Chandrakanth S Sharma Vs. State of Karnataka - Court Judgment

- 1 - R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF JULY, 2018 PRESENT THE HON’BLE MR. JUSTICE BUDIHAL R.B. AND THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.673/2014 BETWEEN:

1. Chandrakanth S. Sharma S/o Sundarlal Sharma Aged about 55 years R/at No.239-B, 3rd ‘A’ Main 4th Block, HBR Layout Bangalore-560 043.

2. Monto C. Sharma S/o Chandrakanth S. Sharma Aged about 28 years R/at No.239-B, 3rd ‘A’ Main 4th Block, HBR Layout Bangalore-560 043.

3. Smt. Harsha W/o Chandrakanth S. Sharma Aged about 50 years R/at No.239-B, 3rd ‘A’ Main 4th Block, HBR Layout Bangalore-560 043. (By Sri Hashmath Pasha, Advocate) … Appellants - 2 - AND: State of Karnataka by Hennur Police Station Bangalore-43 Represented by learned State Public Prosecutor. … Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated 16.05.2014 passed by the LII Additional City Civil and in S.C.No.977/2008 convicting the appellants/accused for the offences punishable under Sections 467, 468, 302 and 201 r/w Section 34 of Indian Penal Code. Bangalore City Sessions Judge, This Criminal Appeal coming on for hearing this day, BUDIHAL R.B., J.

delivered the following:-

JUDGMENT

This appeal is preferred by the appellants/accused Nos.1 to 3 being aggrieved by the judgment and order of conviction and sentence dated 16.5.2014 passed in SC No.977/2008 on the file of 52nd Addl. City Civil and Sessions Judge, Bangalore City, wherein, the accused have been found guilty for the offence punishable under Sections 467, 468, 302, 201 r/w Section 34 of the IPC and they were sentenced accordingly.-. 3 - 2. The brief facts of the prosecution case as per the averments made in the appeal memorandum at paragraph 8 that premises No.239-B, 3rd A Main, 4th Block, HBR Layout, Bangalore belonged to one S.V.Raghavan who is the resident of Nanjamba Agrahara, Kempegowda Nagar, Bangalore. He had let out the said premises to the first appellant on monthly rental basis. Every month S.V.Raghavan used to visit the house of the appellant and use to collect the rent. On 10.1.2008 he had left his house at Kempegowdanagar, Bangalore, stating that he is going to HBR Layout house to collect the rent. Thereafter, he did not return home. Since he did not return home, PW1 son enquired the appellants and they have reported that his father has come and collected rent and went away on the same day. Since his father had not returned home till 11.1.2008 he had lodged missing complaint in Kempegowdanagar police station, on the basis of which case in Crime No.5/2008 of man missing was registered. In the - 4 - meanwhile PW1 said to have received information that partially burnt dead body was found within the limits of Sulegeri police station limits, Hosur Taluk, Krishnagiri District, Tamilnadu. On 11.1.2008 PW1 went there and found the burnt dead body which was removed from under-bridge and police had placed dead body in the mortuary and he was not able to identify the same. It is only on the basis of some letter which was disclosing the phone number of one Narayanashetty of Bangalore, the police suspected it may be dead body of S.V.Raghavan the father of PW1. On the basis of which inquest was conducted and dead body was subjected for post mortem. Doctor PW32 conducted autopsy over the dead body and issued post mortem report as per Ex.P97, but she was unable to give cause of death and thereafter dead body was handed over to PW1 and he performed last rites. Further facts that thereafter Sulegeri Police transferred the investigation records to Kempegowdanagar Police Station, Bangalore for - 5 - further investigation, because missing complaint was lodged in it. Kempegowdanagar police on receipt of investigation records from Sulegeri police station, on 15.1.2008 registered a fresh FIR for the offences under Sections 302, 201 of IPC and submitted FIR as per Ex.P111. Thereafter, taken up investigation and on 15.1.2008 the police arrested appellants from their house at HBR Layout and their voluntary statements are recorded.

3. After getting the charge sheet the learned Sessions Judge prepared the charges as against accused Nos.1 to 3 and when the charges were read over and explained to accused, accused pleaded not guilty and claimed to be tried. Hence, charges are framed and plea of accused Nos.1 to 3 were also recorded, then the matter was set down for trial.

