{"id":201860,"date":"2003-02-24T00:00:00","date_gmt":"2003-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-amjath-ali-vs-state-on-24-february-2003"},"modified":"2016-07-05T01:04:03","modified_gmt":"2016-07-04T19:34:03","slug":"mohd-amjath-ali-vs-state-on-24-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-amjath-ali-vs-state-on-24-february-2003","title":{"rendered":"Mohd.Amjath Ali vs State on 24 February, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Mohd.Amjath Ali vs State on 24 February, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 24\/02\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.KANAGARAJ\n\nCRIMINAL REVISION CASE NO.169 OF 2003\nAND\nCRL.M.P.Nos.1480 AND 1481 OF 2003.\n\nMohd.Amjath Ali                                ... Petitioner\n\n-Vs-\n\nState, by\nThe Deputy Superintendent of Police,\nSpecial Investigation Team\n(in B-1 P.S.Crime No.151\/98)\nCoimbatore.                                     ... Respondent\n\n                Criminal Revision Petition filed  under  Section  397  r\/w.401\nCr.P.C.  for the reasons as stated therein.\n\nFor petitioner :  Mr.S.Sathiachandran\n\nFor respondent :  Mr.I.Subramanian,\n                Public Prosecutor,\n                for Mr.O.Srinath,\n                Government Avocate (Crl.side)\n\n:O R D E R\n<\/pre>\n
                The  petitioner\/20th  accused  in  Sessions  Case No.2 of 2000
\npending on the file of the Court of the Sessions Judge for trial of Bomb Blast
\nCases, Coimbatore who is alleged to be facing serious allegations such as that
\nhe acted as a `human bomb’ in the bomb blasts that took  place  in  Coimbatore
\nand  facing  the charges under Sections 302 IPC ( four counts), 120-B, 307 IPC
\nand under various Sections of the Indian Explosives Act, has come  forward  to
\nfile  the  above criminal revision case praying to call for the entire records
\nconnected to the impugned order dated 3.10.2002 made in Crl.M.P.No.440 of 2002
\nby the trial Court and quash the same further directing  the  trial  Court  to
\npermit  the  petitioner to engage a counsel of his choice to defend him in the
\nSessions Case No.2 of 2000 on State Brief.\n<\/p>\n
                2.  The averments of the petition are that the  petitioner  is
\naged  about  23 years and initially he engaged the defence counsel on his own,
\nbut the case has taken nearly four years to attain the pre-trial stage itself,
\nduring which period he was confined in Central Prison, Coimbatore;  that  when
\nthe  trial  commenced,  he was given to understand that there were around 2500
\nprosecution witnesses and at the rate if the trial is held for four days in  a
\nweek,  as  is done, it would take nearly 3 to 4 years for those evidence to be
\nbrought on record and for this length of  period,  the  petitioner  could  not
\nafford  to bear the cost of a private defence counsel and therefore he filed a
\npetition on 27.9.2002 before the trial Court seeking to permit him to engage a
\nState Brief Advocate at the cost of the State in Crl.M.P.No.440 of 2002 in the
\nsaid Sessions Case, but holding that the petitioner was undefended and was not
\nbeing represented by a counsel, the case was adjourned  to  3.10.2002  and  on
\nthat  day,  he  was  asked  to choose a counsel from out of the 26 State Brief
\nAdvocates who were already on record; that the petitioner expressed his desire
\nto engage a counsel of his choice from outside the panel  as  the  27th  State
\nBrief  counsel  since  originally the Government had sanctioned 27 State Brief
\nAdvocates to conduct the trial in the said case and in the vacant  place,  the
\npetitioner  could be provided with to appoint a counsel of his choice; that on
\n3.10.2002, the trial Court rejected the  petitioner’s  plea  for  engaging  an
\nAdvocate  of  his  choice  to  defend  him  on  State  Brief and appointed one
\nMr.Dhanaraj Cangan as the  petitioner’s  counsel  on  State  Brief,  which  is
\narbitrary,  illegal  and against the principles enunciated by the upper forums
\nof law and hence the same is liable to be set aside.\n<\/p>\n
                3.  On such facts, the petitioner, almost repeating  the  same
\narguments  in the grounds of the revision, would seek for the relief extracted
\nsupra.\n<\/p>\n
                4.  In the counter affidavit filed on  behalf  of  the  State,
