Bombay High Court

Narayan Annaji Vairagade vs The State Of Maharashtra Thr. Pso ... on 5 January, 2018

Bench: R. B. Deo

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                    CRIMINAL APPEAL NO. 484 OF 2006

 Narayan Annaji Vairagade,
 aged 32 years,
 R/o. Mukundwadi, Bhimnagar,
 Old City, Akola                                                         ..APPELLANT


          ...V E R S U S...


 The State of Maharashtra, 
 through Police Station Officer,
 Police Station City Kotwali
 Akola                                                               ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. Vinay Dahat, advocate for appellant.
 Mr. N.H. Joshi, Additional Public Prosecutor for the respondent.
 -----------------------------------------------------------------------------------------

                                           CORAM:    ROHIT B. DEO, J.

DATE OF DECISION: 05.01.2018

ORAL JUDGMENT

Challenge is to the judgment and order dated

14.7.2006 rendered by the Additional Sessions Judge, Akola in

Sessions Trial 38 of 2004, by and under which, the appellant -

accused is convicted for offence punishable under section 324 of

the Indian Penal Code (IPC) and is sentenced to suffer rigorous

imprisonment for one year and to payment of fine of Rs. 500/-.

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 2                Heard Shri Vinay Dahat, the learned advocate for the

accused and Shri N.H. Joshi, the learned Additional Public

Prosecutor for the State.

3 In view of the order which I propose to make, it

would suffice if only the minimal essential facts are stated.

The accused faced trial alongwith three others for offence

under section 307 read with section 34 of Indian Penal Code,

under section 4/25 of the Arms Act, under section 135 of Bombay

Police Act and alternatively under section 307 read with section

109 of Indian Penal Code. The case of the prosecution is, that at

the behest of the co-accused, who incidentally are acquitted, the

accused assaulted one Rahim Khan (PW 1) with a dagger. The

injured PW 1 Rahim Khan took the accused alongwith the dagger

to the police station and lodged report Exh. 33.

5 The learned Sessions Judge, was pleased to acquit the

co-accused who allegedly hired the services of the accused and

convicted the accused for offence punishable under section 324 of

IPC as aforestated.

6 The short submission of the learned advocate for the

accused Shri Vinjay Dahat is that the accused was deprived of a

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fair trial since he could not cross examine the only material

witnesses to wit PW 1 complainant and PW 2 Dr. Ramesh Khatri

since he was not represented by advocate as the learned Sessions

judge rejected application Exh. 29 seeking legal aid.

7 The facts are disconcerting and indeed painful. The

accused was represented by advocate Dildar Khan and advocate

Laxman Delhiwale, who filed on record Vakalatnama even prior to

the framing of charge. For reasons inexplicable, the said

advocates chose not to represent the accused. The accused

preferred an application Exh 29 seeking legal aid, which

application was rejected by the learned Sessions judge by order

dated 15.6.2004. The rejection is on the ground that the accused

has engaged two lawyers namely Shri. Mohta and Shri Dildar

Khan.

8 The evidence of PW 1 Rahim Khan and PW 2 Dr.

Ramesh Khatri was recorded on 10.7.2006. The accused was

called upon to personally cross examine PW 1 and PW 2 and the

accused declined to do so. The accused again moved an

application Exh 38 dated 11.7.2006 reiterating the prayer for legal

aid, which application was dismissed on the ground that a similar

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application was earlier rejected.

9 Strangely, the counsel who chose not to appear for

the accused on the crucial date of hearing on which the two

material witnesses were examined, decided to appear for the

accused on 11.7.2006 and has cross examined the prosecution

witnesses examined on 11.7.2006. PW 2 was a material witness

since according to the defence the accused had suffered injuries.

Be that as it may, an application under section 311 of Code of

Criminal Procedure seeking recall of PW 1 and PW 2 (Exh 51) was

preferred by the accused on 11.7.2006, which application was

rejected by the learned Sessions Judge on the ground that the

accused declined to avail the opportunity to personally cross

examine PW 1 and PW 2.

It is in these circumstances, that the evidence of PW 1 and

PW 2 has gone unchallenged.

10 I am impelled to observe, albeit with some reluctance

and with great pain, that the learned Sessions Judge was not alive

to the Constitutional philosophy underlying Article 22 of the

Constitution of India and the jurisprudential and legislative logic

in enacting section 304 of the Code of Criminal Procedure, 1973.

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 11               The accused could not have been denied legal aid on

the ground that two advocates were engaged by the accused. The

two advocates who were engaged did not represent the accused on

the fateful day or rather refused to represent the accused although

they did appear on behalf of the co-accused. The learned Sessions

Judge has not recorded a finding, that he was satisfied that the

accused had sufficient means to engage a pleader. Even if it is

assumed, arguendo, that the accused was in a position to engage

advocate, the approach of the learned Sessions Judge was clearly

pedantic. Clearly, for reasons best known to the advocates, they

failed to, or rather refused to, represent the accused when PW 1

and PW 2 were examined on 10.7.2006. The cross examination

could have been postponed. To insist that the accused must

personally cross examine the material witnesses is to deprive the

accused of the Constitutional right guaranteed under Article 21 of

the Constitution of India. The Apex Court observes in Khatri

Singh Vs. State of Bihar, AIR 1981 SCC 928 that right to free

legal aid is an essential ingredient of a reasonable, fair and just

procedure and such right emanates from the fundamental right

under Article 21 of the Constitution.

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 12                 The learned Sessions Judge was further oblivious of

the Constitutional philosophy underlying Article 22(1), which

reads thus:

"22(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of is choice".

7 The Constitutional philosophy pervading in Article 21

and 22 of the Constitution is statutory recognized in section 304 of

the Code of Criminal Procedure, which reads thus:-

"304 - 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.

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Prima facie, I was of the opinion, that the learned advocate

who refused to appear for the accused on 10.7.2006 deserves to

be reported to the Bar Council for professional misconduct.

However, the learned advocate did make amends by moving an

application dated 11.7.2006 seeking indulgence of the Court

under section 311 of the Code of Criminal Procedure, which

application was unfortunately rejected by the learned Sessions

Judge. I have, therefore, refrained from taking my prima facie

opinion to the logical end.

8 However, the conscious of this Court is satisfied that

the judgment of conviction has occasioned a serious miscarriage of

justice. A fair trial is an integral facet of the right guaranteed

under Article 21 of the Constitution of India. Right to legal aid is

explicitly statutorily recognized and is implicit in the right to legal

assistance enshrined in Article 22 of the Constitution.