4. The prosecution in all examined 38 witnesses and also produced documents at Exs.P1 to P143 with sub-markings and also got marked material objects MOs.1 to 28.-. 6 - Then accused were examined under Section 313 of Cr.P.C., the incriminating materials in the form of questionnaire was read over to the accused persons and whatever the answers given by the respective accused was recorded in their statements. On the side of the defence neither any witnesses were examined nor any documents were got marked. After hearing the arguments of both sides and after considering the materials both oral and documentary placed during the course of trial, ultimately the learned Sessions Judge held the accused Nos.1 to 3 guilty of the charges levelled against them for the said offences and convicted and he has also sentenced them accordingly.

5. Being aggrieved by the judgment and order of conviction so also the sentence and also challenging the legality and correctness of the judgment and order of conviction and sentence on the grounds as - 7 - mentioned at ground Nos.4 to 23 of the appeal memorandum, the appellants are before this Court.

6. We heard the arguments of the learned counsel appearing for the appellants/accused. Learned counsel before starting the arguments brought to the notice of the Court that appellant No.1/accused No.1 already expired in the prison, the learned High Court Government Pleader also confirms the same by submitting that he expired on 23.3.2015. Hence, the case abated as against appellant No.1/accused No.1 and we heard the learned counsel for the appellant in respect of accused Nos.2 and 3.

7. Before taking this Court to the entire merits of the case, the learned counsel referring to the judgment and order passed by the Court below and depositions of the witnesses made the submission that there is no proper representation of the accused persons before the trial Court when the trail was going on. He made the submission that at some point - 8 - of time the accused were represented through the counsel, but subsequently the said counsel has not attended regularly when the witnesses were examined and he remained absent. Learned counsel further submitted that it is no doubt true it has appeared in the order sheet as well as in the deposition that the learned Sessions Judge asked the accused person i.e. accused No.1 whether he wanted to have legal aid which would be given to him. For that the accused refused to have the legal assistance submitting that he will cross-examine the witnesses. Learned counsel further submitted that the materials also goes to show that subsequently at some point of time even standing counsel was appointed and he has also not attended the trial proceedings continuously, after some time, he also retired from the case. Then during that period whatever the witnesses were examined, learned counsel submitted that the cross- examination of the accused person is taken as ‘Nil’. He submitted that subsequently another counsel appeared on behalf of the accused and he cross- - 9 - examined whoever the witnesses examined after his appearance. Hence, he submitted that because of this reason some of the material witnesses examined in the case remained not cross-examined. Learned counsel submitted that the charge as against the accused person is under Section 302 a serious offence under IPC and if convicted liable for punishment i.e. capital punishment or even the life imprisonment. Hence, it is his contention that when there is no proper and effective representation of the accused person during the course of trial, learned counsel submitted that the conviction passed by the Court below ignoring all these things is totally illegal and does not sustainable in law. In this connection learned counsel for the appellants draws our attention to the decision of this court making the submission that even if it is assumed that accused No.1 submitted before the trial Court that he does not want to have the legal aid, even then it is the duty of the Court to give the - 10 - competent legal assistance to the accused person to represent the accused effectively while cross examining the prosecution witnesses. Hence he submitted that this aspect has been discussed by the Division Bench of this Court in the case of Abdul Azeez Vs. The State of Mysore reported in 1975 Crl.L.J.

335. He also relied upon another decision of the Hon’ble Apex Court in the case of Khatri and Others Vs. State of Bihar and Others reported in (1981) 1 SCC627 Learned counsel also relied upon yet another decision of the Hon’ble Apex Court in the case of Suk Das Vs. Union Territory of Arunachal Pradesh reported in (1986) 2 SCC401 Lastly he relied upon one more decision of the Hon’ble Apex Court in the case of Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC67 Referring to the principles enunciated in these decisions learned counsel made the submission that because of the cross-examination of some of the - 11 - witnesses taken as ‘nil’ and there is no cross examination, the interest of the accused is prejudiced and there is no effective representation of the accused during the course of trial, though some of the witnesses have been cross-examined. Hence, he submitted that the appeal be allowed, judgment and order of conviction passed by the Court below is to be set aside and matter may be remanded back to the concerned trial Court with a direction for fresh disposal by giving opportunity to both sides to take steps in the matter and for getting the standing counsel appointed to represent the accused person.

