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Judgment
Narayan Shukla, J.—Heard Mr. Dileep Kumar and Mr. Ashok Pandey, learned Counsel for the Petitioners and Mr. I.B. Singh, learned Special Public Prosecutor.
The Petitioners have challenged the orders impugned passed by the Special Judge (Ayodhya Prakaran)/Additional Sessions Judge, Lucknow, whereby the learned Presiding Officer closed the arguments of their counsel and reserved the case for judgment.
Mr. Dileep Kumar, learned Counsel for the Petitioners submitted that on 6th April, 2011 he attended one oldest case before the High Court of Judicature at Uttarakhand, which was listed for hearing and since due to illness he was not able to attend the proceeding of the court at Lucknow on the next date i.e. 7th April, 2011, one application on his behalf was submitted to fix another date for his argument on 11th April, 2011, but the court rejected it and listed the case on the next date i.e. 8th April, 2011, on which date, he concluded the proceeding and reserved the judgment.
It is the case of the Petitioner that though the case was postponed for hearing of argument of learned Counsel for co-accused but this opportunity was denied to the Petitioners. It is stated that Mr. Dileep Kumar, learned Advocate argued the matter at length at the stage of discharge and the Petitioners are interested to place the arguments on their behalf only through Mr. Dileep Kumar, who is basically practicing at Allahabad High Court as he understands that Mr. Dileep Kumar is well aware with the facts of the case as well as legal position. It is also stated that co-accused has consented for him to raise legal arguments on their behalf also. On 8th April, 2011 when the date for argument of amicus curiae; namely; Chandra Mauleshwar Tripathi appointed by the court for the Petitioner; namely; Santosh Tiwari was fixed, his mother received massive heart attack at his home town Etawa on 7/8th April, 2011 night, on account of which he proceeded for his home in the early morning of 8th April, 2011 by Gomti Express Train, therefore, on 8th April, 2011 again an application was moved to fix the date on 11th April, 2011 for defence argument on behalf of the Petitioners, but the court observed that it is delaying tactics of the Petitioners, therefore, he did not feel it appropriate to grant any further time for argument and closed the same. It is further stated that it is purely a case of violation of principles of natural justice.
In support of his contention, learned Counsel for the Petitioner cited decision of Hon''ble Supreme Court rendered in the case of Md. Sukur Ali v. State of Assam JT 2011 (2) SC 527. Relevant para 4 is extracted below:
That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused?
The Hon''ble Supreme Court answered the question in the following manner:
para 7-" We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel''s negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ''heart and sou'' of the fundamental rights.
Para-8-In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama 287 US 45 (1932), in which it was observed:
What, then, does a hearing include? Historically and in practice, in our own county at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise in admissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense
Para17- In Gideon v. Wainwright 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:
Lawyers in criminal courts are necessities, not luxuries
Para 22-We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.
Para 23-If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae.
He also raised a question on the place of proceeding as on 11th April, 2011 the case of the court proceeding to hear the matter at ICC M.R.T. Building situate at Indira Nagar, Lucknow which is not notified place for hearing of the case on the ground that the provisions of Section 9(6) of Code of Criminal Procedure speaks that the Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify. But, if, in any particular case the court of session is of the opinion that it will tend to general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
According to him, in the present case no such consent was obtained by any of the accused, therefore, the proceeding took place at the place different to notified place vitiates the whole proceedings.
Mr. I.B. Singh, learned Special Public prosecutor appears on behalf of Respondent and filed short counter affidavit on his behalf. He submitted that argument u/s 234 Code of Criminal Procedure started on 10th March, 2011. The prosecution concluded its argument on the same date. Since 11th March, 2011 mostly the argument of the accused on each and every date continued, but till 11th April, 2011 they have not been able to conclude it; whereas Section 314 of the Code speaks that any party to a proceeding, after the close of his evidence, has to address concise oral arguments and if the court is of the opinion that oral arguments are not concise, it may regulate such arguments. Accordingly, it is submitted by him that most of the arguments was concluded by Mr. Chandra Mauleshwar Tripathi, as Amicus curiae, who appears on behalf of the Petitioners at each and every stage. In default of Mr. Dileep Kumar, learned Advocate to advance his argument on the date fixed Mr. Chandra Mauleshwar Tripathi was appointed as amicus curiae but he failed to avail the opportunity, therefore, there was no other option before the court below except to close the proceeding of the case.
So far as the place of hearing is concerned, he submitted that though the date for hearing of the case was fixed with the consent of learned Counsel for the parties, but since he did not turn up for argument, no hearing took place and after turning up at regular place of hearing, the learned Presiding Officer recorded this proceeding also.
Upon perusal of the record, I find that due to non appearance of learned Counsel for the Petitioners, Mr. Dileep Kumar his argument was closed on 7th April, 2011, but learned Presiding Officer neither appointed amicus curiae to present his case nor permitted him to engage another counsel, whereas on the same day, he appointed Mr. Chandra Mauleshwar Tripathi as amicus curiae on behalf of accused Ram Babu and Santosh Tiwari, but due to massive heart attack of his mother he also could not appear as he turned back to his home to look-after her, therefore, their case remain unrepresented.
The learned court below has observed that since accused has adopted delaying tactics by seeking adjournment, there is no reason to provide further opportunity.
In order to make such observation, he also relied upon a letter of Jail Superintendent, Barabanki dated 7.4.2011 and reported that Mr. Shekhar Tewari (accused) on the date fixed before the court below any how tries to delay to go there. However, it is not the case of Respondents that Jail Superintendent has submitted such report earlier; whereas the proceeding of the case took place at several dates, therefore, I am of the view that letter submitted by jail superintendent has no force to impress the mind of the judge to close the argument in this manner. Thus it is apparent that proceeding adopted by the court below is clear violation of directives given by the Hon''ble Supreme Court in the case of Md. Sukur Ali (Supra), that establishes the abuse of process of court. So far as the hearing of the case which took place at different place as notified is concerned, I am of the view that since no substantial hearing took place on that place, it is ignorable.
Under these circumstances, I hereby quash the orders impugned dated 7.4.201, 8.4.2011, 6.4.2011, 2.4.2011, 6.4.2011 and 8.4.2011, respectively passed by the Special Judge (Ayodhya Prakaran) /Additional Sessions Judge, Lucknow closing the arguments of the Petitioners and issue direction to the court below to provide at least three days time to the learned Counsels for the Petitioners to place their argument on their behalf, if the arguments are not concluded earlier, the Petitioners are also permitted to file written argument within these three days. It is further provided that the Petitioner shall avail this opportunity without seeking any adjournment. In default, he shall not be given any further opportunity for argument. Accordingly the learned court below is directed to complete the proceeding of the case.
With the aforesaid observations, the petitions are allowed.