Somappa Hanamantappa vs State of Karnataka

Patil, J.—This appeal and Revision are directed against the judgment and order of conviction passed by the Principal Sessions Judge, Belgaum, in Sessions Case No. 67 of 1983 on his file, whereby he has found the accused - Somappa Hanamantappa Chowreddi guilty of the offence of murder for having caused the death of his wife - Devakka on 25-5-1983 at Rainapur Village Tank, where she had gone for washing the clothes, and convicted and sentenced to suffer imprisonment for life and has also directed to give set off the period of detention against the period of imprisonment.

It appears, it is not necessary to consider the merits of the case because, one of the main contentions advanced by Mr. H.F.M. Reddy, Learned Counsel appearing for the appellant/accused, is that the accused had engaged a Senior Counsel to defend him in the case, but the services of the Senior Counsel engaged were not available either because the Senior Counsel was sick and not in a position to appear and cross-examine the witnesses examined on behalf of the prosecution or because he was otherwise engaged in conducting other cases ; and one of his juniors had appeared and cross-examined the witnesses and there has been no effective cross-examination of the witnesses and, therefore, the accused was denied the opportunity of making his defence properly. He has also to-day produced an Affidavit sworn to by one Hemareddy Chowreddy said to be the brother of the accused, and Hemareddy has also stated in his Affidavit that the Senior Counsel S. B. Benchannavar was engaged to appear, conduct and defend the accused, but he did not conduct and defend the accused personally, perhaps, either he was not well or engaged in other cases. From the records, it is seen that Benchannavar had filed power along with his junior - L. K. Gurav and it is Gurav, who appears to have cross-examined the witnesses throughout and also argued the case. Mr. H.F.M. Reddy submitted that Mr. Gurav appears to be a raw-junior, in that he had enrolled himself as an Advocate in the year 1982, and he did not have the necessary experience of conducting the criminal cases, and the records also do not show if he was cross-examining the witnesses under the instructions of the Senior Counsel or the Senior Counsel was present when he was cross-examining the witnesses, and therefore, in order to meet the ends of justice, he submitted it is desirable to set aside the conviction and remit the matter back for trial afresh.

There is sufficient force in these contentions of Mr. H. F. M. Reddy that the accused had been denied the opportunity of making proper defence in the case for want of expert services of a Senior Counsel engaged by him One of the components of fair procedure in the administration of criminal justice is that the accused should have the opportunity of making his defence by a legal practitioner of his choice. That is his Constitutional right, under Article-22 of the Constitution, and in order to give effect to this Constitutional right, it has also now been embodied in the Directive Principles of State Policy, as provided under Article-39A of the Constitution, that the State shall secure equal justice and free legal aid by a suitable legislation or scheme or any other way to ensure that the opportunities or securing justice are not denied to any citizen by reason of economic or other disabilities. That right has also been statutorily accepted and incorporated in Section 303 of Cr. P.C. which provides that any person accused of an offence before a Criminal Court or against whom the proceedings are initiated under this Code may have his right to defend by a Pleader of his choice. That right, therefore, should not be interfered with.

Here in the case on hand, when the accused had thought of making his defence by engaging a Senior Counsel of his choice, but services of the Senior Counsel, it appears, were not available to him for one or other reason. The records do not show if the accused was told of his rights and he had consented to conduct of the case in the absence of the Senior Counsel by his junior. That is a serious infirmity in the trial and, therefore, on this short ground, we hold that the conviction of the accused for want of opportunity to make proper defence, is bad. We, therefore, allow the appeal and set aside the order of conviction and sentence and remit the matter back to the trial Sessions Judge with a direction to take the case to its original number and dispose of the same afresh in accordance with law and in the light of the observations made above giving an opportunity to the accused to make his defence through the Counsel of his choice.

Criminal Revision Petition does not survive and it is accordingly, disposed of.