Accused Right To Cross Examination Could Not Be Closed On Account of Absence Of His Counsel; Duty Of Court To Provide Legal Aid Counsel: HP HC

While championing the dire need to protect accused legal rights, the Himachal Pradesh High Court just recently on October 7, 2020 in a latest, landmark and laudable judgment titled Lovely v. State of Himachal Pradesh in Cr. MP (M) No. 1395 of 2020 has minced no words to observe explicitly, effectively and elegantly that, “Right to cross-examine vested in the petitioner could not have been closed by learned Court below, on account of absence of his counsel, rather, in that situation, court should have provided some legal aid counsel to the accused.” There can be no quarrel with the irrefutable fact that this applauding judgment passed by a Single Judge Bench of Justice Sandeep Sharma of Himachal Pradesh High Court is really a shining example of exercise of inherent power by the High Court under Section 482 of the CrPC, in the interests of justice. All the courts must follow this in letter and spirit.

To start with, the ball is set rolling in para 1 of this oral order in which it is stated henceforth that, “Though by way of instant petition filed under S. 439 CrPC, prayer has been made on behalf of the petitioner for grant of regular bail in respect of FIR No. 293, dated 15.9.2016, registered at Police Station, Baddi, District Solan, Himachal Pradesh under Se. 376, 506 and 120B IPC and Ss. 4 and 17 of the Protection of Children from Sexual Offences Act but learned Counsel appearing for the petitioner fairly states that at this stage, he does not press the prayer for grant of bail. However, while inviting attention of this Court to order dated 8.4.2019 passed by trial court while recording statements of PW-4 and PW5, learned counsel contends that right of the petitioner to cross-examine aforesaid witnesses, could not be closed by learned Court below, on account of absence of his counsel, rather, court should have either adjourned the matter for cross-examination or should have appointed some legal aid counsel, to represent the accused, while recording statements of PW-4 and PW-5.”

On the one hand, it is pointed in para 2 that, “Mr. Anirudh Sharma, learned Counsel appearing for the petitioner, while referring to Ss. 401, 482 and 483 CrPC, contends that this Court has inherent powers to correct the illegality, if any, committed by a court while conducting trial, as such, order dated 8.4.2019 in as much as right of cross-examination of petitioner has been closed, may be quashed and set aside, while exercising power vested in this Court under aforesaid provisions of law.”

On the other hand, it is then pointed in para 3 that, “Mr. Kunal Thakur, learned Deputy Advocate General, while opposing aforesaid prayer made on behalf of the petitioner, contends that since there is specific remedy provided under the Statute to lay challenge to order sought to be quashed in the instant proceedings, petition at hand deserves to be dismissed being devoid of merit. Mr. Thakur, also contends that otherwise also prayer as has been made herein above, cannot be considered/granted in the instant proceedings filed under S. 439 CrPC. Lastly, Learned Deputy Advocate General contends that the order dated 8.4.2019 sought to be quashed in the instant proceedings was passed more than a year back and there is no plausible explanation rendered on record qua the delay in approaching this court with the aforesaid prayer, as such, present petition deserves dismissal.”

To put things in perspective, it is then observed in para 4 that, “Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 8.4.2019, statements of PW-4 and PW-5 came to be recorded but since there was none to represent the petitioner-accused, court below closed his right to cross-examine them. Perusal of aforesaid order reveals that the learned Court below, before closing right of cross-examination of the petitioner, made an endeavour to locate the counsel of the petitioner, but since he was at Nalagarh and was unable to appear in the court, court closed right of the petitioner to cross-examine prosecution witnesses.”

More significantly, it is then held in para 6 that, “It is quite apparent from the bare perusal of statements of prosecution witnesses recorded on 8.4.2019 that right of cross-examination vested in petitioner has been closed on account of non-appearance of his counsel, who otherwise had informed the court that he on account of pre-occupation at Nalgarh is unable to come. Though, having taken note of the explanation rendered on record by learned Counsel appearing for the petitioner, court below ought to have adjourned the cross-examination, but otherwise should have provided some legal aid counsel to the petitioner in order to conduct cross-examination of prosecution witnesses on behalf of the petitioner and should not have closed the right of the petitioner.”

