Santosh Tarachand Rathod vs State of Maharashtra

Sadhana S. Jadhav, J.—Heard, learned A.P.P., has placed on record the certified copy of the rozanama. It would substantiate the allegation made by the Counsel for the applicant on the last occasion. The charge-sheet was filed. In the present case, on 22/4/2013, applicant herein was charge-sheeted for offence punishable under sections 354, 376 and 511 of Indian Penal Code and sections 7 and 8 of Protection of Children from Sexual Offences Act, 2012. The compilation of the charge-sheet would show that witnesses have given consistent statement that on 17/3/2013 mother had picked up the child from the house of the applicant and had taken her home. When the child was taken home, she was fully dressed. At that juncture, she had not disclosed to her mother that she had been ravished by the present applicant. Compilation of the charge-sheet do not contain the statement of the victim. The statement of the victim was recorded on 11/6/2013. On 14/6/2013 the Investigating Officer had filed an application u/s 173(8) of Code of Criminal Procedure, 1973 seeking permission from the Magistrate to include the statement of the victim compilation of the charge-sheet. On 14/6/2013, the Magistrate had granted permission.

The copy of the said statement was not given to the accused/applicant. On 8/8/2013, in the course of hearing of the application for bail filed by the present applicant in this Court, the Counsel representing the applicant had specifically submitted that the charge was framed against the accused on 29/7/2013 and on 8/8/2013, the witnesses were examined. The lacuna was demonstrated by the Counsel for the applicant. Learned APP had submitted that the statement of the victim recorded on 11/6/2013 was not given to the accused. In fact, it was incumbent upon Sessions Judge to given legal assistance to the accused as contemplated u/s 304 of Code of Criminal Procedure.

Learned APP submits that on 17/8/2013, the accused had submitted to the Court that he would keep an Advocate present on next date. It is admitted position that on the date when witnesses were being examined, accused was not duly represented and Sessions Court had lost sight of this fact. On 8/8/2013, this Court had passed an order that Sessions Court shall see to it that the trial against the applicant does not proceed without giving him proper legal aid as contemplated u/s 304 of Code Criminal Procedure, 1973.

On 19/8/2013, this Court had directed the Registry to obtain a report from the concerned Court in Sessions Case No. 496/2013 about the progress and stage of the trial by 21/8/2013. On 19/8/2013, the Counsel representing applicant had submitted that on 17/8/2013 learned Sessions Court had adjourned the matter and has imposed a cost of Rs. 1500/- upon accused/applicant. Certified copy of the rozanama is taken on record and marked as Article ''X'' It is reflected in the rozanama that on 17/8/2013, accused had paid Rs. 1000/- to the complainant towards travelling allowance. Accused had stated before the Court that he had engaged Counsel. In fact that pertained to the Advocate representing accused/applicant in the High Court. Mr. Ponda submits that he is not representing the accused at the trial. No Advocate has filed Vakaltnama.

Learned Sessions Court ought to have called upon the accused/applicant to see that he files Vakalatnama of any Counsel representing him. It is farther observed that victim girl was examined on the last date and her cross-examination was adjourned as accused applied for adjournment on the ground that his Advocate is busy in the High Court. It is pertinent to note that on 8/8/2013 also the accused was saddled with the cost of Rs. 1000/- which was paid to the victim girl. On 17/8/2013 P.W. 1 was to be cross-examined. On the same day, Sessions Judge has imposed fine of Rs. 1500/- upon accused as the matter was adjourned. Learned Sessions Court was fully aware that the application was pending before the High Court and grievances were made by the accused that the trial is not being conducted in accordance with the established procedure. The office record shows that the order Dated 8/8/2013 passed by this Court was communicated to the Additional Sessions Judge., Bombay and Deputy Commissioner of Police, Zone 7.

It is sorry State of affairs that in spite of bring it to the notice of the Sessions Court that an application is pending before the High Court and the High Court has specifically observed that the trial shall not proceed without giving him proper legal aid. The trial has proceeded. The victim has been examined on 8/9/2013 and on 17/8/2013 accused was saddled with cost.

Learned Counsel representing the applicant submits that the applicant works on daily wages and it is difficult for him to make both his ends meet. Irrespective of the fact that it is heinous offence, the Law contemplates that the accused should have been given legal aid in the interest of justice. The Assistant Commissioner of Police is present in the Court along with the Investigating Officer and the Senior Police Inspector of Navghar Police Station. The Police Department shall pay a cost of Rs. 2000/- to the accused who was left unrepresented at the time of the trial. The prosecution ought to have reminded the Court and apprised the Court of the fact that the High Court has stayed the proceeding.

Learned Counsel for the applicant has placed reliance on section 304 of Code of Criminal Procedure, 1973 which read thus:

"(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for-

(a) the mode of selecting, pleaders for defence under sub-section (1)

(b) the facilities to be allowed to such pleaders by the courts.

(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purpose of sub-section (1)

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions for sub-sections (1) & (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the courts of Sessions."

Learned Counsel for the applicant submits that Sessions Court has examined the victim in presence of the accused not being represented by any Advocate and therefore he has been denied a fair trial. Advocate who would represent the accused at the time of trial would have an occasion to appreciate the demeanor of the victim at the time of recording her substantive evidence. Moreover the accused could not have cross-examined the victim as the copy of her statement recorded u/s 161 of Code of Criminal Procedure was not furnished to the accused on the ground that he was not represented by an Advocate. It would be difficult to accused to ascertain as to whether she was prompted or whether her statement happened to be voluntary and truthful statement.

Section 309 of Code of Criminal Procedure, 1973 contemplates that the inquiry or trial related to offence punishable u/s 376 of Indian Penal Code shall as far as possible be completed within a period of 2 months from the date of filing of the charge-sheet. In the present case, accused has remained in jail since 20/3/2013 and the charge-sheet was filed on 11/6/2013. Counsel for the applicant prays for enlarging the applicant on bail to enable him to engage an Advocate of his choice. The law is stringent in respect of offences against children by virtue of Protection of Children from Sexual Offences act, 2012. In view of this, this Court is inclined to grant bail to the applicant for a period of one month during which he may engage an Advocate to represent him at the trial or otherwise seek legal aid. Learned A.P.P. vehemently opposed to grant of temporary bail. Learned A.P.P. submits that accused is permanent resident of Karnataka and once released on bail, he may not be available to face charges levelled against him. At this juncture, Counsel for the applicant submits that although he is permanent resident of Karnataka, he is staying in Sunil Vihar, Navghar Gulli, Mulund East since one year with his maternal uncle Laxman Chavan who resides at Plot No. 228, Vashigaon, Vashi, Navi Vashi, Mumbai Thane.

ORDER

i) Application is allowed.

ii) applicant be enlarged on bail on furnishing personal bond of Rs. 10,000/- along with cash surety.

iii) He shall report to Vashi Police Station, every alternate day between 7.00 p.m. to 9.00 p.m.

iv) Applicant shall not enter in jurisdiction of Chembur Police Station during his stay at Thane.

v) Applicant shall surrender before the Sessions Court on 24/9/2013.

vi) Learned Sessions Judge shall conclude the trial within one month after applicant surrenders.

vii) Applicant shall not file any application seeking extension of relief granted by this Court.

viii) This order shall not be construed as a stay to the proceeding.

ix) Applicant may engage an Advocate or seek legal aid as early as possible.