\nbesides  highlighting  the  series  of explosions which occurred in and around
\nCoimbatore on 14.2.1998 killing 58 persons and injuring 250 in which the final
\nreport has been filed on 5.5.1999 against 167 accused and  one  approver,  the
\ncounter affidavit would state that crossing several hurdles, the Special Court
\nwas  able  to  frame  the  charges  on 23.1.2001 pursuant to the orders of the
\nHonourable Supreme Court in SLP.  ( Criminal) No.1228 of  2001  and  commenced
\nthe trial on 7.3.2002.  Further, furnishing the details regarding the sanction
\nof the  Government  by G.O.  to appoint 27 Advocates to defend the 167 accused
\nas per G.Os.227 and 298 Home respectively dated 27.7.2001 and  17.10.2001  and
\nfixing the fee of each of such counsel, the counter would state that the trial
\nof  the  serial  bomb  blast  cases  started  making progress resulting in the
\nexamination of 295 witnesses, all the accused having been effectively defended
\nby the counsel appointed by the Government barring only  the  petitioner,  who
\nfiled the application on 27.9.2002 praying to appoint a private counsel at the
\ncost  of  the  Government,  in  Crl.M.P.No.44  0  of  2002 and the trial Court
\ndismissed the  same  on  3.10.2002  but  appointing  one  Mr.Dhanaraj  Cangan,
\nAdvocate, one among the 27 Advocates appointed by the Government, as the State
\nBrief  for  the  petitioner,  that  too on failure of the petitioner to make a
\nmention of the name of anyone of those  Advocates  of  his  choice  for  being
\nappointed to defend him.  Aggrieved against the said order, the petitioner has
\ncome forward with the above criminal revision case.\n<\/p>\n
                5.   Tracing  the  history of the Al-umma cadre of Melapalayam
\nand its activities  and  the  petitioner’s  association  with  the  same,  the
\nconspiracy  hatched, the execution of the same by the suicide squad formed and
\nothers, tying around their waists the box bombs, their targets of the day  and
\nthereafter  the  commencement  and  continuance  of  the  trial,  the  onerous
\nresponsibility cast on the special Court etc.,  the  counter  affidavit  would
\ncontend  that  the petitioner does not want to be represented by anyone of the
\n26 State Brief Advocates who  are  already  on  record  representing  all  the
\naccused  persons and stressing the appointment of a new counsel of his choice,
\nhe could only cause unnecessary delay in the conduct of the  trial,  which  is
\nundesirable  in the wake of the high responsibility cast on not only the Court
\nbut every one concerned with  the  case  wherein  the  accused  are  167,  the
\nwitnesses  to  be examined in toto being 2339 and the case bundle ranging more
\nthan 5000 pages and therefore it is neither feasible to attend to the  request
\nof  the  petitioner  to appoint an Advocate of his choice outside the panel at
\nthe expense of the State nor is it the requirement of law and the objection of
\nthe petitioner that his case could be not be handled  effectively  is  neither
\ncorrect  nor  sustainable  nor  is it legal nor in adherence to the principles
\nenunciated by the Honourable Supreme Court of  India  and  hence  the  counter
\nwould  ultimately  pray to dismiss the petition directing him to choose anyone
\nof the Advocates among the 26 State Brief Advocates already on record  and  to
\nproceed with the trial.\n<\/p>\n
                6.   During  arguments,  both the learned counsel appearing on
\nbehalf of the petitioner and the learned Public Prosecutor, High Court, Madras
\nwould lay stress on their respective stand-points pleaded in the petition  and
\nthe  counter  respectively,  besides  the  learned  counsel for the petitioner
\nciting from the decided cases of the upper  forums  of  law  particularly  the
\nHonourable  Supreme  Court of which those which are relevant for consideration
\nare:\n<\/p>\n
1.  AIR 1966 S.C.  1910 (STATE OF MADHAYA PRADESH vs.  SHOBHARAM AND OTHERS)<\/a><\/p>\n
2.  AIR 1978 S.C.  1548 (MADHAV HAYAWADANRAO HOSKOT vs.  STATE OF MAHARASHTRA)<\/a>\n<\/p>\n
3.  AIR 1979 S.C.  1369 (HUSSAINARA KHATOON AND OTHERS vs.    HOME  SECRETARY,
\nSTATE OF BIHAR, PATNA) and<\/a>\n<\/p>\n
4.  AIR 1981 S.C.928 (KHATRI AND OTHERS vs.  STATE OF BIHAR AND OTHERS).<\/a>\n<\/p>\n
