IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/02/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL REVISION CASE NO.169 OF 2003
AND
CRL.M.P.Nos.1480 AND 1481 OF 2003.
Mohd.Amjath Ali ... Petitioner
-Vs-
State, by
The Deputy Superintendent of Police,
Special Investigation Team
(in B-1 P.S.Crime No.151/98)
Coimbatore. ... Respondent
Criminal Revision Petition filed under Section 397 r/w.401
Cr.P.C. for the reasons as stated therein.
For petitioner : Mr.S.Sathiachandran
For respondent : Mr.I.Subramanian,
Public Prosecutor,
for Mr.O.Srinath,
Government Avocate (Crl.side)
:O R D E R
The petitioner/20th accused in Sessions Case No.2 of 2000
pending on the file of the Court of the Sessions Judge for trial of Bomb Blast
Cases, Coimbatore who is alleged to be facing serious allegations such as that
he acted as a `human bomb’ in the bomb blasts that took place in Coimbatore
and facing the charges under Sections 302 IPC ( four counts), 120-B, 307 IPC
and under various Sections of the Indian Explosives Act, has come forward to
file the above criminal revision case praying to call for the entire records
connected to the impugned order dated 3.10.2002 made in Crl.M.P.No.440 of 2002
by the trial Court and quash the same further directing the trial Court to
permit the petitioner to engage a counsel of his choice to defend him in the
Sessions Case No.2 of 2000 on State Brief.
2. The averments of the petition are that the petitioner is
aged about 23 years and initially he engaged the defence counsel on his own,
but the case has taken nearly four years to attain the pre-trial stage itself,
during which period he was confined in Central Prison, Coimbatore; that when
the trial commenced, he was given to understand that there were around 2500
prosecution witnesses and at the rate if the trial is held for four days in a
week, as is done, it would take nearly 3 to 4 years for those evidence to be
brought on record and for this length of period, the petitioner could not
afford to bear the cost of a private defence counsel and therefore he filed a
petition on 27.9.2002 before the trial Court seeking to permit him to engage a
State Brief Advocate at the cost of the State in Crl.M.P.No.440 of 2002 in the
said Sessions Case, but holding that the petitioner was undefended and was not
being represented by a counsel, the case was adjourned to 3.10.2002 and on
that day, he was asked to choose a counsel from out of the 26 State Brief
Advocates who were already on record; that the petitioner expressed his desire
to engage a counsel of his choice from outside the panel as the 27th State
Brief counsel since originally the Government had sanctioned 27 State Brief
Advocates to conduct the trial in the said case and in the vacant place, the
petitioner could be provided with to appoint a counsel of his choice; that on
3.10.2002, the trial Court rejected the petitioner’s plea for engaging an
Advocate of his choice to defend him on State Brief and appointed one
Mr.Dhanaraj Cangan as the petitioner’s counsel on State Brief, which is
arbitrary, illegal and against the principles enunciated by the upper forums
of law and hence the same is liable to be set aside.
3. On such facts, the petitioner, almost repeating the same
arguments in the grounds of the revision, would seek for the relief extracted
supra.
4. In the counter affidavit filed on behalf of the State,
besides highlighting the series of explosions which occurred in and around
Coimbatore on 14.2.1998 killing 58 persons and injuring 250 in which the final
report has been filed on 5.5.1999 against 167 accused and one approver, the
counter affidavit would state that crossing several hurdles, the Special Court
was able to frame the charges on 23.1.2001 pursuant to the orders of the
Honourable Supreme Court in SLP. ( Criminal) No.1228 of 2001 and commenced
the trial on 7.3.2002. Further, furnishing the details regarding the sanction
of the Government by G.O. to appoint 27 Advocates to defend the 167 accused
as per G.Os.227 and 298 Home respectively dated 27.7.2001 and 17.10.2001 and
fixing the fee of each of such counsel, the counter would state that the trial
of the serial bomb blast cases started making progress resulting in the
examination of 295 witnesses, all the accused having been effectively defended
by the counsel appointed by the Government barring only the petitioner, who
filed the application on 27.9.2002 praying to appoint a private counsel at the
cost of the Government, in Crl.M.P.No.44 0 of 2002 and the trial Court
dismissed the same on 3.10.2002 but appointing one Mr.Dhanaraj Cangan,
Advocate, one among the 27 Advocates appointed by the Government, as the State
Brief for the petitioner, that too on failure of the petitioner to make a
mention of the name of anyone of those Advocates of his choice for being
appointed to defend him. Aggrieved against the said order, the petitioner has
come forward with the above criminal revision case.
