Nagaraj vs The State

P. Devadass, J.—Accused/petitioner seeks to set aside the order dated 30.7.2013 passed by the Principal Sessions Judge, Thiruppur in

Crl. M.P. No. 1030 of 2013 in S.C. No. 23 of 2013. Heard both sides.

Nagaraj, the petitioner is being prosecuted before the said Judge, for offences under Sections 376(2)(f) of IPC and Section 5(c)(m) r/w Section

6 of the Protection of child from sexual offences Act, 2012 and 294(b) IPC. He is facing serious charges.

Petitioner is in jail. He is being produced before the Court from time to time. Prosecution examined P.Ws. 1 to 20. Their deposition has not

been tested by cross-examination. In the circumstances, petitioner filed a petition in Crl. M.P. No. 1030 of 2013 u/s 311 Cr.P.C.

On 30.7.2013, the learned Judge passed the following (impugned) order.

30.7.2013

Heard. P.W. 1 to 20 were examined on various dates in this Court. This petition has been filed through an advocate. The advocate concerned is

not present today. The petitioner could not explain the circumstances which will entitle him for recalling the witnesses. Omission to cross examine

then and there and filing application to recall all witnesses particularly 20 witnesses in this case cannot be encouraged for any reason. Hence, this

petition is dismissed.

xxx

Principal Sessions Judge,

Accused persons, who were alleged to have committed offences are entitled to be defended by a lawyer of his choice. This right of defence is

guaranteed under Article 22(1) of Constitution of India. Close on the heels is Section 303 Cr.P.C., This is a basic human right guaranteed to the

accused persons. This right is further strengthened by Section 304 Cr.P.C., which mandates providing of legal assistance to accused persons at the

expenses of the State.

It is a matter of ''access to justice''. It is not a matter to be found fault with the lawyer, who was not present on that day.

From the records, it is seen that as many as 20 witnesses were examined. At that time, the accused did not have the assistance of a lawyer. It is

his constitutional right. If a person, who is prosecuted for capital charges, is not defended by a lawyer, any amount of opportunity given to him will

be illusory as ''hearing him without the assistance of a lawyer is like hearing a deaf and dumb person''. Hearing the accused persons without

assistance of a lawyer is not giving him real opportunity.

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.

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 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, ].

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 reiterated in Sections 303 and 304,

Criminal Procedure Code, 1973. Section 303 Cr.P.C. reiterates the constitutional mandate enshrined in Article 22(1). Article 39-A, Constitution

of India provides for providing legal aid to needy persons. Section 304 Cr.P.C. directs the State to engage lawyer at its cost to defend a person

accused of having committed sessions offences.

In P. Sanjeeva Rao Vs. The State of A.P., , it is held that ""it is trite that the credibility of witnesses whether in a civil or criminal case can be

tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of

justice"".

In Natasha Singh Vs. CBI (State), , emphasising the observance of Human Right of accused persons in conducting trial, the Hon''ble Apex

Court observed as under:-

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any

manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper

opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no

circumstances can a persons right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right

would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously

followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain Vs. Madhukar Purshottam

Mondkar and Another, ; Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, ; Zahira Habibullah Sheikh and Another Vs.

State of Gujarat and Others, ; Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, ; Vijay Kumar Vs. State of U.P. and Another, and Sudevanand

Vs. State, ).

In Mohanlal Shamji Soni Vs. Union of India and another, , the Hon''ble Apex Court explained the extent and the scope of power of the Court

to recall the witnesses as under:-

The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to

summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the

court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the

requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.

In Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., , the Hon''ble Apex Court

considering the essential purpose of any trial or enquiry is, discovery of the truth observed as under:

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial

system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of

justice.

In this connection, in P. Sanjeeva Rao Vs. The State of A.P., , the Hon''ble Apex Court observed as under:-

We are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we

would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost.

Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to

prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.

Now, in this case, the accused is being prosecuted for having alleged to have committed certain serious offences exclusively triable by a Court

of sessions. The impugned order dated 30.7.2013 passed by the learned Principal Sessions Judge, Tiruppur shows that attempt has been made by

the petitioner''s counsel to recall the witnesses to cross examine them. Trial Court has not given any reasonable opportunity to the petitioner to

defend his case. The accused has not been offered real/reasonable opportunity to defend himself by having the assistance of a legal practitioner. It

will be infraction of his right of defence guaranteed to him u/s 303 Cr.P.C. read with Article 21, 22(1) Constitution of India.

Looking the matter in this perspective, the Order of the trial Court is not in accordance with law. In the circumstances, the impugned order of

the learned Principal Sessions Judge, Tiruppur, passed in C.M.P. No. 1030 of 2013 in S.C. No. 23 of 2013 is set aside. The learned Judge is

directed to recall P.Ws. 1 to 20 in a phased manner, give opportunity to the petitioner''s counsel to cross examine the witnesses and after giving

reasonable opportunity to both sides shall dispose of the case according to law at an early date. Accordingly, this criminal original petition is

disposed of. Consequently, connected miscellaneous petition is closed.