2006 Supreme(AP) 626

Andhra Pradesh High Court
Judges : .
H. K. SATHISHA - Appellant
Versus
STATE - Respondent
Decided On : 06/09/2006
Criminal Appeal 1065 Of 2002

Headnote:Constitution of India—Article 21—Fair trial—A trial without affording an adequate opportunity to accused to cross-examine the witnesses could not be said to be a fair trial from the point of view of accused—Appellant accused was convicted under Section 302 and 307 IPC for murder of his brother and attempt to murder of his father—When the case was set down for trial, Counsel appearing for accused filed a retirement memo—Accused refused the legal aid and trial Court proceeded to record evidence—None of the prosecution witness was cross-examined—Case was set for examination of accused under Section 313 CrPC when an advocate for accused filed vakalat and made an application under Section 311 CrPC for recalling all prosecution witnesses for cross-examination—Trial Court dismissed the application—Whether trial stood vitiated for non-providing of opportunity to accused ? Yes.

       Held: It is unfortunate that the accused refused to avail of the legal assistance offered by the Trial Court at the State expense, when the Counsel appearing for him filed the retirement memos. It is equally unfortunate that subsequently when the accused had engaged an Advocate and sought for recalling of the prosecution witnesses for the purpose of cross-examination, the same was refused by the Trial Court. No doubt the Trial Court had its own constraints in view of the time frame fixed by this Court for the trial and the accused had adopted his own tactics to prolong the trial obviously with intent to secure the benefit of bail during the trial. But then having regard to the nature of the charges framed against the accused, the Trial Court ought to have safeguarded the legitimate interest of the accused. It would be of some relevance to note here itself that everyone charged with a criminal offence has the following minimum rights: (a) to defend himself in person or through legal assistance of his own choosing or, if he has no sufficient means to pay for legal assistance, to be given it free when the interests of justice is so required; (b) to examine or have examined witnesses against him and to obtain his attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; and (c) to have a free assistance of an interpreter if he cannot understand or speak the language used in Court. In the determination of any criminal charge against him, everyone is entitled to fair trial within a reasonable time by a Court of law. Free and fair trial is a sine qua non of Article 21 of the Constitution. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty trial. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. A trial without affording all adequate opportunity to the accused to cross-examine the witnesses called on behalf of the prosecution cannot be said to be a fair trial from the point of view of the accused. A trial which is primarily aimed at ascertaining the truth has to be fair to all the concerned. (Para 6)

       The Trial Court has not adopted the procedure indicated in the above two decisions of this Court rendered by the Division Bench. In the instant case also, the Trial Court ought to have, in the interest of justice, either itself tested the evidence of the prosecution witnesses by putting questions in order to get the relevant facts elaborately elicited or appointed a competent Counsel to defend the accused in the case and thereby assist the Court in doing justice in the matter. The Trial Court having not done so, we are of the view that the case has to be remitted to the Trial Court for fresh disposal according to law. The procedure adopted by the Trial Court is not in our opinion a correct procedure. It is no doubt true that the appellant accused was trying to dodge and prolong the trial and he was not at all diligent in conducting the trial of his case. But then, the Trial Court was not so helpless as not to deal with such a situation. It could have adopted the procedure prescribed by this Court in the above two decisions. But unfortunately the Trial Court instead of dealing with the situation in the manner as prescribed therein, proceeded to hold the trial wherein the prosecution witnesses could not be cross-examined, nor the accused could be questioned under Section 313 of the Cr.P.C. Thus the trial proceeded one sided. No doubt the accused was mainly responsible for the situation that was brought out during the trial and the Trial Court may be right in proceeding with the trial to curb the tactics adopted by the accused to prolong and dodge the trial. However while dealing with such tactics adopted at the trial by the accused, the Trial Court ought not to have given an impression that the accused did not have a fair trial before it. We find that the Trial Court in its anxiety to dispose of the case within the time frame fixed either by this Court or by the Apex Court has disposed of the case in such a way that it gives an impression that the accused did not have a fair trial. Under the circumstances, therefore, we are left with no other alternative except to set aside the conviction and sentence passed against the accused-appellant by the Trial Court and remit the case for fresh disposal according to law. (Para 9)

       Result: Appeal allowed accordingly.