IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1771 of 2005() 1. ABDUL RAZACK @ CHERIYAN @ KRK, ... Petitioner Vs 1. STATE OF KERALA. ... Respondent For Petitioner :SRI.P.SAMSUDIN For Respondent :PUBLIC PROSECUTOR. The Hon'ble MR. Justice K.BALAKRISHNAN NAIR The Hon'ble MR. Justice P.S.GOPINATHAN Dated :27/08/2009 O R D E R ' C.R.' K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. ```````````````````````````````````````````````````` Crl. Appeal No. 1771 OF 2005 ```````````````````````````````````````````````````` Dated this the 27th day of August, 2009 J U D G M E N T
Balakrishnan Nair, J.
The appellant, feeling aggrieved by his conviction and
the sentence imposed on him in Sessions Case No.262/01 on the
files of the Court of Sessions, Manjeri, has preferred this Criminal
Appeal. The case against the appellant was as follows:-
The appellant was residing with his wife Rasiya and two
children in a rented building bearing Door No.7/87 of Edakara
Grama Panchayat. On the fateful day, there was a quarrel
between the husband and wife and this led to the appellant
pouring kerosene over Rasiya and setting fire to her at about 10
p.m. She was taken to the nearby hospital at Nilambur and from
there to the Medical College Hospital, Kozhikode. While
undergoing treatment, she breathed her last on 2.9.1997. Based
on the F.I. Statement given by the deceased and the dying
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declaration made before the learned Magistrate, the police charge-
sheeted the appellant for the offence punishable under Section
302 of the Indian Penal Code (for short IPC). The Judicial First
Class Magistrate, before whom the charge-sheet was filed,
committed the case for trial by the Sessions Court.
2. Before the trial court, the appellant pleaded not guilty
to the charge. The prosecution, to prove its case, examined PWs
1 to 15 and marked Exts.P1 to P16. Material objects MO1 to MO6
were also produced. The trial court found the appellant guilty of
the offence under Section 302 of the IPC, sentenced him to
undergo imprisonment for life and also to pay a fine of
Rs.10,000/-. In default, it was ordered that he should undergo
rigorous imprisonment for a further period of one year.
3. The aggrieved appellant attacks the judgment of the
court below on various grounds. One of the contentions raised
before us was that the defence counsel arranged by the Sessions
Court, in terms of Section 304 of the Cr.P.C. read with Rules 3
and 4 of the Legal Aid to Accused Rules, 1992 was a raw junior.
The examination of the witnesses in this case started on 7.2.2005.
Going by Annexure-A1 produced along with Crl.M.A.No.8247/09, it
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is pointed out that the lawyer, who defended the appellant, was
enrolled only on 20.10.2002. That means, he has less than three
years’ practice and so, the engagement of such a lawyer was
contrary to the aforementioned provision of the Cr.P.C. and the
Rules of the Legal Aid to Accused Rules, 1992, it is submitted.
The defence arranged by the State for the appellant, who cannot
afford to engage a lawyer by himself, was so poor that he did not
get a fair trial. So, the conviction and sentence imposed on him is
unsustainable in law, it is submitted. In support of the above
submission, reliance was placed on the decision of the Apex Court
in Kishore Chand Vs. State of Himachal Pradesh [1991 (1) SCC
286]. The appellant, apart from attacking the conviction and
sentence, on other grounds, highlighted the above vitiating
circumstance affecting the trial and prayed for remand of the
matter, so that he can get the service of an experienced lawyer for
cross-examination of the witnesses.
4. We heard the learned Public Prosecutor on the above
point. The learned Public Prosecutor submitted that going by the
facts of the case, no prejudice has been caused to the appellant
and even if there is violation of Section 304 of the Cr.PC. or of the
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aforementioned Rules, unless prejudice is established, it is not
necessary for this Court to remand the matter.
5. We considered the rival submissions made at the Bar.
We have gone through the entire evidence on record, including the
deposition of the witnesses and the Exhibits produced by the
prosecution. Before dealing with the contentions of the parties, we
will presently refer to the relevant statutory provisions. Section
304 Cr.P.C. reads as follows:-
” 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 fee payable to such pleaders
by the Government, and generally, for
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(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 the Courts of
Session.”
