Selvam vs State

T. Sudanthiram, J.—This revision is filed against the judgment passed in C.A. No. 5 of 2009 on the file of the Additional District-cum-

Sessions Judge (Special Court for EC Act Cases), Thanjavur dated 08.10.2009, confirming the judgment made in S.C. No. 6 of 2006 on the file

of the Assistant Additional Sessions Judge, Thanjavur dated 31.10.2007.

The revision Petitioner is an accused in S.C. No. 6 of 2006 on the file of the Assistant Additional Sessions Court, Thanjavur. He was convicted

for the offences under Sections 307 & 201 of I.P.C., and sentenced to undergo five years Rigorous Imprisonment and to pay a fine of Rs. 2,000/-

and in default to undergo six months Rigorous Imprisonment for the offence u/s 307 of I.P.C., and also to undergo one year Rigorous

Imprisonment and to pay a fine of Rs. 1000/- and in default to undergo three months Rigorous Imprisonment for the offence u/s 201 of I.P.C. The

said conviction were also confirmed by the learned Additional District-cum-Sessions Judge (Special Court for EC Act Cases), Thanjavur in C.A.

No. 5 of 2009. Aggrieved by the said conviction and sentence, the Petitioner herein has preferred this revision before this Court.

The case of the prosecution is that on 10.04.2005 at about 11.00 a.m., due to previous enmity, the accused attacked P.W.3 with a knife on his

neck and caused grievous injury. On the next day at 6.00 a.m., the accused himself took the victim (P.W.3) to the Thanjavur Medical College

Hospital and informed that the victim sustained injury due to fall in a drunken mood.

Learned Counsel appearing for the Petitioner submits that during trial though the Petitioner engaged a private counsel, as he could not pay fees

to the counsel, the counsel had withdrawn his appearance and the accused represented it before the trial Court. The Petitioner also gave an

application to the District Legal Aid Services Authority, Thanjavur for appointing a legal aid counsel. But, in the mean time on 04.10.2007., though

the Petitioner was not represented by any counsel, P. Ws.1 to 4 were examined by the prosecution and the learned trial Judge has also recorded

the evidence of those witnesses in the Chief examination and stated that there was no cross by the accused.

On 23.10.2007, Mr. R. Subbarayalu, being appointed as legal aid counsel to the Petitioner/accused, appeared on 24.10.2007 before the Court

and sought for time since he has to go through the papers and to get instructions from the accused regarding the case. But, on that day the trial

Court further examined P. Ws.5 to 11 and their Chief examination were recorded and it was noted as ""No cross"".

On 25.10.2007, learned legal aid counsel appeared for the Petitioner/accused filed an application before the trial Court u/s 311 of Code of

Criminal Procedure to recall P. Ws.1 to 11 to Cross-examine them since none of the witnesses have been cross-examined. Notice was also

ordered to the Additional Public Prosecutor after hearing the arguments on that application and on 29.10.2007, the said application was dismissed

and the accused was questioned u/s 313 of Code of Criminal Procedure and subsequently, judgment has been pronounced on 31.10.2007

convicting the accused.

Learned Counsel appearing for the Petitioner submits that even recording of chief examination of P. Ws.1 to 4 on 04.10.2007 is illegal since the

accused was not represented by any counsel. Being a Sessions case, it is the duty of the Sessions Court to arrange for the legal aid counsel to the

accused. After appointment of the legal aid counsel, when the legal aid counsel made a representation before the trial Court to recall the witnesses

to cross-examine, without giving opportunity to the accused, the trial Court had dismissed the application mercilessly.

Learned Counsel appearing for the Petitioner further vehemently submitted that though the trial Court acted mercilessly, the appellate Court has

also acted erroneously when this ground was raised before the appellate Court and the appellate Court has also ob-served that it was not

necessary to cross-examine the witnesses.

Learned Counsel appearing for the Petitioner submits that the accused may be given an opportunity to cross-examine the witnesses by

remanding the matter back to the trial Court.

Learned Government Advocate (Crl. Side) submits that during trial, the accused was not appearing before the trial Court regularly and

therefore, Non-bailable Warrant was issued against him and subsequently, he was remanded to judicial custody. The accused was produced from

the jail and only in his presence the witnesses were examined.

This Court considered the submissions made by both sides and perused the materials available on record.

