Mohd. Miraz @ Munna vs State (Not Of Delhi)
2000 Latest Caselaw 1288 Del

ORDER

Usha Mehra, J.

1. A person accused of an offence, which involves life imprisonment or jeoparding his personal liberty, has a fundamental right of free legal assistance at State expense. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 of the Constitution of Indian. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that they were entitled to obtain free legal assistance which resulted in the accused remaining unrepresented by a lawyer in the Court is clearly a violation of the fundamental right of the accused under Article 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity. It is so said by the Apex Court in the case of Suk Das and another V. Union Territory of Arunachal Pradesh .

2. Keeping the above principle of law in view, we have to appreciate the preliminary objection raised by Mr. P.K. Sharma, the amices Curiae for the appellant. Thrice amices Curiae was appointed but record is silent as to whether the said counsel conducted the case for the appellant. It is in this backdrop we have to see whether appeal of the appellant Mohd. Miraz on this reason can be accepted.

3. Facts of the case are that Mohd. Miraz appellant herein was married and had eight children. The eldest amongst them was Km. Sabana. He had differences with his wife, who had left his house and gone to her mother along with four children. Km. Sabana, her brother and sisters remained with the appellant. Km. Sabana was 16 years old at that time. Allegation of the prosecution was that on the night of 22nd December, 1990 her father the appellant herein tried to harass her. He pulled her hair as well as legs and tried to catch hold of her. In the morning when landlord's brother came and enquired from the appellant as to why Km. Sabana was weeping, appellant told him that she was remembering her mother. Again on the night of 23rd December, 1990 this appellant over-powered her and threatened that he would strangulate her brother and sister if she did not agree to his lust. He would forcibly do the act against her wishes. On the night of 23rd December, 1990 at about 10.00 P.M. or 10.30 P.M. while she was watching TV Serial with her brother and sister accused gave her tablet to eat as she was feeling "Hichki". After eating that tablet she became drowsy and slept. It was at that time the appellant caught hold of her hand and pulled her towards one side and made her sleep with him. When her younger sister got up and cried this appellant slept her and made her to sleep. Km. Sabana was wearing Salwar-Suit. He united the "Nara" of her Salwar and when she tried to cry he put his hand on her mouth. He raped her twice on that date, one at night and other time in the small hour of the morning.

4.In the morning of 24th December, 1990 she along with her brother and sister were removed in the three-wheeler scooter by this appellant to Patparganj Mod. He left them there to have their way to the house of her maternal grand mother where her mother was residing i.e. at Kucha Pandit. She narrated the incident to her mother who took her to Police Post Trilok Puri. There she lodged the complaint. Her statement under Section 164, Cr. P.C. was also recorded by the Magistrate. After investigation the appellant was arrested and challan was put up. This appellant was committed to the Court of Sessions.

5. After the committal, the proceedings started before the learned Addl. Sessions Judge. At the time of framing the charge the accused requested for the assistance of a counsel at State expense. Accordingly Mr. R.K. Srivastava, Advocate was appointed amices Curiae, and thereafter case was listed for framing of the charge on 4th March, 1992. Perusal of the trial court record shows that at the time of framing the charge no counsel was present on behalf of the accused. The charge was framed without the assistance of a counsel to the accused. Thereafter the case was put up for prosecution evidence on 4th July, 1992 (Though on the file it is recorded as 4th July, 1991). Since Mr. R.K. Srivastava, Advocate did not put in appearance hence the Addl. Sessions Judge on the request of the accused who was in judicial custody, provided another counsel at State expense. Shri Surender Kumar Sharma was appointed as amices curiae. It has been mentioned in the proceedings by the Addl. Sessions Judge that he had taken note of the fact that Mr. R.K. Srivastava had been appointed as amices Curiae. Since Mr. R.K. Srivastava did not appear, therefore, Mr. S.K. Sharma was appointed. Perusal of the file shows that attendance of Mr. S.K. Sharma has not been marked on any of the subsequent dates of the proceedings. The accused was in judicial custody through out.

6. The case was thereafter transferred from Patiala House Courts to the Addl. Sessions Judge at Karkardooma on 7th July, 1993. The Addl. Sessions Judge at Karkardooma on the request of accused appointed another amices Curiae namely Mr. J.P. Singh vide order dated 18th, Fabruary, 1994. He then fixed the case for prosecution evidence. Perusal of the record further depicts that as many as eight witnesses had been examined but counsel for the accused was not present on any of the hearings. The proceedings do not show that the accused was represented by a counsel. For this reason Mr. Pawan Sharma, amices Curiae for the appellant contended that trial stood vitiated. Offence for which the appellant was charged involved life imprisonment and had the effect of jeoparding his liberty, therefore, proceeding with the trial without the legal assistance to the accused vitiated the trial and consequently the conviction and the sentence based on the same.

7. On the other hand Mr. Ahluwalia drew our attention to the testimony of PW-2 and PW-3 to show that the cross-examination of these two witnesses was done on behalf of the accused by a counsel. This according to him shows that legal assistance was available to the accused. amices Curiae conducted the cross examination. on his behalf. We are unable to accept this argument of Mr. Ahluwalia. From the use of the words "Cross examination on behalf of the accused" does not suggest that it was conducted by a lawyer. "On behalf of" could be by any one. If the cross examination of PW-2 & and PW-3 had been by a lawyer, the Court would have mentioned so. Not only it is not so recorded even in the proceedings of that day presence of the counsel for the accused had not been recorded. Had any counsel been present his presence in the proceedings would have been marked. But that is not so on the record. Therefore, it can safely be concluded that the learned Addl. Sessions Judge who recorded the evidence and ultimately the Addl. Sessions Judge who delivered the judgment did not care to note or realise that the accused was without the legal assistance of a counsel. The accused on every bearing had been asking for the assistance of a counsel at State expense. amices Curiae was in fact appointed thrice but they did not care to appear and the learned Addl. Sessions Judges also did not bother to ensure their presence at the time of proceeding with the trial and recording of the evidence. This is an unfortunate state of affair. We must pen down our anguish over the slipshod manner the trial in this case had been conducted. We want to emphasise even at the risk of repetition that all Sessions Judges must ensure particularly when the life or personal liberty of an accused ins in jeopardy that he must get legal assistance at the State expense. Conviction reached without giving such assistance cannot be sustained. It stood vitiated as it was rendered in violation of Article 21 of the Constitution of India.

8. Unfortunately, in this case in spite of there being overwhelming evidence. We are not in a position to decide the case on merits because of the technical flaw committed by the Addl. Sessions Judge. We also thought of remanding the case back but then found that the appellant has already spent about 9 years 7 months and 8 days in custody. Hence keeping this fact in view we decided otherwise because no useful purpose will be served in remanding the case for fresh trial. Faced with this situation and with heavy heart we are accepting this appeal.

9. Appeal is allowed. Conviction and the sentence are accordingly set aside. Appellant be set at liberty if not required in any other case. But before parting we want to convey our appreciation for the valuable assistance rendered by Mr. P.K. Sharma. Advocate, who was appointed as amices Curiae for the appellant in this case. Order be conveyed to the appellant through the Superintendent, Central Jail, Tihar.