Back
2019 Supreme(Ori) 584
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. MISHRA, A.K. MISHRA, JJ.
Ashok Majhi - Appellant
Versus
State of Orissa - Respondent
CRLA No. 255 of 2017
Decided On : 16-08-2019
The fundamental right to a fair trial and legal representation is essential, and the court has a duty to ensure a fair and impartial trial for the accused.
Headnote:
FAIR TRIAL - CRIMINAL TRIAL - SECTION 302/34 IPC, SECTION 25(1-B)(a) AND SECTION 27(1) OF THE ARMS ACT - The court discussed the violation of the Right to Defence under Section 303 Cr.P.C. and the denial of fair trial to the accused. The judgment referenced the principles of fair trial, the right to legal aid, and the duty of the court to ensure a fair and impartial trial. The court ordered for retrial in exercise of powers of Appellate Court under Section 386 Cr.P.C.
Fact of the Case:
The appellant was convicted under section 302/34 IPC and sentenced to life imprisonment. The appellant's right to fair trial and legal representation was violated, leading to the denial of a fair and impartial trial.
Finding of the Court:
The court found that the accused was deprived of getting fair and impartial trial due to the absence of lawyers and Addl. P.P. The judgment highlighted the importance of fair trial and the duty of the court to ensure the accused's right to legal representation.
Issues: Violation of the Right to Defence, Denial of Fair Trial, Absence of Legal Representation
Ratio Decidendi: The court emphasized the fundamental right to a fair trial and legal representation, as well as the duty of the court to ensure a fair and impartial trial for the accused.
Final Decision: The conviction and sentence of the appellant were set aside, and the case was remitted back for retrial by the court of Addl. Sessions Judge, Sundergarh from the stage of defence.
ORDER :
1. At stake is the procedure adopted in a criminal trial by the learned Addl. Sessions Judge, Sundargarh in convicting the appellant under section 302/34 IPC and passing sentence of life imprisonment in ST. Case No. 62/60 of 2013. Because, the fair trial has not been given fair deal resulting the denial of right to accused to be defended by an advocate of his choice as mandated under Section 303 Cr.P.C. Outlining the core of context in the memorandum of appeal, we proceed to hear the appeal on merit.
2. Heard Mr. S.S. Ray learned counsel for the appellant who filed memo of appearance in the court today. The same be kept on record. We have also heard Mr. Sk. Zafarulla, learned counsel for the informant and Addl. Govt. Advocate, Mr. J. Katikia.
3. Perused the impugned judgment and the lower court record. The conviction and sentence having been challenged for want of fair trial, the facts need to be narrated in nutshell to address the same.
Learned counsel for the appellant Mr. Ray assails the conviction and sentence of the appellant on the ground that the Right to Defence has been violated and thereby the appellant-accused is deprived of getting fair trial. He relied upon a decision reported in AIR 2012 SC 750 Md. Hussain @ Julfikar Ali Vs. State (Govt. of NCT) Delhi.
The appellant as an accused faced trial for the charge under section 302/34 IPC, Section 25(1-B)(a) and Section 27(1) of the Arms Act.
The accusation against him was that on 21.5.2011 at 8.30 a.m. at Barangakhol forest chowk he committed murder of one Madha Minz by means of Gainti and fire-arms in furtherance of common intention with others.
On 20.06.2014, the accused did not plead guilty to the charges and also prayed the court that as he had no means to engage private defence, State defence counsel should be engaged to defend him. Accordingly, advocate Sri S. Panigrahi was appointed as State Defence Counsel by the learned Addl. Sessions Judge, Sundergarh. The trial was ensued, 10 witnesses were examined.
3.a On 11.11.2016, the statement of accused under Section 313 Cr.P.C. was recorded. On the prayer of learned State Defence Counsel, P.W. 8 was recalled for further cross-examination. It was completed on 21.01.2017. On 27.01.2017, the learned State Defence Counsel filed memo closing the defence evidence. On 3.2.2017, on being engaged by accused in custody, leaned advocate, Sri S.K. Mohapatra and others filed Vakalatnama. On that date petition under section 311 Cr.P.C. was also filed to recall P.W. 7 and the same was rejected. The case was posted for argument. Thereafter the trial suffered three adjournments. On 22.2.2017, accused was not produced. Neither the defence counsel nor Addl. Public Prosecutor appeared in the court.
On 2.3.2017, the accused was produced from custody but learned Defence Counsel did not turn up for argument. On 16.3.2017, a petition was filed for adjournment of the case and to provide a Legal Aid Counsel to argue the case of accused. On 17.3.2017, after hearing the accused, the case was posted to 21.3.2017 for argument. It was mentioned on that date in the order sheet that "since the local Bar Members have boycotted this court neither the Addl P.P. nor the defence counsel and Legal Aid Counsel turn up to the court to conduct the case of the accused. However, the accused is directed to come on the date fixed for argument positively." On 21.3.2017, accused was produced from custody and filed a petition for adjournment and the case was again adjourned to 23.3.2017 for hearing of argument. On that date again it was adjourned to 27.3.2017. On that date the accused expressed his inability to argue the case but the case was posted for judgment to the next date. On the next date, i.e., 28.3.2017 the accused filed a petition for time on the ground that advocates of the Bar were not turning up but the learned Addl. Sessions Judge did not allow further time and rejected the prayer. Thereafter, the judgment was pronounced convicting the accused-appellan