5. Tracing the history of the Al-umma cadre of Melapalayam
and its activities and the petitioner’s association with the same, the
conspiracy hatched, the execution of the same by the suicide squad formed and
others, tying around their waists the box bombs, their targets of the day and
thereafter the commencement and continuance of the trial, the onerous
responsibility cast on the special Court etc., the counter affidavit would
contend that the petitioner does not want to be represented by anyone of the
26 State Brief Advocates who are already on record representing all the
accused persons and stressing the appointment of a new counsel of his choice,
he could only cause unnecessary delay in the conduct of the trial, which is
undesirable in the wake of the high responsibility cast on not only the Court
but every one concerned with the case wherein the accused are 167, the
witnesses to be examined in toto being 2339 and the case bundle ranging more
than 5000 pages and therefore it is neither feasible to attend to the request
of the petitioner to appoint an Advocate of his choice outside the panel at
the expense of the State nor is it the requirement of law and the objection of
the petitioner that his case could be not be handled effectively is neither
correct nor sustainable nor is it legal nor in adherence to the principles
enunciated by the Honourable Supreme Court of India and hence the counter
would ultimately pray to dismiss the petition directing him to choose anyone
of the Advocates among the 26 State Brief Advocates already on record and to
proceed with the trial.
6. During arguments, both the learned counsel appearing on
behalf of the petitioner and the learned Public Prosecutor, High Court, Madras
would lay stress on their respective stand-points pleaded in the petition and
the counter respectively, besides the learned counsel for the petitioner
citing from the decided cases of the upper forums of law particularly the
Honourable Supreme Court of which those which are relevant for consideration
are:
1. AIR 1966 S.C. 1910 (STATE OF MADHAYA PRADESH vs. SHOBHARAM AND OTHERS)
2. AIR 1978 S.C. 1548 (MADHAV HAYAWADANRAO HOSKOT vs. STATE OF MAHARASHTRA)
3. AIR 1979 S.C. 1369 (HUSSAINARA KHATOON AND OTHERS vs. HOME SECRETARY,
STATE OF BIHAR, PATNA) and
4. AIR 1981 S.C.928 (KHATRI AND OTHERS vs. STATE OF BIHAR AND OTHERS).
7. In the first judgment cited above, a Constitution Bench of
the Honourable Apex Court has held:
“The Criminal P.C. allows the right to be defended by counsel but that is not
a guaranteed right. The framers of the Constitution have well-thought of this
right and by including the prescription in the Constitution have put it beyond
the power of any authority to alter it without the Constitution being
altered.”
“A person arrested and put on his defence against a criminal charge, which may
result in penalty, is entitled to the right to defend himself with the aid of
counsel and any law that takes away this right offends the Constitution.”
So holding, the Honourable Apex Court has held Section 63 of the Madhya Bharat
Panchayat Act, as void being inconsistent with Art.22(1) of the Constitution
in so far as it took away the right of an arrested person to be defended by a
legal practitioner of his choice.
8. In the second judgment cited above, it has been held:
“Where the prisoner is disabled from engaging a lawyer, on reasonable grounds
such as indigence or incommunicado situation, the Court shall, if the
circumstances of the case, the gravity of the sentence, and the ends of
justice so require, assign competent counsel for the prisoner’s defence,
provided the party does not object to that lawyer.”
9. In the third judgment cited above, it has been held:
“Article 39-A of the Constitution 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 required, provided of
course the accused person does not object to the provision of such lawyer.”
10. The proposition held in the third judgment above has been
followed by the Honourable Apex Court in the fourth judgment cited supra.
11. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for both,
what could be assessed by this Court is that the petitioner, not willing to
choose one among those 26 Lawyers approved by the G.Os. of the Government as
the State Brief Advocates cited supra, would file an application before the
lower Court seeking permission to appoint his own counsel to defend him
outside the panel of 26 Lawyers, at the cost of the State. It is relevant to
point out, at this juncture, that all other accused from out of 167, with the
single exception of the petitioner, have agreed to appoint a Lawyer from those
who are figuring in the panel approved by the Government and the trial Court,
for reasons assigned on a lengthy discussion held on all the vital aspects of
the case and the counter arguments, has not only dismissed the claim of the
petitioner but also has appointed an Advocate by name Mr.Dhanaraj Cangan as
the State Brief to defend the petitioner.
12. It is further relevant to extract the operative portion
of the order of the lower Court:
“In such circumstances, if the concerned accused seeks the assistance of the
Court to engage a Pleader to defend him at State’s expenses, the same can be
done under Section 304 Cr.P.C. and there cannot be any objection for
providing assistance to the petitioner by appointing a State Brief Advocate to
defend the case on his behalf. But, while granting such assistance, it should
be kept in mind that the choice of the Advocate is that of the Court and not
that of the accused…. Petitioner does not want to be represented by anyone
of the 26 State Brief Advocates who are already on record representing all
other accused persons.”
On such remarks, the trial Court has dismissed the prayer of the petitioner,
testifying the validity of which the petitioner has come forward to file the
above criminal revision case on such grounds extracted supra.