                7.  In the first judgment cited above, a Constitution Bench of
\nthe Honourable Apex Court has held:\n<\/p>\n
“The Criminal P.C.  allows the right to be defended by counsel but that is not
\na guaranteed right.  The framers of the Constitution have well-thought of this
\nright and by including the prescription in the Constitution have put it beyond
\nthe  power  of  any  authority  to  alter  it  without  the Constitution being
\naltered.”\n<\/p>\n
“A person arrested and put on his defence against a criminal charge, which may
\nresult in penalty, is entitled to the right to defend himself with the aid  of
\ncounsel and any law that takes away this right offends the Constitution.”\n<\/p>\n
So holding, the Honourable Apex Court has held Section 63 of the Madhya Bharat
\nPanchayat  Act,  as void being inconsistent with Art.22(1) of the Constitution
\nin so far as it took away the right of an arrested person to be defended by  a
\nlegal practitioner of his choice.\n<\/p>\n
                8.  In the second judgment cited above, it has been held:\n<\/p>\n
“Where  the prisoner is disabled from engaging a lawyer, on reasonable grounds
\nsuch as  indigence  or  incommunicado  situation,  the  Court  shall,  if  the
\ncircumstances  of  the  case,  the  gravity  of  the sentence, and the ends of
\njustice so require, assign  competent  counsel  for  the  prisoner’s  defence,
\nprovided the party does not object to that lawyer.”\n<\/p>\n
                9.  In the third judgment cited above, it has been held:\n<\/p>\n
“Article  39-A  of the Constitution also emphasises that free legal service is
\nan unalienable element of `reasonable, fair and just’ procedure for without it
\na person suffering from economic or other disabilities would  be  deprived  of
\nthe opportunity  for  securing  justice.  The right to free legal services is,
\ntherefore, clearly an essential ingredient  of  `reasonable,  fair  and  just’
\nprocedure  for  a person accused of an offence and it must be held implicit in
\nthe guarantee of Article 21.  This is a constitutional right of every  accused
\nperson  who  is unable to engage a lawyer and secure legal services on account
\nof reasons such as poverty, indigence or incommunicado situation and the State
\nis under  a  mandate  to  provide  a  lawyer  to  an  accused  person  if  the
\ncircumstances  of  the  case and the needs of justice so required, provided of
\ncourse the accused person does not object to the provision of such lawyer.”\n<\/p>\n
                10.  The proposition held in the third judgment above has been
\nfollowed by the Honourable Apex Court in the fourth judgment cited supra.\n<\/p>\n
                11.  In consideration of the facts pleaded, having  regard  to
\nthe  materials placed on record and upon hearing the learned counsel for both,
\nwhat could be assessed by this Court is that the petitioner,  not  willing  to
\nchoose one  among those 26 Lawyers approved by the G.Os.  of the Government as
\nthe State Brief Advocates cited supra, would file an  application  before  the
\nlower  Court  seeking  permission  to  appoint  his  own counsel to defend him
\noutside the panel of 26 Lawyers, at the cost of the State.  It is relevant  to
\npoint  out, at this juncture, that all other accused from out of 167, with the
\nsingle exception of the petitioner, have agreed to appoint a Lawyer from those
\nwho are figuring in the panel approved by the Government and the trial  Court,
\nfor  reasons assigned on a lengthy discussion held on all the vital aspects of
\nthe case and the counter arguments, has not only dismissed the  claim  of  the
\npetitioner  but  also  has appointed an Advocate by name Mr.Dhanaraj Cangan as
\nthe State Brief to defend the petitioner.\n<\/p>\n
                12.  It is further relevant to extract the  operative  portion
\nof the order of the lower Court:\n<\/p>\n
“In  such  circumstances, if the concerned accused seeks the assistance of the
\nCourt to engage a Pleader to defend him at State’s expenses, the same  can  be
\ndone under  Section  304  Cr.P.C.    and  there  cannot  be  any objection for
\nproviding assistance to the petitioner by appointing a State Brief Advocate to
\ndefend the case on his behalf.  But, while granting such assistance, it should
