Judgment:
ORDER
K.L. Shrivastava, J.
1. This is an application under Section 482 of the Criminal Procedure Code, 1973 (for short 'the Code') directed against the order dated 2-4-1986 passed by the Judicial Magistrate First Class, Biora, District Rajgarh in Cr. Case No. 305/83 relating to an offence under Section 304A of the Indian Penal Code.
2. Circumstances giving rise to the application are these. In the aforesaid case on the hearing dt. 19-7-85 the petitioner was not represented before the learned Magistrate by a lawyer and four witnesses had been examined. Subsequently a lawyer appeared , for the applicant and after inspecting the record, submitted an application praying that the four witnesses already examined be recalled.
3. The learned Magistrate rejected the prayer made in the application.
4. Revision filed against that order (vide Cr. Revision No. 43 of 1986) was dismissed by the Additional Sessions Judge, Rajgarh on 24-9-1986 as not tenable. In so doing the learned Additional Sessions Judge placed reliance on the decision in Amarnath's case : 1977CriLJ1891 .
5. The point for consideration is whether the impugned order deserves to be set aside.
6. It is pertinent to point out that Section 304 of the Code expressly provides for legal aid to accused in certain cases. By Article 39A of the Constitution 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's case : 1986CriLJ1084 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 service 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 un-represented 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.
7. In the instant case, it does not appear that on the hearing dt. 19-7-85 the learned Magistrate had discharged his obligation referred to above. Thus there has been violation of fundamental right of the petitioner.
8. On a careful consideration of the facts and circumstances, I find that it is a fit case where the impugned order deserves to be interfered with in exercise of the inherent powers under Section 482 of the Code.
9. In the result the impugned order is set aside. The case is sent back to the learned Magistrate with the direction that he shall recall the witnesses already examined and shall examine them afresh as required by law. The record of the case be sent back immediately.