( 1 ) IN this Conviction Appeal instead of concerning with the merits of the case, I feel, I am concerned with a technical off-shoot. The question before me is in respect of the real intent and spirit of Art. 21 of the Constitution of India and the provisions contained under Sec. 304 of the Criminal Procedure Code, together with the provisions contained under Paragraph 125 of the Criminal Manual.

( 2 ) THE appellant accused came to be prosecuted for the alleged commission of the offence punishable under Secs. 376 and 502 of Indian penal Code on the accusation that on 7-6-1991 at village Bhilwada under palitana taluka of Bhavnagar district, the appellant accused ravished the minor prosecutrix against her will and without consent. The proceedings have resulted in the judgment of conviction and sentence, under which the appellant accused is sentenced to the R. I. for seven years and a fine of rs. 1000/-, in default to the R. I. of six months for the offence punishable under Sec. 376 of Indian Penal Code. So far as the offence under Sec. 506 (2) of Indian Penal Code is concerned the appellant accused has been sentenced to the R. I. of two years and to a fine of Rs. 500. 00in default to the S. I. for 3 months. The substantial sentences have been ordered to run concurrently.

( 3 ) AS pointed out earlier, I am concerned with the technical flaw in the proceedings before the learned Addl. Sessions Judge, Bhavnagar who has conducted the Sessions Case against the accused and ultimately found him guilty for the said offences. The learned Counsel Mr. Yogesh Mankad appearing on behalf of the appellant would urge that, under the provisions contained under Art. 21 of the Constitution of India and under Sec. 304 of the Code of Criminal Procedure, 1974 and Criminal Manual, both the learned Committal Magistrate and learned Sessions Judge were required to ascertain as to whether it was possible for the appellant accused to engage a lawyer to defend him in the case, and that if not done, the technical flaw would result into the violation of the Constitutional guarantee provided to the appellant accused under Art. 21 of the Constitution of India. The learned Counsel would also urge that, in the same way the statutory provisions contained under Sec. 304 of Criminal Procedure Code would stand violated along with the provisions contained under the Criminal manual.

( 4 ) WHEN the R and P of the case is perused, it appears very clearly that the learned trial Magistrate was conscious of his obligations and duties under the above said provisions, and therefore, a clear ascertainment was made before the orders of committal were pronounced. It was inquired of the appellant-accused as to whether in the Sessions Case against him, before the Sessions Court, would he be able to engage a lawyer for his defence or would he like to have his defence arranged at the cost of the government. To such a particular query made by the learned Committal magistrate, the appellant accused had stated in no uncertain terms that, he would engage a lawyer of his own choice by making necessary arrangements. Any how, this does not appear to have happened when the Sessions trial against the appellant accused had commenced before the learned Sessions judge. The case sheet would go to show that the name of a learned advocate, namely Mr. D. S. Trivedi appears to have been shown in the case sheet, as the Advocate or the lawyer who would defend the case of the appellant accused. Any how, a further verification of the R and P would reveal that no such Vakilatnama exist on the record. The evidence recorded by the learned Additional Sessions Judge also would go to show that there was no lawyer to defend the case of the appellant accused. In background of this, the contention being raised by the learned Counsel for the appellant, that at the Sessions trial stage the above said formality of ascertaining as to whether the appellant accused shall engage a lawyer or would he require the