Shri.Sivasankaran v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT : THE HON'BLE JUSTICE TIRTHANKAR GHOSH AND THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS) CRA(DB)/5/2025 SHRI SIVASANKARAN ...

APPELLANT VS.

THE STATE ... STATE For the appellant : Mr. Alokesh Sarkar For the State : Mr. Sumit Kumar Karmakar Heard on : March 12, 2026 Judgment delivered on : March 13, 2026 TIRTHANKAR GHOSH, J.

1.

The present appeal has been preferred challenging the judgment and order of conviction and sentence dated 22nd April, 2022 passed by the Learned Special Judge (POCSO), North and Middle Andaman, Mayabunder in Special POCSO Case No. 29/2021, Special POCSO S.T. No. 07 of 2022 wherein the learned Special Court was pleased to hold the appellant guilty under section 6 of the POCSO Act, 2012 and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,00,000/- (Rupees Two Lakhs only), in default, to undergo rigorous

imprisonment for one year more. By the same order the learned Trial Court directed 90 % of the fine amount be paid as compensation to the victim.

2.

Mr. Alokesh Sarkar, learned advocate appearing on behalf of the appellant/accused argued on the issue relating to acquittal and on the other hand learned Public Prosecutor appearing for the State opposed such contention.

3.

Before entering into merits of the case and while going through the Trial Court records, we found that at the top of the impugned judgment none represented for the accused and the case was conducted by the accused himself.

4.

This compelled the Court to go through the records particularly as to why the accused had to conduct his own case. On inspection of the record, it was found that on 18th April, 2022 on the date of examination of the CSW Nos-1 and 2, the learned advocate Mr. Feroz Qazi filed an application for withdrawing himself from the case. The relevant portion of the order dated 18th April, 2022 passed by the learned Trial Court which is quoted below:- "Today is fixed for examination of CSW No. 1 & 2. Accused N Sivasankaran is produced from J/C.

Special Public Prosecutor is present along with two witnesses. Ld. Advocate Mr. Feroz Qazi submitted an application praying for withdrawal of vakalatnama on the ground stated therein. Due to unforeseen situation, Ld. Advocate is less interested to conduct the case on behalf of accused. In that situation, Ld. Advocate be permitted to withdraw the power.

On being asked accused stated in open court that he will conduct his case himself and he is less interested to appoint any Advocate. To that effect a petition has been filed.

In such view of the fact, the accused is permitted to conduct his own case by himself."

5.

The Trial Court records also reflect that on 18th April, 2022, the victim was examined, on 19th April, 2022, two witnesses being the doctor and one lady police constable was examined and on 20th April, 2022, seven witnesses were examined. On 22nd April, 2022, the arguments were heard in full and on the same day, the learned Trial Court held the accused/appellant guilty and thereafter proceeded to impose sentence.

6.

As the appellant was facing charges under section 6 of the POCSO Act which prescribes rigorous imprisonment for a term of not less than 20 years and which may extend for imprisonment of life along with fine, and in this case the learned Trial Court was pleased to impose sentence of life imprisonment along with the fine, we are of the opinion that reasonable opportunity was not granted to the accused/appellant. 7.

Having considered that the appellant was not conversant with the procedures of criminal law and it was left to the appellant to conduct his own trial, we are of the opinion that serious prejudice has been caused to the accused. In fact the cross-examination of the witnesses also reflects that the same were cryptic. It was incumbent upon the trial court to offer legal aid services to the accused/appellant and the same should have been recorded in the order dated 18th April, 2022.

8.

It would be worthwhile to refer to the judgment of the Hon'ble Apex Court in Ashok vs. State of Uttar Pradesh ( 2025) 2 SCC 381 wherein a duty has been cast not only to the Court but also to the Public Prosecutor conducting the trial. The relevant paragraphs of the judgment reads as follows:

"30. This issue was again dealt with by a Bench of three Judges in Anokhilal v. State of M.P. (2019) 20 SCC 196: (2020) 3 SCC (Cri) 803]. In this decision, this Court revisited the law on this aspect. In para 11, this Court relied upon the decision in Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40] . In para 20, this Court summarised the principles laid down from time to time. Para 20 reads thus: (Anokhilal case v. State of M.P.)

