While speaking out most vocally totally in favour of giving sufficient time to the accused to engage a counsel and taking a very pragmatic, progressive and courageous stand, the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled Harish Kumar A vs State of Karnataka & Anr in Criminal Appeal No. 1167 of 2023 and cited in 2023 LiveLaw (Kar) 264 that was pronounced as early as on July 7, 2023 has set aside an order of conviction that was handed down to an accused after finding him guilty of outraging the modesty of a woman as the accused could not get the opportunity to cross examine the prosecution witnesses. It must be noted that the Single Judge Bench of Karnataka High Court comprising of Hon’ble Mr Justice K Natarajan while very rightly, robustly and rationally remanding the matter back to the Trial Court for fresh consideration minced just no words whatsoever to observe that, “Of course, speedy trial is mandatory, however, denial of providing an opportunity to cross-examine the prosecution witnesses, which is nothing but denial of fair trial under Guaranteed Article 21 of the Constitution of India.” The Karnataka High Court thus very rightly granted bail to the accused in this leading case.
At the very outset, this simple, sensible and straightforward judgment authored by the Single Judge Bench of Karnataka High Court comprising of Hon’ble Mr Justice K Natarajan sets the ball in motion by first and foremost putting forth in para 1 that, “Though the appeal has come up for arguments on I.A.No.1/2023, but with the consent of both the learned counsel for the parties, the matter is disposed of finally.”
As we see, the Bench then discloses in para 2 that, “This appeal under Section 374(2) of Cr.P.C., is filed, challenging the judgment of conviction and order of sentence dated 6.6.2023, passed in the Spl.C.No.901/2019, by the Court of FTSC-1, Additional City Civil and Sessions Judge, Bengaluru arising out of Crime No.63/2019 registered by the Malleshwaram Police Station, Bengaluru, convicting the appellant-accused for offence punishable under Sections 354(A) of IPC and Section 12 of POCSO Act, 2012 and sentencing the appellant-accused to undergo rigorous imprisonment for 2 years and to pay fine of Rs.25,000/- and in default to undergo 4 months of rigorous imprisonment.”
Needless to say, the Bench states in para 3 that, “Heard the learned counsel for the appellant-accused and learned HCGP for the respondent-State.”
To put things in perspective, the Bench envisages in para 4 that, “The case of the prosecution is that, on the complaint of the victim girl P.W.1, the Police registered the FIR alleging that, on 5.6.2019, at about 3.30 p.m., when she was walking on the footpath at Malleshwaram 18th Cross, Opposite to Shashikiran Apartments, at that time accused came and caught hold of her and touched her private part and started to run, at that time, victim girl followed him from 18th cross to 15th cross till Himamshu School and caught hold of him and handed over to the Police. After registering the case, the Police arrested the accused. Further he was tried by the Sessions Judge, wherein the prosecution has examined 10 witnesses P.W.1 to P.W.10 and got marked the documents at Exs. P.1 to P.12. The counsel for the accused did not choose to cross examine the witnesses and the Trial Court passed judgment finding the guilt of the accused.”
Of course, we must pay attention to what the Bench then states in para 5 that, “Learned counsel for the accused contended that though the prosecution has examined 10 witnesses, but none of the witnesses were cross examined by the accused counsel as the counsel remained absent. He further contends that, Even, legal services was not provided by the Trial Court by appointing the counsel to defend the accused in order to provide fair trial which is guarded under Article 21 of Constitution of India and nothing but denial of fair trial. Hence, he submits that, evidence of the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and as such the findings recorded by the learned Sessions Judge suffers from perversity and arbitrariness and prays to allow the appeal.”
Truth be told, the Bench specifies in para 6 that, “Per contra, the learned HCGP fairly admits that an opportunity was not provided to the accused to defend his case.”
Generally speaking, the Bench then states in para 7 that, “Considered the submission made by the learned counsel for the parties and perused the records.”
Frankly speaking, the Bench very rightly points out in para 8 that, “Perusal of the judgment of the Trial Court at para No.19 clearly reveals that, the accused has not cross examined the prosecution witnesses P.W.1 to P.W.10 and their evidence was not challenged by the accused as they have not been cross-examined by the accused. Though, it is stated by the earlier Court that it had asked the accused for legal aid for appointing the counsel, but the accused said to have refused in this regard and as such the Trial Court did not appoint any counsel on behalf of the accused. Therefore, due to non examination of the evidence, the Trial Court has drawn adverse inference and proceeded to convict the accused which is not sustainable in law.”
Most significantly, the Bench very forcefully mandates in para 9 holding that, “Fair trial is the main object of the criminal procedure and so also the Fundamental Right guaranteed under Article 21 of the Constitution of India mandates the same, which is denied by the Trail Court by not allowing the accused to appear through the counsel for cross examining all the witnesses.”
No less significant is what is then underscored in para 10 wherein it is enunciated that, “Of course, speedy trial is mandatory, however, denial of providing an opportunity to cross-examine the prosecution witnesses, which is nothing but denial of fair trial under Guaranteed Article 21 of the Constitution of India and in similar cases the Division Bench of this Court has remanded the matter back to the Special Trial Court for fresh consideration.”
Most forthrightly and most remarkably, the Bench then minces absolutely no words to observe in para 11 directing that, “Trial Court judgment also reveals that earlier learned Sessions Judge has given several opportunities for the accused to cross-examine the prosecution witnesses. When the matter is came up before the Court, it is duty of the Court to afford an opportunity for cross examination of the witnesses by giving some time to engage his own counsel for advancing his case. The Trial Court without providing an opportunity for cross-examination of the prosecution witnesses ought not to have convicted the accused. Hence, the impugned judgment of conviction and order of sentence requires to be set aside and matter is remanded back to the Trial Court for fresh consideration.”
Finally, the Bench then concludes by holding in para 12 that, “In view of the same, I proceed to pass the following:
ORDER
i) The criminal appeal is allowed;
ii) The impugned judgment of conviction and order of sentence dated 6.6.2023 passed in Spl.C.No.901/2019 by the FTSC-1, Additional City Civil & Sessions Judge, Bengaluru, is hereby set aside and the matter is remanded back to the Trial Court for fresh consideration;
iii) The appellant is ordered to be released on bail by executing a personal bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with a surety for the like sum to the satisfaction of the Trial Court;
iv) The Trial Court is directed to provide an opportunity to the accused to engage a counsel to cross examine the prosecution witnesses and to proceed in accordance with law;
v) Operative portion of this order shall be supplied to the Trial Court and the same may be intimated to the Trial Court.”
In conclusion, it must be said without having even a straw of doubt in our mind that what the Karnataka High Court Single Judge Bench comprising of Hon’ble Mr Justice Krishnan Natarajan has held so decisively in this leading case that it is the duty of the Trial Court in all cases of crime to make sure to always give time to the accused to engage counsel for having the opportunity of cross examining the prosecution witnesses definitely needs to be very strictly implemented without attaching any ifs and buts by all the Trial Courts all across India. This will indubitably ensure that the accused is not denied a fair trial as is guaranteed to every accused under Article 21 of the Constitution of India. No doubt, it is the bounden duty of all the Trial Courts in India to always abide fully, firmly and finally by what the Karnataka High Court has held so elegantly, eloquently and effectively in this leading case. No denying or disputing it!
Sanjeev Sirohi