Full Judgment
L. Rath, J.
1. The petitioner was convicted Under Section 394/457/325, IPC, and sentenced to three years' R.I. on each count and a fine of! Rs. 1000/- with a direction for the sentences to run concurrently. In appeal he was acquitted of the charge Under Section 394 IPC and the conviction Under Section 457 IPC was converted to one under Section 451, while maintaining the conviction Under Section 325 IPC and the sentence was also modified to the total remission of the fine and two years' R.I. Under Section 325 IPC and one year R.I. Under Section 451 IPC with the sentences directed to run concurrently.
2. The allegation for which the petitioner stood convicted was of his having attempted to snatch away the gold necklace from the neck of the wife of the Judicial Magistrate, First Class, Jagatsinghpur on the night of 9f9-82 who was then alone in the house and while she tried to prevent the petitioner, he is alleged to have given a fist blow on her face resulting in loss of a tooth on the upper jaw and sustaining bleeding injury thereby. The facts having been found to be true by both the courts below, the conviction as aforesaid Was made.
3. Mr. A. Passayat, learned Counsel appearing for the petitioner, has advanced the sole contention that not only the trial was conducted with great zeal and haste but also on denial of opportunity to the petitioner to defend himself. From the records it appears that after the charge-sheet was submitted on 6-10-82, and the police papers supplied to the petitioner on 8-11-82, the trial was taken up on 23-11-82 on which day Mr. N. C. Patnaik, counsel appearing for the petitioner filed a petition for the stay of the proceeding on the ground that a transfer petition had been filed before the Sessions Judge to transfer the case from the file of the learned Magistrate but that the same having been rejected, it was intended to file a petition before this Court and that to enable the petitioner for the purpose, the case should be stayed. Though such a petition was filed, yet Mr. Patnaik did not appear and copy of the said petition had also not been served on the A. P. P. The petition having not been moved and the A. P. P. having also objected to the petition for stay, the learned Magistrate rejected it being of the view that since there was no order of stay from this Court and the witnesses were present, interest of justice demanded that the proceeding should not be stayed. Thereafter he took up the case for trial and examined P.Ws. 1 to 7 and marked some exhibits as also some M.Os. and the case was adjourned to 26-11-82 for further examination of the witnesses on the request of the A. P. P. On 26-11-82 a fresh vakalatnama in favour of some other advocates as also Mr. N. C. Patnaik was filed on behalf of the petitioner with a petition to recall the witnesses examined on the previous date, for cross-examination. The prosecution evidence was closed on that day with the examination of P.Ws. 8 to 12 and the petition for recalling the witnesses was also rejected holding that opportunity had been granted to the petitioner on the previous date to cross-examine the witnesses, but he had declined the same and that if his request was acceded to, there would be no end to the litigation and that since there were female witnesses, it would not serve ends of justice to recall the witnesses again for cross-examination. Arguments were heard in the case on 2-12-82 on which day a Memo was filed by the Advocate Sri G.C. Kanungo withdrawing from defence and ho defence counsel also appeared thereafter. Nevertheless arguments were heard, the case was closed and judgment was delivered on 3-12-82.
4. From the narration of facts as above, there is little doubt that the petitioner did not have adequate opportunity to defend himself Against the charge. Section 303 Cr. P.C. gives a right to an accused to be defended by a counsel of his choice in a criminal proceeding instituted against him. Doubtless the petitioner was represented by Mr. Patnaik on 23-11-82 but when the matter was taken up he did not appear to move the petition for stay of the case and also did not appear to defend the petitioner. Since the petitioner was undefended it was the duty of the learned Magistrate to ascertain as to whether the absence of the Lawyer was at all due to reasons contributed to by the petitioner himself or was a crafty maneuver by him to obtain an adjournment or whether he was in genuine difficulty needing services of a counsel to defend him. It was also the duty of the learned Magistrate to find out if the petitioner was a person who was indigent or was unable to engage a Lawyer for financial reasons or for other incommunicado situations in which! event he had a right to be defended at State expenses. It does not appear from the order sheet of the court having following any such procedure and instead, after rejecting the petition for stay, the learned Magistrate straightway proceeded to trial of the case. While it is true that expedition in disposal of cases is a laudable objective, yet justice cannot be made a sacrificial offering at its altar and that the courts should be vigilant against adopting such a stand. It is trite to say that justice must not only be done but must also appear to have been done, but the observation applies with more force in the present case Judging the circumstances as a whole, it does not appear that the petitioner has been afforded a fair trial which necessarily leads me to the conclusion of quashing the conviction and the sentence and the remanding the case for a fresh trial in accordance with law.
5. In the result, the revision is allowed. The order of conviction and sentence is quashed and the matter is remitted back to the trial court for fresh trial in accordance with law.