The Kerala High Court has framed Rules under sub-section 2 of
Section 304 of the Cr.P.C. as Legal Aid to Accused Rules, 1992.
Rules 3 and 4 of the aforementioned Rules read as follows:-
” 3. Panel of Pleaders – (1) Every
Criminal Court shall maintain a panel of
pleaders consisting of not less than five, for
the purpose of these Rules.
(2) All Magistrate Courts of co-
ordinate jurisdiction functioning at a place
shall be treated as one Court for the purpose
of this Rule and the number of pleaders in the
panel shall not be less than five times the
number of such courts of co-ordinate
jurisdiction and the seniormost among the
Magistrates shall prepare the panel.
(3) All benches of the Sessions Court
(including Additional Sessions and Assistant
Sessions) functioning at a place shall be
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treated as one court for the purpose of this
Rule and the number of pleaders in the panel
shall not be less than five times the number of
such benches and the Sessions Judge shall
prepare the panel.
(4) Additional Sessions Courts and
Assistant Sessions Courts functioning at a
place different from the seat of the Sessions
Judge of a particular Sessions Division shall
have a separate panel in accordance with
these Rules and the Additional or Assistant
Sessions Judge shall prepare the panel.
(5) The panels to be prepared under
sub-rules (3) and (4) shall consist of two
panels of Advocates, a senior panel and a
junior panel and the number of Advocates to
be included in each panel shall be the same.
(6) (a) No Advocate who has put in
less than 5 years of actual practice shall be
eligible for inclusion in the senior panel.
(b) No Advocate who has put in less
than 2 years of actual practice shall be
eligible for inclusion in the junior panel.
4. Appointment of Pleaders –
Advocates in the senior panel alone shall,
ordinarily, be appointed in sessions case and
in other cases where the offence is punishable
with imprisonment for more than 10 years. In
all other cases, including criminal appeals
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and revisions, Advocates in the Junior panel
shall, as far as possible, be appointed unless
the Court is of the opinion that an Advocate
from the senior panel is necessary in view of
the complexity of the case.”
6. Going by Rule 4 of the above quoted Rules, for
sessions trials, where the offence is punishable with imprisonment
for more than ten years, ordinarily a member of the senior panel
shall be engaged to render legal aid to the accused. Sub-rule 6 of
Rule 3 provides that only the persons having five years’ actual
practice shall be eligible for inclusion in the senior panel. So, the
defence lawyer was engaged in this case in violation of Rules 3
and 4 quoted above. During the trial, even if any statutory
provision is violated, ordinarily, the same will not by itself vitiate
the trial or the resultant conviction. The point to be considered is
whether any prejudice has been caused. When we went through
the evidence, we noticed that on many material points no effective
cross-examination was made by the defence lawyer. The
contradictions in the deposition of the witnesses with reference to
their earlier statements before the police were not put to them or
marked. The omissions in the earlier statements with reference to
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the statements made in the box were also not brought to the
notice of the witnesses concerned. Further, concerning many
material witnesses, we find practically there was no cross-
examination. So, we are of the view that the engagement of a
junior lawyer to defend the accused has seriously prejudiced the
appellant. He did not get a fair trial. Article 39A of the
Constitution of India proclaims that the State shall secure that the
operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities. In discharge of the above
obligation, Parliament has framed Section 304 of the Cr.P.C. In
obedience to the mandate of sub-section 2 of Section 304, the
High Court has framed Legal Aid to Accused Rules, 1992. Article
21 proclaims that no person shall be deprived of his life or
personal liberty except according to procedure established by law.