\nbe kept in mind that the choice of the Advocate is that of the Court  and  not
\nthat of  the accused….  Petitioner does not want to be represented by anyone
\nof the 26 State Brief Advocates who are already  on  record  representing  all
\nother accused persons.”\n<\/p>\n
On  such  remarks, the trial Court has dismissed the prayer of the petitioner,
\ntestifying the validity of which the petitioner has come forward to  file  the
\nabove criminal revision case on such grounds extracted supra.\n<\/p>\n
                13.   In  the  above  circumstances,  it  is  relevant to seek
\nrecourse to the provisions of  law  concerned  with  the  subject,  which  are
\nSections 303 and 304 of the Cr.P.C.  They are:\n<\/p>\n
“303.   Right of person against whom proceedings are instituted to be defended\n<\/p>\n
– Any person accused of an offence before a Criminal Court,  or  against  whom
\nproceedings  are  instituted  under  this  Code, may of right be defended by a
\npleader of his choice.\n<\/p>\n
304.  Legal aid to accused at State expense in certain cases –\n<\/p>\n
(1) Where, in a trial  before  the  Court  of  Session,  the  accused  is  not
\nrepresented  by  a pleader, and where it appears to the Court that the accused
\nhas not sufficient means to engage a pleader, the Court shall assign a pleader
\nfor his defence at the expense of the State.\n<\/p>\n
(2) The High Court may, with the previous approval of  the  State  Government,
\nmake rules providing for-\n<\/p>\n
        (a) the mode of selecting pleaders for defence under Sub-section (1);\n<\/p><\/blockquote>\n
        (b) the facilities to be allowed to such pleaders by the Courts;<\/p><\/blockquote>\n
        (c)  the  fees  payable  to  such  pleaders  by  the  Government,  and
\ngenerally, for carrying out the purposes of sub-section (1).
\n(3) The State Government may, by notification, direct that, as from such  date
\nas  may  be  specified in the notification, the provisions of sub-sections (1)
\nand (2) shall apply in relation to any class of trials before other Courts  in
\nthe State as they apply in relation to trials before Courts of Session.”\n<\/p>\n
                14.   From  among  the above two Sections, Section 303 Cr.P.C.
\ngenerally speaks about the `right of the accused to be defended by  a  Pleader
\nof  his  choice’,  meaning  thereby  that  in  the  selection  of the counsel,
\nabsolutely there cannot be any obstacle or hindrance for the accused, provided
\nthe selection is on his own and at his own cost.  This aspect is  not  at  all
\ndenied by the respondent\/State but the claim of the petitioner\/accused is that
\nhe  must  be  given  the  opportunity to choose an Advocate of his choice, not
\nanyone from the panel of Lawyers approved by the Government  numbering  26  in
\nthe case in hand, but from outside and at the cost of the State.\n<\/p>\n
                15.   In  order  to  get  an  answer  for  this  claim  of the
\npetitioner, we have to resort to Section 304 Cr.P.C.   which  deals  with  the
\n`legal aid to accused at State expense in certain cases’ wherein it appears to
\nthe Court that if the accused has no sufficient means to engage a Pleader, the
\nCourt shall assign a Pleader for his defence at the expense of the State.  The
\nlanguage employed  by  the  Section  is  plain  and  simple.    So  far as the
\npetitioner not having sufficient means to engage a Pleader is concerned, it is
\nan admitted fact on the part of the petitioner that he cannot afford to engage
\nhis own counsel at his cost and in such event, the Section  continues  to  say
\nthat  `the  Court shall assign a Pleader for his defence at the expense of the
\nState’ meaning thereby that the choice  of  the  Pleader  to  defend  such  an
\naccused,  who  is  unable to appoint a counsel of his choice on his own at his
\nown expenses, is that of the Court and it has been  mandatorily  held  by  the
\nSection  that  it  is the Court which shall assign the Pleader for his defence
\nand at the expense of the State, needless to mention that the  choice  is  not
\nthat of  the accused.  Therefore, this Court is of the firm view that no other
\nmeaning  or  interpretation  could  be  drawn  to   mean   that   under   such
\ncircumstances,  the accused could pick and choose his own counsel from outside
