GOVINDARAJU @ KUTTI vs THE STATE OF KARNATAKA. CRIMINAL APPEAL No.1459/2019. Decided on 23 DECEMBER, 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357186/1/CRLA1459-19-23-12-2020.pdf
Para 22. We have come across several cases, wherein the trial Courts during trial when the accused counsel was absent, closes the cross-examination of the defence as nil and proceed to pass the judgment of conviction and order of sentence against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the counsel for the defence was not present on the particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that opportunity should be given to the accused to engage the services of counsel or it is the duty of the Court to ensure to provide free legal assistance to the accused by appointing advocate from the Legal Services Authority, in order to provide fair trial.
23. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf. In those circumstances, the Court should act as Societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. Because of the mistake committed by the learned counsel for the accused, the accused should not be denied opportunity to cross- examine the prosecution witnesses. Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure.
24. In view of the above, in the present case, the trial Court is not justified in convicting accused without providing an opportunity to the accused to cross-examine the prosecution witnesses, which is nothing but denial of fair trial.
25. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashok Debbarma v. State of Tripura reported in (2014)4 SCC 747, wherein the Hon’ble Supreme Court held at paragraphs 35 to 38 as under:
“35. Can the counsel’s ineffectiveness in conducting a criminal trial for the defence, if established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW 1 and few other witnesses. Further, it was pointed out that the counsel also should not have cross-examined PW 17, since he was not put to chief-examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 : 466 US 668 (1984)] , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal right of the accused to have a fair trial, which the accused was deprived of.
36. Right to get proper and competent assistance is the facet of fair trial. This Court in M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] , State of Haryana v. Darshana Devi [(1979) 2 SCC 236], Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] and Ranjan Dwivedi v. Union of India [(1983) 3 SCC 307 : 1983 SCC (Cri) 581], pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution. Section 304 CrPC provides for legal assistance to the accused on State expenditure.
38. Right to get proper legal assistance plays a crucial role in adversarial system, since access to counsel’s skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 : 466 US 668 (1984)] , the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel’s errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel’s unprofessional errors, the results would have been different.
26. For the reasons stated above and in the light of the principles enunciated in the dictums of the Hon’ble Supreme Court stated supra, we answer the point raised in the present criminal appeal in the affirmative holding that the appellant – accused has made out a case to remand the matter to the trial Court for providing an opportunity to him to cross-examine the prosecution witnesses, in order to fulfill the constitutional mandate as provided under Articles 21, 22(1) and Article 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure.
Appeal allowed. Matter remanded to trial court.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 