8. Per contra, learned High Court Government Pleader referring to the entries in the order sheet made the submission that the principles enunciated in the decisions relied upon by the learned counsel for the appellants/accused will not come to the aid in view of the fact that though the Court has asked for appointment of the standing counsel, at the first instance the accused No.1 submitted that he does - 12 - not willing to have the legal assistance. He wanted to cross-examine the witnesses. Learned High Court Government Pleader further made the submission that looking to the order sheet of the trial Court subsequently the standing counsel was also appointed, but the standing counsel subsequently retired from the case. She also made the submission that accused No.1 filed an application for recall of the witnesses of PWs.1, 2 and 13. PW13 in turn put to have recall of the witnesses. He personally cross examined PWs.1 and 2. Hence, the learned High Court Government Pleader made the submission that the Court has already offered him about the legal assistance for which he is entitled and in spite of that he has not availed the said opportunity. There is no necessity before this Court now making such submission and seeking remand of the matter on that ground for fresh disposal of the appeal. Hence, the learned High Court Government pleader opposed the submission made by other side and made the submission that the appeal may be heard on the - 13 - entire merits of the case and it is to be disposed of at the hands of this Court on merits.

9. We perused the judgment and order of conviction, the grounds in the appeal memorandum, the depositions of witnesses examined and the documents produced in the case.

10. Perusing the depositions of the witnesses, witnesses PW13, 14, 15, 16, 17, 18 and 19 to 23 were not cross-examined and cross-examination of these witnesses has taken as ‘nil’, but looking to the version of these witnesses they are the material witnesses on the side of the prosecution for proving the charge of 302 of the IPC and also the charges in respect of other offences. Therefore, perusing the evidence deposed by these 11 witnesses we are of the opinion that they are the material witnesses as submitted by the learned counsel appearing for the appellants.-. 14 - 11. It is no doubt, looking to the materials on record the trial Court at one point offered to the accused that if they wanted to have the legal assistance, free legal aid will be given to them to go on with the matter, but the accused No.1 refused to have the legal assistance submitting that he wanted to cross-examine the witnesses and even we have gone through the cross-examination done by the accused No.1 himself after recalling of PWs.1 and 2. Looking to the cross examination of PWs.1 and 2 after recall of these two witnesses, accused No.1 asked some 2-3 questions only to each of the witnesses. On the basis of this cross-examination it cannot be said that there is effective cross- examination of this accused No.1 of the prosecution witnesses. The accused during the course of trial ought to have been provided with the competent legal assistance by the Court even though the accused refused to have such assistance at the hands of the Court.-. 15 - 12. The sole aim of the law is approximation of justice. A-judge is looked as an embodiment of justice assurance of fair trial is the first imperative in the dispensation of justice. It cannot be denied that one of the most valuable right of our citizen is to get a fair trial free from an atmosphere of prejudice. This right flows from Article 21 of the Constitution of India, which it makes obligatory upon the state not to deprive the right to liberty except according to the procedure established by law. This preposition of law been laid down in the case of Smt. Meneka Sanjay Gandhi and Another Vs. Miss Rani Jethmalani reported in AIR1979SC468 13. One of the components of fair procedure in the administration of criminal justice is that the accused has the opportunity of making his defence by a legal practitioner of his choice. This is his constitutional right guaranteed under Article 22 of the Constitution. In order to give effect to this right, it - 16 - has been embodied in Directive Principles of State Policy under Article 39-A of Constitution. Which says that the state shall secure equal justice and free legal aid by a suitable legislation or scheme or any other way to ensure that the opportunities for securing justice or not denied to any citizen by reason of economic or other disabilities. That right has also been statutorily accepted and incorporated under Section 303 of Cr.P.C and under Legal Service Authorities Act of 1987.

14. To give a legal assistance is a constitutional mandate under Article 21 read with Article 39A, the right to legal assistance is reasonable fair, just and implicit in Article 21. Even it is well settled that court cannot over ride the principle of “Audi Alteram Partem”. If no proper and effective representation is there it violates above said principles when there was violation of fundamental principles of judicial procedure on account of breach of the mandate of the constitution, denial of opportunity to the accused to - 17 - cross-examine the prosecution witnesses amounts to denial of opportunity. In that light question of going into the merits of the appeal is out of the way and the only course open to this court is to send back the case to trial Court to decide afresh.

15. At this juncture we place it on record that appointment of legal practitioner to assist the accused is not a mere formality it must take into consideration of the fact that the legal practitioner appointed to represent the accused must be competent and there must be effective representation especially when the offences alleged are serious and case is punishable with capital punishment or life imprisonment. If such assistance is not there, then also it is going to violate the constitutional mandate.