\nthe panel provided for by the Government through the G.O.   and  in  spite  of
\nsuch  facility made and the option kept open, if the accused fails to choose a
\ncounsel of his choice from out of the panel of  Advocates  numbering  26  made
\navailable,  it is the Court which shall appoint a suitable Advocate of its own
\nchoice from the Panel to defend the accused and in this case, the trial  Judge
\nhas  rightly  acted  in  accordance  with the letter and spirit of Section 304
\nCr.P.C.  naming the Advocate who is to defend the petitioner viz.  Mr.Dhanaraj
\nCangan, who is one among the panel of lawyers.\n<\/p>\n
                16.  So far  as  the  judgments  cited  on  the  part  of  the
\npetitioner  are  concerned,  the  Honourable Apex Court, in the first judgment
\ncited above, has generally insisted the entitlement of the accused  to  defend
\nhimself with the aid of a counsel and in the second judgment has insisted that
\nthe Court shall assign competent counsel for the petitioner’s defence.  In the
\nthird  and  fourth  judgments,  the  Honourable  Apex  Court  has insisted the
\nconstitutional right of every accused person, who is unable to engage a Lawyer
\nand secure legal services on account of reasons such as poverty, indigence  or
\nincommunicado  situation and held that the State is under a mandate to provide
\na lawyer to an accused person if the circumstances of the  case  so  requires.
\nIn  the  case in hand, the State has provided with the panel of lawyers, 27 in
\nnumber, and in spite of all the other accused have chosen  their  State  Brief
\nAdvocates  from  among the lawyers in the approved panel, the petitioner, with
\nno better cause shown or reason assigned, has come forward to differ from  the
\nsame  and has insisted to appoint a counsel of his choice outside the panel at
\nthe State expense, which in the circumstances, since being  not  feasible,  it
\nhad become incumbent on the part of the trial Court to appoint a lawyer of its
\nown  choice  from  the  panel  itself  as  the  State  Brief  Advocate for the
\npetitioner.\n<\/p>\n
                17.   In  the  above  circumstances,  the  trial   Court,   in
\nappointing  the  defence  counsel  for  the  petitioner, has done just what is
\nadvocated by the Section and nothing else.  Therefore, this Court  is  of  the
\nview that the appointment of the lawyer effected by the trial Court is well in
\ntune with the insistence of the Honourable Apex Court since the petitioner has
\nnot been deprived of the opportunity of being defended by a counsel.  As such,
\nthis  Court is unable to see any inconsistency or infirmity or patent error of
\nlaw to have crept into the order passed by the trial Court and  therefore  the
\ninterference  of  this  Court  sought  to be made into the well considered and
\nmerited order passed by the Special Court for the trial of Bomb  Blast  Cases,
\nCoimbatore is neither necessary nor warranted in the circumstances of the case
\nand  ultimately  the  above  criminal  revision case only becomes liable to be
\ndismissed.\n<\/p>\n
        In result,\n<\/p>\n
(i)there is no merit in the above criminal  revision  case  and  the  same  is
\ndismissed accordingly.\n<\/p>\n
(ii)The  order dated 3.10.2002 made in Crl.M.P.No.440 of 2002 in Sessions Case
\nNo.2 of 2000 by the Court of the Sessions Judge for trial of Bomb Blast Cases,
\nCoimbatore is hereby confirmed.\n<\/p>\n
                Consequently, Crl.M.P.Nos.1480  and  1481  of  2003  are  also
\ndismissed.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\nRao<\/p>\n
To<\/p>\n
1.The Deputy Superintendent of Police,
\nSpecial Investigation Team
\nCoimbatore.\n<\/p>\n
2.The Court of the Sessions Judge
\nfor trial of Bomb Blast Cases, Coimbatore.\n<\/p>\n
3.The Public Prosecutor,
\nHigh Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mohd.Amjath Ali vs State on 24 February, 2003 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>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-201860","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMohd.Amjath Ali vs State on 24 February, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohd-amjath-ali-vs-state-on-24-february-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohd.Amjath Ali vs State on 24 February, 2003 - 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