20. The following principles, therefore, emerge from the decisions referred to hereinabove:

20.1. Article 39-A inserted by the 42nd Amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A.

20.2. It has been well accepted that right to free legal services is an essential ingredient of "reasonable, fair and just" procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] (as quoted in the decision in Mohd. Hussain v. State (NCT of Delhi), (2012) 9 SCC 408 : (2012) 3 SCC (Cri) 1139] ) emphasises that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty.

20.3. Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira v. State of U.P., 1968 SCC OnLine SC 84 : (1969) 1 SCR 32 : AIR 1968 SC 1313 put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defence was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law.

20.4. The portion quoted in Bashira v. State of U.P., 1968 SCC OnLine SC 84 : (1969) 1 SCR 32 : AIR 1968 SC 1313 from the judgment of the Andhra Pradesh High Court authored [Alla Nageswara Rao, In re, 1954 SCC OnLine AP 115 : AIR 1957 AP 505] by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defence would not carry out the object underlying the rule.

It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare. 20.5. In Bashira v. State of U.P., 1968 SCC OnLine SC 84 : (1969) 1 SCR 32 : AIR 1968 SC 1313 as well as in Ambadas Laxman Shinde v. State of Maharashtra, (2018) 18 SCC 788 : (2019) 3 SCC (Cri) 452, making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance with "sufficient opportunity" to the counsel. (emphasis supplied)

31. In para 31, norms were laid down by this Court, which read thus : Anokhilal case.

"31. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated: 31.1. In all cases where there is a possibility of life sentence or death sentence, learned advocates who have put in minimum of 10 years' practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. 31.2. In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.

31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard-and-fast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.

31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160 : (2018) 3 SCC (Cri) 721.

(emphasis supplied) ...

...

...

38. Our conclusions and directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers are as follows: 38.1. It is the duty of the court to ensure that proper legal aid is provided to an accused;

38.2. When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully; 38.3. Even if the court is inclined to frame charges or record examinationin-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the Public Prosecutor to request the court not to proceed without offering legal aid to the accused;

38.4. It is the duty of the Public Prosecutor to assist the trial court in recording the statement of the accused under Section 313CrPC. If the court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the court while the examination of the accused is being recorded. He must assist the court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;

38.5. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions; 38.6. At all material stages, including the stage of framing the charge, recording the evidence, etc. it is the duty of the court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the trial court must ensure that a legal aid advocate is appointed to represent the accused;

38.7. As held in Anokhilal v. State of M.P., (2019) 20 SCC 196 : (2020) 3 SCC (Cri) 803 , in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as Amicus Curiae or as a legal aid advocate. Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of the law and has an experience of conducting trials on the criminal side.

It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials; 38.8. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed; 38.9. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice; 38.10.

38.11. The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21;

38.12. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent enough to conduct the trial efficiently, the rights of the accused will be violated." 9.

In view of the findings of the Hon'ble Supreme Court, we are of the opinion that the appellant should be granted fresh opportunity of crossexamination of all the witnesses, as such the judgment and order of conviction and sentence passed by the learned Trial Court dated 22nd April, 2022 in Special POCSO Case No. 29/2021, Special POCSO S.T. No. 07 of 2022 is hereby set aside.

10.

The learned Trial Court is directed to recall all the witnesses for providing opportunity to the accused/appellant to cross-examine all the witnesses after engaging a lawyer from the legal aid services authority. 11.

It is also reflected from the record that the DNA report was not placed although the DNA sample was collected. In case, the prosecution intends to rely upon such evidence, learned Court would provide such opportunity, in that case cross-examination be allowed on behalf of the accused.

12.

So far as the prayer for bail is concerned, we are not inclined to release the petitioner on bail and direct for continuation in custody for the time being as his initial conduct in course of investigation is not inspiring. In fact, the police authority had to exhaust harsher process of

law for tracing him out and the same was after initial charge sheet was filed before the Special Court.

13.

In view of the observations made above, CRA(DB)/5/2025 is disposed of with the aforesaid directions. The learned Trial Court would within a year from the date of communication of this order, complete the process of the cross-examination and pass a fresh verdict. 14.

Pending applications, if any, are consequently disposed of. 15.

Let the trial court records be transmitted forthwith. 16.

Department is directed to forward a copy of the judgment to the learned Trial Court and also the Superintendent of Correctional Home immediately.

17.

All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. 18.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities. ( Tirthankar Ghosh, J. ) I agree.

( Chaitali Chatterjee (Das), J. )