Chet Ram vs The State of Rajasthan

R.S. Chauhan, J.—Petitioner has challenged the order dated 30.3.2005, whereby his application moved u/s 311 Cr.P.C. for recalling the witnesses for the purpose of cross-examination has been dismissed by the learned trail Court.

Mr. Praveen Balvada, learned counsel for the Petitioner submits that the petitioner is not only an illiterate but also a poor person who has not been able to engage a counsel to defend himself in the trail. He further states that the trail Court has not appointed anyone as an Amicus Curiae to plead the case of the petitioner. Since, no counsel was present to represent the cause of the accused petitioner, therefore, no cross-examination could be done on behalf of the accused petitioner. Therefore, according to the learned counsel for the petitioner a grave injustice has been caused to the petitioner by dismissing the said application filed u/s 311 Cr.P.C.

On the other hand, learned P.P has argued that the statements of the witnesses were recorded in the presence of the accused petitioner but the accused petitioner did not bother to cross-examine the witnesses. He farther contends that the application filed u/s 311 Cr.P.C. has been moved only as a subter-fudge to prolong and delay the trail. Therefore, he has supported the impugned judgment.

We have heard the learned counsels for the parties and perused the material on record.

Undoubtedly, the right to defend oneself in a criminal trail is a fundamental right which flows from Article.21 of the Constitution of India. After all, the accused person has a right to defend himself against the allegations levelled by the State. Both under the Constitution of India and also u/s 304 Cr.P.C. the accused is entitled to a counsel to defend himself at the expenses of the State. Therefore, The learned trail Court should have taken note of the fact that the accused petitioner does not have a counsel to represent his case before the trail Court. The trail Court should have appointed a counsel of eminence to defend the poor accused. In case an opportunity to cross-examine the witnesses is not given to the petitioner, it would tantamount to condemning him unheard. It is indeed, tried to state that no person can be condemned unheard. Further it is settled principle of law that justice should not only be done, but it must appear to be done. The accused petitioner has not only right to defend himself, but also has a right to be convinced that justice has been done to him.

Hence, in the interest of justice, we set aside the impugned order dated 30.3.2005 with the following direction:

Learned trail Court is directed appoint a counsel of eminence for defending the case of the petitioner immediately;

Trail Court is further directed to recall the witnesses P.W.2 Gulab Singh, P.W.6 Sumer Singh, P.W.7 Hari Ram, P.W.8 Veer Singh, P.W.10 Devi Lal and P.W.12 Maghar Singh, so that they may be cross-examined by the counsel for the petitioner; and

We direct the accused petitioner to cross-examine the aforesaid witnesses on the date, they are produced in the Court so that the trail may be completed at the earliest.

With the aforesaid directions, the revision petition is allowed.