Khurshid S/O Shri Jamil Khan vs The State on 22 November, 2007

Delhi High Court
Khurshid S/O Shri Jamil Khan vs The State on 22 November, 2007
Author: V Gupta
Bench: V Gupta


V.B. Gupta, J.

1. This criminal revision petition is directed against the Appellate judgment and order dated 26th March, 2007 passed by Sh. Rajiv Mehra, Addl. Sessions Judge in Crl.Appl. No. 51/2006.

2. According to the prosecution story, on 31st March, 2005, petitioner along with two associates was caught red handed by the factory owner Sh. Shriniwas Jain, while they were removing the scrap material from his factory. Accordingly, petitioner was charge sheeted under Section 457 read with 380/511/34 IPC.

3. At the conclusion of the trial, the trial court convicted the petitioner as well as other co-accused persons for offence under Section 457/380/511/34 IPC and sentenced the petitioner to undergo RI for two years under Section 457 IPC and was also sentenced to undergo S.I. for one year under Sections 380/511 IPC and it was ordered that both the sentences shall run concurrently.

4. In Appeal, the conviction and sentence of the petitioner was maintained by learned Addl. Sessions Judge.

5. It has been contended by learned Counsel for the petitioner that petitioner could not engage the services of a lawyer and no legal aid was provided to the petitioner and since the petitioner was unrepresented in the trial court as well as in the Appellate Court, the trial must be held to be vitiated.

6. On the other hand, learned Counsel for the State, has fairly admitted that the petitioner had the legal right to have the services of a lawyer and there is a lapse in this case as no lawyer was provided to the petitioner.

7. Section 304 Cr.P.C., provides for legal aid to the accused at State expenses in certain cases, it reads as under:

Section 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 defense at the expense of the State.

2) The High Court may, with the previous approval of the State Government make rule providing for-

a) the mode of selecting pleaders for defense 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 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 the Courts of Session.

8. It may be pertinent to point out that Section 304 of Code of Criminal Procedure, expressly provides for legal aid to accused in certain cases. By Article 39A of the Constitution of India, directive has been added by the Constitution (42nd Amendment) Act, 1976 to provide for equal justice and free legal aid. In the decision in Suk Das and Anr. v. Union Territory of Arunachal Pradesh , it has been held that the fundamental right of free legal assistance at State cost of a person accused of an offence which may involve jeopardy to his life or personal liberty is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 of the Constitution. It has been further held that the Court 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 and conviction of the unrepresented accused reached without so informing him has to be quashed, the trial being vitiated due to violation of his fundamental right referred to above. The decision is also an authority for the proposition that on a consideration of the circumstances of a particular case, the Court may direct that no fresh trial shall be held.

9. From the foregoing discussion, it is clear that the revision petition deserves to be allowed.

10. In this case, the petitioner is in custody since 26th March, 2007 and he has already suffered a part of the sentence. So, under the facts and circumstances of the case, it is not desirable that petitioner should be re-tried.

11. In the result, the revision petition is allowed. The petitioner’s conviction and sentences under Sections 457/380/511 and 34 IPC are set aside. It is further directed that the petitioner shall not be re-tried and he is ordered to be released forthwith, if not required in any other case.

12. Revision petition stands disposed of.

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