Robin Majhi v. The State

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction [ Circuit Bench at Port Blair ] *** CRA/8/2022 IA No.CRAN/1/2022 Robin Majhi ... Appellant Vs.

The State ....Respondent Mr. Deep Chaim Kabir Mr. KMB Jayapal Mr. S.Ajith Prasad ... for the appellant Ms. A.S.Zinu ... for the State/Respondent September 29, 2022 [SR] Item No.9.

The appeal arises out of a judgment and order dated 2nd December, 2021, passed by the learned Special Judge under Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act") by which the appellant has been sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.2,00,000/- out of which 90 per cent amount is to be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C") in default will have to undergo further rigorous imprisonment of one year.

The appellant/convict has referred to the orders passed by the Trial Court from time to time. It appears from the order dated 15th April, 2021 that the accused was directed to be produced and the Investigation Officer (IO)

was directed to file his report on 29th April, 2021. This gives a clear indication, according to the appellant, that the appellant was in custody as on 15th April, 2021. It further appears from the order dated 8th June, 2021, referred to by the appellant that the appellant was directed to be produced on 16th June, 2021. On 16th June, 2021, the accused was produced in Court and a copy of the charge sheet and other papers under Section 173 of the Cr.P.C were supplied to the accused. The learned Advocate for the accused namely Shri Feroz Qazi filed a bail petition on behalf of the accused. The bail petition was rejected and the matter was fixed on 23rd June, 2021 for production of the accused and framing of charge.

On 23rd June, 2021, the accused was again produced. Thereafter, the accused was produced before the Court from time to time and the charges were framed. It appears from the order dated 9th September, 2021 that the learned counsel for the accused filed hazira but he also filed an application for withdrawing his vakalatnama. The said application was kept with the record. The accused was asked by the learned Judge whether he would crossexamine the witnesses to which it was recorded that he agreed to do so. This, according to the appellant, is a clear indication that the learned Advocate representing him was allowed to retire and the appellant being the accused was

asked to cross-examine the witnesses by himself. On the same day, the charge sheet witnesses being CSW-01, CSW02 and CSW 03 were examined and also cross-examined by the accused himself and the witnesses were discharged. The next order i.e. dated 10th June, 2021 also gives a clear indication that the accused/appellant was without any Advocate at the time of hearing.

The learned counsel on behalf of the appellant thereafter takes us to rest of the orders as also to the deposition of witnesses. He suggests that it is clear from the order sheets as also from the depositions that no legal assistance was made available to the appellant at the time of trial and the appellant admittedly was languishing in jail during the entire trial.

The learned Advocate for the appellant relies upon the provisions of Section 304 of the Cr.P.C read with Article 22 of the Constitution of India and submits that in a criminal trial the accused has to be provided with legal assistance either through legal aid or by an advocate of his choice. The learned trial Judge on the date when the learned Advocate for the appellant/accused made a prayer for withdrawing his vakalatnama, without affording legal assistance to the accused/appellant, proceeded with the examination and cross-examination. The appellant was all along in jail had no other option but to cross-examine all by

himself. The learned Advocate further submits that 17 witnesses were examined by the prosecution and in most of the cases it was recorded that cross-examination was declined. In respect of other witnesses, there is only one line denial in the shape of suggestion. This, according to the learned Advocate, clearly demonstrate that the accused/appellant was not given a proper chance to defend himself. He cites a judgment reported at AIR 2012 SC 750 (Mohd. Hussain @ Julfikar Ali vs. The State (Govt. of NCT) Delhi) and a Larger Bench judgment in respect of the same case reported at AIR 2013 SC 3860 and submits that the Hon'ble Supreme Court in that case, where the accused was not afforded legal assistance, remanded the matter back for retrial with certain observations after setting aside the judgment.

The learned Advocate for the appellant further refers to a judgment of this Court passed in C.R.A. 36 of 2011 (Malati Sardar vs. State of West Bengal) on 20th July, 2017 for the same proposition. Further by referring to paragraph 11 of the judgment, he submits that in that case there was a specific direction from the High Court for giving legal assistance to an accused when he is without a lawyer. On behalf of the prosecution, it is submitted that the guilt of the appellant has been well established and as such

the sentence imposed is justified and there should be no interference with the order under appeal.

After considering the submissions made by the parties and materials on record, we find that the appellant, who was in jail all along during the trial and was without any legal assistance from 9th September, 2021 when the examination and cross-examination commenced. It is also borne from the record that on that very date, the learned Advocate for the appellant/accused made a prayer for withdrawing his vakalatnama and the Court below instead of adjourning the matter to provide the legal assistance to the appellant, proceeded to hold the trial by examining and cross-examining three witnesses. The records also reveal that for the rest of the trial, the appellant, while in jail, was without the lawyer.

This, according to us, is in gross violation of the ratio laid down in Mohd. Hussain (supra) and Malati Sardar (supra). We, therefore, set aside the order under appeal and remand the matter back to the trial court for retrial after affording the appellant necessary legal assistance in terms of Section 304 of Cr.PC. The learned trial Judge shall issue fresh notices to the prosecution witnesses under Section 311 of the Cr.PC for the purpose of cross-examination. The trial Judge shall also afford an opportunity to the accused to produce the defence witnesses. The F.S.L report which

was not available before the judgement of the trial court was delivered shall also be considered in accordance with law.

After the evidence is over, the learned Trial Court shall take trial to its logical conclusion.

The appellant is in jail for a considerable period of time without any legal assistance. The appellant, therefore, will be at liberty to make an application for bail before the Court below which shall be duly considered in accordance with law.

The Jail authorities are directed to produce the appellant, who is presently a convict, from Port Blair to Mayabunder and he would be treated as an under trial prisoner.

The Registry is directed to communicate a copy of this order to the learned Court below as also to the jail authorities.

Let the lower court records be sent down. The appellant shall take necessary steps for the same. CRA/8/2022 and the connected application being CRAN/1/2022 are accordingly disposed of.

(Arindam Mukherjee, J.) (Kausik Chanda, J.)