The main legal point established is the accused's right to legal representation and fair trial under Section 303 Cr.P.C. and Article 21, 22(1) Constitution of India.

1. Aggrieved by the order of the learned I Additional Sessions Judge, Coimbatore, in dismissing his petition in C.M.P.No.33 of 2013 under Section 311 Cr.P.C., to recall the prosecution witnesses for cross-examination, the accused in SC.No.66 of 2011 has come forward with this petition under Section 482 Cr.P.C.

2. The sole accused is being prosecuted in S.C.No.66 of 2011, for having alleged to have committed murder for gain. He is facing serious charges for offences under Section 451, 392, 302, 201 r/w 302 IPC. Thus, it includes capital charges also. Minimum is life imprisonment and maximum is taking away his life itself.

3. Trial started. Prosecution produced its witnesses. The accused himself cross examined the witnesses. He was not defended by a legally trained person. Later, he has engaged a lawyer to defend him. By the time, many witnesses were examined. The Investigation officer also has been examined in chief.

4. At this juncture, the newly engaged defence counsel rightly applied for recalling the witnesses filing C.M.P.No.33 of 2013 under Section 311 Cr.P.C. to cross exam them. Subsequently, memo was filed restricting the number of witnesses to be recalled. Ultimately, by his impugned order dated 22.4.2013, the learned I Additional Sessions Judge, ordered recalling of only P.Ws.5 and 17.

5. Aggrieved, the accused is before us.

6. A reading of the impugned order shows that the learned Additional Sessions Judge was under the impression that recalling of all the witnesses would amount to retrial and thus it is impermissible.

7. The learned counsel for the petitioner submitted that the petitioner could not engage a counsel to cross examine the witnesses, now, he has engaged an Advocate to defend him, an opportunity is sought for to test the veracity of the deposition of the prosecution witnesses. The trial Court has neither appreciated the scope of section 311 Cr.PC. nor applied settled principles of law and thus the defence is greatly prejudiced.

8. The learned Additional Public Prosecutor submitted that the attempt of the accused to protract the trial has been rightly scuttled by the trial Court.

9. Section 311 Cr.P.C. gives opportunity to the defence/accused as well as to the State/prosecution to bring to the Court the evidence which is very essential to render a just decision. It could be resorted to at any stage of the case, however, before pronouncing the judgment. It is a dimension of principles of natural justice, namely, 'hear before condemn'. The 'hearing' will be 'mere formality' if reasonable opportunity is not given.

10. The basic principle of English criminal law, namely, the allegations/charges levelled against the accused must be proved beyond all reasonable doubts has been imported to Indian Criminal Law. Even now, this is the position of law in India except certain statutory tinkering, for instance, offences under Section 306, 304-B IPC. Thus, every one is presumed to be innocent till the guilt alleged is proved. It is said that 'one's presumption of innocence itself is his basic human right'.

11. This is the position during pre and also post constitutional era. It flows from Article 21, Constitution of India, which guarantees 'life' and 'personal liberty' to every one. They can be taken away 'only' by a 'procedure' established by law. The procedure must be 'fair and reasonable'. Thus, when there are provisions affecting or taking away one's personal freedom, the procedure must have statutory birth and it must be fair and also reasonable.[See Maneka Gandhi Vs. Union of India (1978(1) SCC 248)].

12. As per Article 22(1) Constitution of India, persons accused of having committed offences are entitled to be defended by a legal practitioner of their choice. It is an extension of principles of natural justice, namely, 'hear before condemn'. This has been further strengthened by Sections 303 and 304, Criminal Procedure Code, 1973. Section 303 Cr.P.C. reiterates the constitutional mandate enshr