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2018 Supreme(Kar) 306
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
BUDIHAL R.B., B.A. PATIL, JJ.
Chandrakanth S. Sharma S/o Sundarlal Sharma - Appellants
Vs.
State of Karnataka – Respondent
Criminal Appeal No. 673 of 2014
Decided On : 06-07-2018
For the Appellant : Sri Hashmath Pasha
For the Respondents: Smt. Namitha Mahesh B.G.
Headnote:CONSTITUTION OF INDIA - Articles 22 & 39-A & Cr.P.C., Section 303 - Administration of Criminal Justice - Fair trial - Held, 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. 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 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. To give a legal assistance is a constitutional mandate under Article 21 read with Article 39-A, 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 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. 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 of life imprisonment. If such assistance is not there, then also it is going to violate the constitutional mandate.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Sections 302 & 201 - Remand - Accused refusing to have legal assistance - As a result no effective cross-examination of material witnesses - Court ought to have provided accused with competent legal assistance - Justice not only be done but it seems to have been done - Judgment of conviction set aside - Matter remanded back to trial Court - Liberty given to both parties to recall witnesses.
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 and 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.
2. The brief facts of the prosecution case as per the averments made in the appeal memorandum at paragraph 8 that premises No. 239B, 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 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 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.
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 acco
