Accused Can't Claim De Novo Trial As A Matter Of Right Unless Claim Of Counsel's Ineffectiveness Is Proved To Satisfaction Of Court: Delhi HC

The Delhi High Court has observed that an accused cannot, as a matter of right claim de novo trial, except where he is able to show and prove his claim of ineffectiveness of counsel's assistance and his representation falling below an objective standard of reasonableness, to the satisfaction of the court.

Justice Rajnish Bhatnagar added that such a relief is to be granted sparingly, in exceptional circumstances, where it appears prima facie that the apprehension of the defendant is sincere and bonafide and the defence counsel has utterly failed to build any defence owing to his incompetence.

The facts of the case are that an FIR was registered against the petitioner on 02.09.2016 under sec. 354 and 354A of the Indian Penal Code, 1860 and sec. 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 alleging that on 31.08.2016, when the prosecutrix was returning from tuition, an unknown male person touched the breasts of the prosecutrix and attempted to flee.

It was alleged that however, the prosecutrix caught hold of the said unknown person and raised alarm, as a result of which, a huge crowd gathered and, in the meanwhile, the prosecutrix phoned her father who, thereafter, arrived at the place of the incident and called the Police and the petitioner was apprehended on the same date of the incident. It was further alleged that the statements of the prosecutrix and her father were recorded on 02.09.2016.

The instant plea filed by the accused sought directions to remand the matter back to the trial court and order a denovo trial whereby the petitioner-accused is able to advance an adequate defence.

It was submitted by the counsel for the petitioner that by admitting by and large all the evidences of the prosecution without the knowledge of the petitioner and refusing to bring out the defence evidence, the defence counsel of the petitioner, virtually conceded to the case of the prosecution.

It was further argued that the defence did not build any defence and failed to demolish the case of the prosecution, therefore, the petitioner did not get the fair opportunity to establish his defence.

On the other hand, it was submitted by the State that an application under sec. 294 Cr.P.C. was moved and all the documents were duly admitted during the course of the admission and denial.

It was also submitted that the statement under sec. 313 was recorded and even a certificate has been issued by the ASJ, certifying that the petitioner had been examined in the presence and hearing and the record of the examination contained full and true account of the statement made by the petitioner accused before the Trial Court.

"As per the recording of Statement under Section 313 Cr.P.C. is concerned, it is between the court and the accused. A perusal of the statements shows that all the incriminating evidence has been put by the Court to the accused and the answers given have been duly recorded by the learned ASJ, who has at the end of the statement under Section 313 Cr.P.C. issued the certificate in regard to the correctness of the statement made by the accused and having explained to the contents of the evidence put to him," the Court observed.

The Court further was of the view that it cannot be said that the petitioner was not aware as to what was being put to him in the statement under sec. 313 Cr.P.C. by the Trial Court or that he was not afforded any opportunity to lead defence evidence.

Furthermore, the Court observed that a perusal of the record demonstrated that the case was not the one where the petitioner can be said to have been refused the right to lead any defence evidence or that the petitioner was not aware as to what was being put to him in the statement under sec. 313 Cr.P.C. by the Trial Court as the petitioner not only gave mechanical answers but in fact, gave clarifications and explanations in certain answers.

"It is trite law that the right to defence includes right to effective and meaningful defence at the trial, however, an accused person cannot as a matter of right claim de novo trial and allege that he did not get the fair opportunity to establish his defence except when the defendant is able to show and prove his claim of ineffectiveness of counsel's assistance and his representation falling below an objective standard of reasonableness, to the satisfaction of court as the said relief is to be granted sparingly, in exceptional circumstances, where it appears prima facie that the apprehension of the defendant is sincere and bonafide and the defence counsel has utterly failed to build any defence owing to his incompetence," the Court observed.

With the aforesaid observations, the plea was dismissed.

Case Title: BABLU TIWARI @ JATA SHANKAR TIWARI v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 407

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