uncle of deceased), P.W.-3 Smt. Prabhawati Devi (mother of the deceased), P.W.-4 Dr. JP Tripathi (conducted autopsy), P.W. 5 Ramesh Chandra (supervised inquest proceedings and recorded dying declaration), P.W.-6 Akhilesh Ram (recorded FIR), P.W.-7 Sub Inspector (S.I.) Devta Nand Singh (conducted investigation) and P.W.-8 Dr. Shyam Narayan Prasad were produced by the prosecution but not a single witness was cross-examined by any counsel for defence or by accused himself.

6. We have perused the record. Evidently, the examination-in-chief of eight witnesses was recorded and thereafter a brief and bald endorsement was made that no cross-examination was conducted despite opportunity given to the appellant.

7. A brief mention in this regard has been made in the impugned judgment wherein it was acknowledged that no advocate appeared on behalf of appellant during trial. Accused perhaps declined to appoint advocate. Order sheet of trial record, also does not disclose under what circumstance a legal assistance could not be provided to the accused but one thing is quite clear that no legal assistance was available or provided to the appellant. No cross-examination was, in fact, conducted in a trial involving serious offences entailing death sentence.

8. We feel that gravity of offences and possible punishments with which the appellant may be sentenced in such case are relevant and significant issues to be kept in mind. We believe that appellant was denied a due process of law and trial held against him was contrary to procedures prescribed under the provisions of Cr. P.C., as appellant was not provided any legal assistance.

9. It is pertinent to point out that Article 39-A of the Constitution of India provides that State shall provide free legal aid. It is not an empty formality. State is obliged to provide effective legal assistance.

10. Section 303 Cr.P.C., confers right upon any person accused of an offence before criminal court, to be defended by a pleader of his choice.

11. Section 304 Cr.P.C., mandates legal aid to accused at State's expense in a trial before court of sessions where accused is not represented by attorney.

12. It would be pertinent to reproduce both sections 303 and 304 Cr.P.C herein below:

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.

Section 304 Cr.P.C. Legal aid to accused at State expense in certain cases

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.

13. A bare perusal of aforesaid provisions would reveal that the provision of legal assistance is not mere an empty formality. It is mandatory for the State as well as trial court to provide legal assistance to the accused of criminal offence. The purpose of providing free and competent legal aid to the unrepresented accused person is to make sure that he or she gets fair trial.

14. The Apex Court in Hussain Ara Khatoon & others v. Home Secretary, State of Bihar (1980) 1 SCC 98 has laid down the policy and philosophy of free legal services to the poor. Relevant portion of the judgement reads as under:

"7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows:

39-A. Equal justice and free legal aid.- State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

25. This article also emphasises that free legal service is an unalienable element of 'reasonable, fair and just' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the undertrial prisoners charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such undertrial prisoners and if any application for bail is made, the Magistrate should dispose of the same in accordance with the broad outlines set out by us in our judgment dated February 12, 1979. The State Government will report to the High Court of Patna in compliance with this direction within a period of six weeks from today."

"9. We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across "law for the poor" rather than "law of the poor". The law is regarded by them as something mysterious and forbidding--always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services. We may remind the Government of the famous words of Mr. Justice Brennan Nothing rankles more in the human heart than a brooding sense of injustice, Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.

and also recall what was said by Leeman Abbot years ago in relation to affluent America:

"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the court room, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow."

We would, strongly, recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39-A."

15. Coming back to the facts of the present case, it is evident that Trial Judge failed to provide any legal assistance to the charged accused. We are surprised to see under what circumstances, the learned Judge failed to perform his legal duty mandated section 304 Cr.P.C.- when in catena of judicial pronouncements, this Court as well as of the Apex Court, have held that the purpose of providing free and competent aid to the undefended and unrepresented is to see that the accused gets free and fair, just and reasonable trial in a criminal case so as to build confidence of public in the judicial administration. Surprisingly, the trial judge did not resort to the provision of 165 of Indian Evidence Act 1872 (in short "Evidence Act"), either which empowers the judge to ask any question to the witnesses. Once if it was clear to the trial judge that no lawyer was representing the accused then at least the trial judge could have questioned the witnesses in order to discover or obtain proper proof of relevant facts.

16. Even the statement of accused under section 313 Cr.P.C., was recorded in perfunctory manner, which again is violation of several judicial pronouncements.

17. We have carefully perused all materials available on record. We are convinced that the impugned trial was vitiated because of lack of any legal assistance to the accused. We deem it expedient to remit the matter back to the trial court quashing the impugned judgement and order from the stage of charge for 'de-novo' trial.

18. We direct the Sessions Judge, Jaunpur to allot this session trial to any senior Additional Sessions Judge for 'de-novo' trial according to law. We also direct the concerned trial judge to decide the matter expeditiously, preferably not later than nine months after receiving this communication from High Court. We hope that the trial judge would provide efficient and sufficient free and competent legal aid to the accused under section 304 Cr.P.C., if he again fails to engage a counsel or pleader of his choice as mandatory in section 303 Cr.P.C. Accordingly, the impugned conviction and sentence shall stand quashed and set aside and the appeal shall stand allowed to the aforesaid extent.

19. The learned Amicus Curiae has pointed out that appellant has already spent more than seven years in jail and the 'de- novo' trial may take some more time, therefore, he has requested that appellant be enlarged on bail.

20. Considering all the facts and circumstances, we are in agreement with the request of the learned Amicus Curiae. Let the appellant Anil Kumar be enlarged on bail in Session Trial No. 13 of 2011 (State v. Anil Kumar) arising out of Case Crime No. 660 of 2010, under sections 498-A, 304-B, 302 IPC and 4 DP Act, P.S. Sarpateha, District Jaunpur on his furnishing two sureties of Rs. 10,000.00 each and a personal bond of like amount to the satisfaction of court concerned.

19. Learned Amicus Curiae Sri Mohit Behari Mathur has worked very diligently on this appeal. He has assisted this Court effectively. We direct Office to pay honorarium to the learned Amicus Curiae in accordance with Rules of the Court.

Order Date :- 16.6.2017

shailesh