The certified copy of the petition filed u/s 311 of Code of Criminal Procedure to recall P. Ws.1 to 11 and the order passed in the said petition

is produced before this Court. The said application has been filed by the legal aid counsel by name Subbarayalu on 25.10.2007. In the said

application, it is mentioned that the accused initially engaged a counsel as he could not pay the fees, the counsel withdrew his appearance. As the

Petitioner filed an application before the Thanjavur Legal Aid Services Authority, Thanjavur, he was appointed as a legal aid counsel on behalf of

the accused. The legal aid counsel learnt that in the mean time on 10.10.2007, P. Ws.1 to 4 were examined and on 24.10.2007, P. Ws.5 to 11

were examined, but none of the witnesses were cross-examined. Further, the prayer was made to recall P. Ws. 1 to 11 for the purpose of cross-

examination. Notice was given to the Additional Public Prosecutor.

On 29.10.2007, an order was passed and in that order, it was mentioned by the learned Judge that P. Ws.1 to 11 were examined in the

presence of the accused and the accused reported ""No cross"" for all the witnesses. When the case reached the stage a defiance, the accused came

forward with a 311 Code of Criminal Procedure application, sufficient opportunity has been given to the accused but not availed and therefore, this

petition is dismissed.

This Court is very much shocked to see such an order passed by the trial Court. From that order, it is clear that on the date of examination, P.

Ws.1 to 11 were examined in the presence of accused and no counsel was represented on behalf of the accused and the accused himself

represented that ""No cross"" for all the witnesses. Even if the accused represented that ""No cross"" for all the witnesses, subsequently, after the

appearance of the legal aid counsel, when the legal aid counsel has come forward with an application u/s 311 of Code of Criminal Procedure, the

trial Court ought to have allowed that application. But, the trial Court erroneously passed an order dismissing the petition observing that sufficient

opportunity has been given to the accused.

Section 304(1) of Code of Criminal Procedure, runs as follows:

(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 not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

On the date of examination of P. Ws. 1 to 4, it was known to the trial Court that the accused was not represented by any counsel and as such

it is the duty of the Sessions Court to arrange for a pleader to represent the accused. Instead of making such arrangements, the trial Court had

examined the witnesses. Further worse, even after filing an application u/s 311 of Code of Criminal Procedure to reject it. In the appeal preferred

by the Petitioner before the learned Additional District-cum-Sessions Judge (Special Court for EC Act Cases), Thanjavur, learned Counsel who

appeared on behalf the Petitioner/accused brought to the notice of the appellate Court that P. Ws. 1 to 11 have not been cross-examined and also

brought to the notice of the appellate Court that the application u/s 311 of Code of Criminal Procedure, filed on behalf of the accused was

rejected. Even after that, the appellate Court did not give any weight to that submissions and had simply observed that the occurrence took place

in the year 2005 and the evidence were recorded in the year 2007 and if the accused is allowed to cross-examine the witnesses, it would not be

proper justice. Again, this Court unable to digest such an observation made by the appellate Court.

Being a sessions case, it is the duty of the Sessions Court to see that at the time of recording the evidence, whether the accused is represented

by any counsel or not. Unless, the accused represents that he does not require any counsel if the accused is not represented by any counsel, then it

is the duty of the Court to appoint State-brief or any legal aid counsel. In this case, the trial Court failed in its duty.

In view of the above said facts, this Court is inclined to set aside the conviction and sentence imposed on the accused.

Accordingly, the Criminal Revision Case is allowed and the conviction and sentence imposed on the accused as per judgment passed in C.A.

No. 5 of 2009 on the file of the Additional District-cum-Sessions Judge (Special Court for EC Act Cases), Thanjavur dated 08.10.2009,

confirming the judgment made in S.C. No. 6 of 2006 on the file of the Assistant Additional Sessions Judge, Thanjavur dated 31.10.2007, is set

aside and the matter is remanded back to the trial Court. Consequently, connected miscellaneous petition is also closed.

The evidence of P. Ws. 1 to 11 recorded in chief examination shall remain.P. Ws.1 to 11 shall be recalled for the purpose of cross-

examination by the defence.

It is now understood that the accused is in custody and he is confined in Central Prison, Trichy. During trial, the accused had absconded and

Non-boilable Warrant was issued against him and subsequently, he was remanded to custody and on the date of judgment of the trial Court also

the accused was in custody and therefore, now the Petitioner shall not be released from the prison and he will continue to be in prison. It is open to

the Petitioner to file an application for bail pending trial and it is for the concerned Court to pass orders.