16. As held by the Hon’ble Apex Court as well as this Court in the decisions relied upon by the learned counsel for the appellants it is held that, to have a free legal and competent legal assistance is concerned while interpreting Article 21 of the - 18 - Constitution of India it is the duty of the Court to see that the accused are represented effectively during the course of the trial, then only it can be said that there is fair trial. This preposition of law has been laid down in the case of Abdul Azeez (quoted supra). For the purpose of brevity we quote paragraphs 7 and 10 which reads as under; “7. Cr. A. No.269 of I960 arose out of Sessions Case No.1 of 1960. The Sessions Judge had acquitted this very accused of the charge of murder. The State preferred Cr. A. No.269 of 1960. The accused had refused legal assistance both in the Sessions Court and in this Court. In this context this Court observed in its judgment as follows: “It is unfortunate that the respondent refused to avail of the legal assistance offered by the Court on behalf of the State, during the trial of the case. In this Court also, he refused our offer of legal assistance. He had chosen to conduct his own case both in the trial Court as well as in this Court. He is no - 19 - doubt an intelligent person and has presented his case reasonably well. But an accused conducting his own case is always confronted with certain difficulties which are inherent in the very nature of things and those difficulties are necessarily aggravated when he is not well versed in law and procedure. In such a situation, it is the duty of the Presiding Judge or Judges to safeguard the legitimate interests of the accused. Sometimes, it may even become necessary for him to question the witnesses somewhat elaborately to elicit the relevant facts. But a Judge placed in such a situation must guard against the danger of his identifying with the defence by unconsciously playing the role of the defence counsel. He must constantly bear in mind his true role.” We respectfully agree with the learned Judges. Our opinion is that the above principles aptly apply to the present facts and circumstances.-. 20 - 10. In the first instance only a charge under Section 302, of the Indian Penal Code was framed and the trial proceeded. After all the witnesses were examined to prove the charge, the Public Prosecutor filed an application under Section 540 of the Code of Criminal Procedure (old) praying for permission to examine three witnesses not named in the charge-sheet. Permission was granted by the Sessions Judge and a next date for continuing the trial was fixed. On that date, the Public Prosecutor filed a memo for framing of a charge under Section 303 of the Indian Penal Code in proof of which the said three witnesses were to be examined. The learned Sessions Judge framed charge under Section 303 of the Indian Penal Code after observing the requirements of law and then the said three witnesses were examined. By yet in another decision in the case of Khatri and Others Vs. State of Bihar and Others (quoted - 21 - supra) draws our attention to the relevant paragraphs 5 and 6. Those paragraphs reads as under:

5. That takes us to one other important issue which arises in this case. It is clear from the particulars supplied by the State from the records of the various judicial magistrates dealing with the blinded prisoners from time to time that, neither at the time when the blinded prisoners were produced for the first time before the judicial magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners. The records of the judicial magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked for it nor did the judicial magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the - 22 - blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it. The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail. It isdifficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatonn (IV) case. This Court has pointed out in Hussainara Khatoon (IV) case which was decided as far back as 9th March, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case andthe - 23 - needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21, most of the States in the country have nottaken note of this decision and provided free legal services to a person accused of an offence. We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration inArticle 141 that the law declared by this Court shall be binding through-out the territory of India. Mr. K. G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficulty to do so owing to financial constraints. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by - 24 - pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem v. Malcolm. "The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson vs. Bishop, "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations."

Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as - 25 - soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.

6. But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that - 26 - percentage of people are not aware of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the sessions judge before whom the accused appears must be held to be 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. Unfortunately, the judicial magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the - 27 - magistrates and Session Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of to the State. Unless he is not willing take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic - 28 - offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State. In the decision of Suk Das (quoted supra) it has been observed in paragraphs 5 and 6 which read as under:

5. It is now well established as a result of the decision of this Court in Hussainara Khatoon's case that (SCC p.105, para

7) The right to free legal service is .......... clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held to be implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person - 29 - if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer". This Court pointed out that it is an essential ingredient of reasonable, fair and just procedure to prisoner who is to seek his liberation through the court's process that he should have legal service available to him. The same view was taken by a Bench of this Court earlier in M.H. Hoskot v. State of Maharashtra. It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involved jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognised that there may be cases involving offences, such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social - 30 - justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellant was entitled to free legal assistance at State cost when he was placed in peril of his personal liberty by reason of being accused of an offence which if proved would clearly entail imprisonment for a term of two years.