Most significantly, Justice Sandeep Sharma then holds in para 7 that, “One cannot lose sight of the fact that it is the petitioner, who has suffered on account of non-appearance of the counsel, as a consequence of which his right to cross-examine prosecution witnesses has been closed. Petitioner who is behind the bars even may not be aware that his counsel was not present on the day when prosecution witnesses were being examined, as such, in such like situation, it is duty of the court to ensure that vested right of the accused, who is unable to defend himself/herself is duly protected. Though, Mr. Anirudh Sharma, contends that the counsel as has been named in the order sought to be quashed, was never appointed by the petitioner, but even otherwise, right to cross-examine vested in the petitioner could not have been closed by learned Court below, on account of absence of his counsel, rather, in that situation, court should have provided some legal aid counsel to the accused. By now, it is well settled that it is obligatory for court to grant free legal service to the person, who is otherwise unable to engage a lawyer for himself/herself on account of financial constraints or on account of his/her being behind bars. (See: Shri Suk Das and another vs. Union Territory of Arunachal Pradesh (Criminal Appeal no. 725 of 1985, decided on 10.3.1986)[(1986) 2 SCC 401].”

No less significant is what is then laid down in para 8 that, “Otherwise also, careful perusal of Ss. 303 and 304 CrPC, provide that a person accused of an offence before court of law or against whom proceedings are initiated under the provisions contained in Code of Criminal Procedure, has a right to be defended by pleader of his choice. If accused is not represented by a pleader or it appears to the court that the person has no sufficient means to engage a pleader, under S. 304 CrPC, court is required to assign a pleader for the defence of the accused at the expense of the State, but, in no situation, accused can be left without there being any legal aid. Reliance is placed upon Sh. Sama vs. State of Mizoram (Cr. Petition No. 2 of 2014, decided on 20.8.2014 by Gauhati High Court), wherein it has been held as under:

“6. I have considered the submissions made by the learned Counsel appearing for the parties and on perusal of the materials available on record, this Court is of the considered opinion that gross injustice have been caused to the petitioner inasmuch as he being an illiterate person, it was a duty bound on the part of the learned Trial Court to have apprised of his right or at least could have provided an Amicus Curie to the petitioner. This has not been done.””

In view of the aforesaid, it is then held in para 9 that, “IN view of discussion made herein above as well as law taken note herein above, it can be safely concluded that there is no complete bar on exercise of inherent power by High Court, especially where there is abuse of process of law or extraordinary situation comes to notice of the court in the exercise of aforesaid jurisdiction. Plea of limitation raised by Learned Deputy Advocate General is not applicable in the instant case, because, if glaring injustice stares court on its face, it is bounden duty of the court to correct that glaring injustice by passing appropriate orders.”

Of course, what follows next is then stated in para 10 that, “Consequently, in view of above, while exercising power under Ss. 482 and 483 CrPC deems it fit to quash order dated 8.4.2019 passed by learned Court below, while recording statements of PW-4 and PW-5, in as much as it proceeded to close right of the petitioner to cross-examine the prosecution witnesses. Ordered accordingly. Learned Court below is directed to provide adequate opportunity to the petitioner to cross-examine the prosecution witnesses, if not already afforded and, in case, petitioner requires legal aid, same may also be provided to him. Petition stands disposed of in the aforesaid terms alongwith all pending applications, if any.”

Finally, it is then held in the last para 11 that, “Registry to apprise learned Court below with regard to passing of instant judgment, enabling it to proceed further with the matter.”

In essence, the sum and substance of this noteworthy judgment is that the accused right to cross examination could not be closed on account of absence of his counsel. It was also made clear in this notable judgment that it is the duty of the Court to provide legal aid counsel. All the courts must always adhere to what has been laid down by the Himachal Pradesh High Court in this leading case so very elegantly, effectively and eloquently! No denying it!

Sanjeev Sirohi

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