13. In the above circumstances, it is relevant to seek
recourse to the provisions of law concerned with the subject, which are
Sections 303 and 304 of the Cr.P.C. They are:
“303. 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.
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.”
14. From among the above two Sections, Section 303 Cr.P.C.
generally speaks about the `right of the accused to be defended by a Pleader
of his choice’, meaning thereby that in the selection of the counsel,
absolutely there cannot be any obstacle or hindrance for the accused, provided
the selection is on his own and at his own cost. This aspect is not at all
denied by the respondent/State but the claim of the petitioner/accused is that
he must be given the opportunity to choose an Advocate of his choice, not
anyone from the panel of Lawyers approved by the Government numbering 26 in
the case in hand, but from outside and at the cost of the State.
15. In order to get an answer for this claim of the
petitioner, we have to resort to Section 304 Cr.P.C. which deals with the
`legal aid to accused at State expense in certain cases’ wherein it appears to
the Court that if the accused has no sufficient means to engage a Pleader, the
Court shall assign a Pleader for his defence at the expense of the State. The
language employed by the Section is plain and simple. So far as the
petitioner not having sufficient means to engage a Pleader is concerned, it is
an admitted fact on the part of the petitioner that he cannot afford to engage
his own counsel at his cost and in such event, the Section continues to say
that `the Court shall assign a Pleader for his defence at the expense of the
State’ meaning thereby that the choice of the Pleader to defend such an
accused, who is unable to appoint a counsel of his choice on his own at his
own expenses, is that of the Court and it has been mandatorily held by the
Section that it is the Court which shall assign the Pleader for his defence
and at the expense of the State, needless to mention that the choice is not
that of the accused. Therefore, this Court is of the firm view that no other
meaning or interpretation could be drawn to mean that under such
circumstances, the accused could pick and choose his own counsel from outside
the panel provided for by the Government through the G.O. and in spite of
such facility made and the option kept open, if the accused fails to choose a
counsel of his choice from out of the panel of Advocates numbering 26 made
available, it is the Court which shall appoint a suitable Advocate of its own
choice from the Panel to defend the accused and in this case, the trial Judge
has rightly acted in accordance with the letter and spirit of Section 304
Cr.P.C. naming the Advocate who is to defend the petitioner viz. Mr.Dhanaraj
Cangan, who is one among the panel of lawyers.
16. So far as the judgments cited on the part of the
petitioner are concerned, the Honourable Apex Court, in the first judgment
cited above, has generally insisted the entitlement of the accused to defend
himself with the aid of a counsel and in the second judgment has insisted that
the Court shall assign competent counsel for the petitioner’s defence. In the
third and fourth judgments, the Honourable Apex Court has insisted the
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 held that the State is under a mandate to provide
a lawyer to an accused person if the circumstances of the case so requires.
In the case in hand, the State has provided with the panel of lawyers, 27 in
number, and in spite of all the other accused have chosen their State Brief
Advocates from among the lawyers in the approved panel, the petitioner, with
no better cause shown or reason assigned, has come forward to differ from the
same and has insisted to appoint a counsel of his choice outside the panel at
the State expense, which in the circumstances, since being not feasible, it
had become incumbent on the part of the trial Court to appoint a lawyer of its
own choice from the panel itself as the State Brief Advocate for the
petitioner.
17. In the above circumstances, the trial Court, in
appointing the defence counsel for the petitioner, has done just what is
advocated by the Section and nothing else. Therefore, this Court is of the
view that the appointment of the lawyer effected by the trial Court is well in
tune with the insistence of the Honourable Apex Court since the petitioner has
not been deprived of the opportunity of being defended by a counsel. As such,
this Court is unable to see any inconsistency or infirmity or patent error of
law to have crept into the order passed by the trial Court and therefore the
interference of this Court sought to be made into the well considered and
merited order passed by the Special Court for the trial of Bomb Blast Cases,
Coimbatore is neither necessary nor warranted in the circumstances of the case
and ultimately the above criminal revision case only becomes liable to be
dismissed.
In result,
(i)there is no merit in the above criminal revision case and the same is
dismissed accordingly.
(ii)The order dated 3.10.2002 made in Crl.M.P.No.440 of 2002 in Sessions Case
No.2 of 2000 by the Court of the Sessions Judge for trial of Bomb Blast Cases,
Coimbatore is hereby confirmed.
Consequently, Crl.M.P.Nos.1480 and 1481 of 2003 are also
dismissed.
Index: Yes
Internet: Yes
Rao
To
1.The Deputy Superintendent of Police,
Special Investigation Team
Coimbatore.
2.The Court of the Sessions Judge
for trial of Bomb Blast Cases, Coimbatore.
3.The Public Prosecutor,
High Court, Madras.