The view that any law is sufficient to deprive the life or personal
liberty, taken in A.K.Gopalan Vs. State of Madras [AIR 1950 SC
27] has been buried deep and now it is well settled that the
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procedure contemplated under Article 21 should be a just, fair and
reasonable procedure. See the leading decision on this point
Maneka Gandhi Vs. Union of India [AIR 1978 SC 597]. The
same principle has been dealt with by the Apex Court in the
decision in Suk Das Vs. Union Territory of Arunachal Pradesh
[1986 (2) SCC 401]. It is equally well-settled now that if fair trial is
denied to an accused and as a result, his life or liberty is deprived,
the same will amount to violation of Article 21 of the Constitution of
India. In Kishore Chand(Supra), the decision cited by the learned
counsel for the appellant, it was held as follows:-
” 12. ………………………… Undoubtedly,
heinous crimes are committed under great
secrecy and that investigation of a crime is a
difficult and tedious task. At the same time
the liberty of a citizen is a precious one
guaranteed by Article 3 of Universal
Declaration of Human Rights and also Article
21 of the Constitution of India and its
deprivation shall be only in accordance with
law. The accused has the fundamental right
to defend himself under Article 10 of
Universal Declaration of Human Rights. The
right to defence includes right to effective
and meaningful defence at the trial. The
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adequately. Assigning an experienced
defence counsel to an indigent accused is a
facet of fair procedure and an inbuilt right to
liberty and life envisaged under Articles 14,
19 and 21 of the Constitution. ………………
13. Though Article 39-A of the
Constitution provides fundamental rights to
equal justice and free legal aid and though
the State provides amicus curiae to defend
the indigent accused, he would be meted out
with unequal defence if, as is common
knowledge the youngster from the bar who
has either a little experience or no
experience is assigned to defend him. ………”
7. Though the learned Public Prosecutor tried to
distinguish the decision on facts, we think the principle laid down
therein is a sound principle which binds us also. We also notice
that poor lawyering of the defence lawyer is taken as a ground,
vitiating the trial, in all civilised countries. The U.S. Supreme Court
in Strickland Vs. Washington [80 Lawyers’ Edition 2d 674] has
held that ineffective assistance of defence counsel in criminal trial
will violate the “due process” clause. Similarly, the Court of
Appeal in Regina Vs. Ensor [1989 (1) WLR 497] observed that ” If
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the court had any lurking doubt that the appellant might have
suffered some injustice as a result of fragrantly incompetent
advocacy by his advocate, the court would quash the conviction”.
8. Keeping the above principles in mind, when the facts of
this case are considered, we feel that the defence counsel has
failed to properly conduct the case. The statements of the
witnesses have become evidence without subjecting the same to
proper cross-examination. The defence of the accused was not
effectively projected. As suggested by the learned counsel for the
appellant, if the case was properly defended, the appellant might
have been acquitted on the ground of benefit of doubt. Without
meaning any disrespect to the counsel, who defended the
accused, we are constrained to say that there was incompetent
advocacy attributable to lack of experience and the same resulted
in vitiating the trial of the appellant. On this ground alone, we are
of the view that the conviction of the appellant is liable to be set
aside. Therefore, it is unnecessary to go into other grounds raised
by the appellant.
9. In the result, the Criminal Appeal is allowed. The
conviction and sentence imposed on the appellant is set aside.
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Hereafter, he shall be treated as an undertrial prisoner. The trial
court shall issue warrant for production of the appellant before it.
Upon his production, if bail application is moved, the trial court
shall deal with the same in accordance with law. If bail is not
granted, he shall be kept in judicial custody in the jail, where
remand prisoners from the trial court are lodged, ordinarily.
10. The trial court shall arrange a competent lawyer to
defend the appellant. The witnesses examined shall be recalled
and the said counsel shall be given an opportunity to cross-
examine them. Needless to say, the prosecution will be given a
chance to re-examine them. Thereafter, the trial court shall
proceed with the case in accordance with law.
The Criminal Appeal is allowed as above.
Sd/-
(K.BALAKRISHNAN NAIR, JUDGE)
Sd/-
(P.S.GOPINATHAN, JUDGE)
aks
// True Copy //
P.A. to Judge
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K.BALAKRISHNAN NAIR &
P.S.GOPINATHAN, JJ.
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Crl. Appeal No. 1771 OF 2005
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J U D G M E N T
27th day of August, 2009