Hon’ble Manoj Misra, J.—Heard learned counsel for the applicant; the learned A.G.A. for the State and perused the record.

The instant application has been filed by an accused facing trial for offences punishable under Sections 363, 366 and 376 IPC for quashing of an order dated 4.2.2015 passed by the Additional Sessions Judge (Fast Track Court), Budaun in Session Trial No. 523 of 2012 (State v. Bhagwan Das) by which the application of the applicant for recall of the witnesses (P.W.1 to P.W.6) for cross-examination, has been rejected.

2. The case of the applicant is that in connection with the aforesaid offences he was arrested and bailed out, but, thereafter, he was again arrested in another case and had to remain in jail from 25.9.2012 to 15.11.2014 in which period the trial proceeded and prosecution witnesses i.e. PW1 to PW6 were examined whereas no counsel appeared on his behalf to cross-examine them, as a result, the prosecution evidence was closed. It his case that though, earlier, counsels were engaged by him but no one appeared on his behalf to cross-examine the witnesses because the applicant having been languishing in jail was unable to pay their fees and there was no one available to do pairvi on his behalf as his father had already died. It was thus prayed that as the applicant has now been bailed out and is in a position to engage counsel, the witnesses be recalled and the applicant be allowed to cross-examine them.

3. The Court below rejected the application by observing that there were counsels who had filed their power (vakalatnama) on behalf of the applicant but they did not appear to cross-examine; and as no prayer was made by the applicant to appoint an amicus curiae, it cannot be said that sufficient opportunity was not given to him to cross-examine the witnesses and, as such, the plea to recall the witnesses is only to delay the conclusion of the trial, therefore was worthy of rejection. The trial Court, however, neither recorded any finding that at the time when the trial proceeded and witnesses were examined, the accused was not languishing in jail nor it observed that services of an amicus curiae was offered by the Court to the applicant which he consciously refused to avail.

4. Challenging the order passed by the Court below, the learned counsel for the applicant submitted that every accused has a right to be represented by a lawyer at the commencement of the trial and during the course of the trial and it is the constitutional duty of the Court to provide him with a lawyer. It has been submitted that as the counsel engaged by the applicant had not appeared to conduct cross-examination and the applicant had not waived his right to be represented by a lawyer, the trial Court was under an obligation to appoint an amicus curiae to represent the applicant to cross-examine the witnesses. It has been submitted that mere not asking for being represented by a lawyer would not absolve the Court from its constitutional duty of appointing an amicus curiae to represent the accused unless the accused consciously refuses to be represented and takes upon himself the mantle of a cross-examiner. In support of his submission, the learned counsel for the applicant has cited before the Court a landmark judgment of the Apex Court in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharastra, 2012 (9) SCC 1, where, in paragraphs 474 and 477 of the report, the Apex Court had observed as follows :

“474. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practiti