6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him?. Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon - 31 - them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advise in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable - 32 - condition in which the poor finds themselves can be alleviated to some extent by creating legal awareness amongst the poor. That is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. This is the reason why in Khatri (II) v. State of Bihar, we ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be 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. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge their obligation and - 33 - contented themselves by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed "the Magistrates and Sessions Judges in the country to inform every accused who appear before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State" unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country "to make provision for grant of free legal service to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situations," the only qualification being that the offence charged against an accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and that the needs of social justice require - 34 - that he should be given free legal representations. It is quite possible that since the trial was held before the learned Additional Deputy Commissioner prior to the declaration of the law by this Court in Khatri (II) v. State of Bihar, the learned Additional Deputy Commissioner did not inform the appellant that if he was not in a position to engage a lawyer on account of lack of material resources he was entitled to free legal assistance at State cost nor asked him whether he would like to have free legal aid. But it is surprising that despite this declaration of the law in Khatri (II) v. State of Bihar on December 19, 1980 when the decision was rendered in that case, the High Court persisted in taking the view that since the appellant did not make an application for free legal assistance, no unconstitutionality was involved in not providing him legal representation at State cost. It is obvious that in the present case the learned Additional Deputy Commissioner did not inform the - 35 - appellant that he was entitled to free legal assistance nor did he inquire from the appellant whether he wanted a lawyer to be provided to them at State cost. The result was that the appellant remained unrepresented by a lawyer and the trial ultimately resulted in his conviction. This was clearly a violation of the fundamental right of the appellant under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellant must be set aside. Lastly in the case of Rakesh Kumar Poul it has been observed at paragraphs 43 and 44 which reads as under: “43. This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes, it is the obligation of the court to inform the accused that he or she is entitled - 36 - to free legal assistance as a matter of right. In Khatri (2) v. State of Bihar the Judicial Magistrate did not provide legal representation to the accused since they did not ask for it. It was held by this Court that this was unacceptable and that the Magistrate or the Sessions Judge before whom an accused appears must be held under an obligation to inform the accused of his or her entitlement to obtain free legal assistance at the cost of the State. In Suk Das v. UT of Arunachal Pradesh the accused was tried and convicted without legal representation, due to his poverty. He had not applied for legal representation but notwithstanding this, this Court held that the trial was vitiated and the sentence awarded was set aside, particularly since the accused was not informed of his entitlement to free legal assistance, nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo v. State of MP, the High Court dismissed the appeal of the accused without enquiring whether - 37 - he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatri and Suk Das this Court remanded his appeal to the High Court for re-hearing after giving an opportunity to the accused to take legal assistance. Finally, in Mohammed Ajmal Amir Kasab v. State of Maharashtra this Court relied on Khatri and held in paragraph 474 of the Report as follows: (Mohd. Ajmal Case, SCC p.186) “474.… it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the - 38 - country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings.” 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to “default bail”, to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav.” 17. We also of the opinion that we are having the principle that justice not only be done but it seems to have been done. Considering these aspects - 39 - of the matter and looking to the materials in this case, as majority of the witnesses who are material witnesses spoken about the important aspects of the matter, the accused persons have not at all cross- examined these 11 witnesses though the other witnesses have been cross-examined. It is no doubt true that at the subsequent stage after the standing counsel retired from the case another counsel also appeared in the matter and cross-examined some of the witnesses who have been examined after the appearance of the said counsel, but that is not sufficient to hold that through out the entire trial of the case, the accused persons have been properly and effectively represented in the case. Hence, we are of the opinion that the matter requires to be remanded back to the trial Court giving an opportunity that the accused persons must be given proper representation by appointing the competent advocate to represent the accused persons. We are also of the opinion that both sides are at liberty to re- call the witnesses, if they wanted to examine further - 40 - and they can make request before the concerned trial Court accordingly.

18. Hence, we allow the appeal, set aside the judgment and order of conviction passed by the Court below as well as sentence imposed and we remanded the matter to the concerned trial Court for fresh disposal and also the concerned trial Court to see that the competent legal assistance has to be given to accused Nos.2 and 3 to go on with the matter by making necessary applications. The trial Court is directed after giving opportunity to both sides, then the concerned trial Court has to dispose of the matter afresh. Liberty is given to counsel who is going to be appointed to represent the accused persons to make necessary application to recall and further cross-examine the other witnesses also if he feels it is necessary. Since the crime is of the year 2008 and we are in 2018, the concerned trial Court is directed to take up the matter on priority basis and to dispose of the - 41 - matter as early as possible, but not later than six months from the date of receipt of copy of this order. Sd/- JUDGE Sd/- JUDGE *AP/-