If Advocate Of Accused In Custody Fails To Appear, Trial Court Bound To Appoint Legal Aid Advocate: Karnataka High Court

A single judge bench of Justice K.S.Mudagal said, "Article 39A of the Constitution of India casts duty on the state not to deny access to justice on the ground of economic or other disabilities. To achieve the object of Article 39A of the Constitution, the Legal Services Authority Act has been enacted. Under the said Act, Legal Services Authorities are constituted right from national level to taluk level. The district courts have the District Legal Services Authority and a panel of advocates for rendering legal aid to the unaffordable as contemplated under Section 304 of Cr.P.C."

The court set aside the conviction and sentence order dated January 27, 2018, passed against petitioner Somashekara @ Soma, charged under Sections 376, 506, 323 of IPC and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The court observed said,

"As per the prosecution papers, at the time of filing the charge sheet, the appellant was hardly aged 21 years and he was working as a mason. He was in judicial custody. Under such circumstances, when his advocate failed to represent him, in view of Section 304, Cr.P.C and the aforesaid other provisions, it was mandatory for the Trial Court to refer the matter to the District Legal Services Authority for providing free legal aid to the appellant."

Case Background:

As per the prosecution case the accused committed penetrative sexual assault on her neighbour, the 14-year-old victim. The brother of the victim filed a complaint with the police and the accused came to be arrested. During trial, the counsel for the appellant failed to conduct cross-examination of the material witnesses.

After the examination of other witnesses and hearing the parties, the Trial Court passed the impugned judgement and order convicting the appellant.

The Trial Court held that the evidence of material witnesses was not controverted and thereby, charges against the appellant stood proved. Further, it held that despite it granting opportunity, the accused and his counsel did not do the needful, and in view of Section 33(5) of the POCSO Act, it was bound to reject the prayer of the accused for granting further adjournment for cross-examination of the aforesaid witnesses.

In appeal, it was argued that the accused was in custody and on his counsel abandoning him, he was not given legal aid. Thereby the fundamental right of the appellant guaranteed under Articles 21, 22 and 39A of the Constitution of India was violated.

The Prosecution on the other hand claimed that in view of Section 33(5) of the POCSO Act and having regard to the object of the said Act, the Trial Court had no option but to reject the prayer of the accused and proceed with the matter."

Court findings:

After going through the record the bench noted the Trial Court says that it was mandated by Section 33(5) of POCSO Act to reject the prayer for granting time to the accused for cross-examination. On such ground, it had rejected the application filed by the accused under Section 311 of Cr.P.C. to recall PWs-1 to 3.

It said, "Article 13(2) of the Constitution bars the State from making any law which takes away or abridges the fundamental rights. Therefore such interpretation of Section 33(5) of the POCSO Act by the trial Court runs contrary to Article 13 of the Constitution."

It added, "The Courts have to strike harmony between two laws. Therefore when the counsel representing the appellant failed to appear, the appropriate action on the part of the Trial Court was to appoint a legal aid advocate to defend the appellant."

The court setting aside the conviction and sentence remanded the matter back to the Trial Court for fresh consideration.

It directed that Trial Court to assign an Advocate for the defence of the appellant as required under Section 304, Cr.P.C. Recall the material witnesses and after their cross-examination, if found necessary, the Trial Court shall examine the appellant under Section 313, Cr.P.C. and give him an opportunity to file a defence statement or lead defence evidence.

The court also directed the trial court to ensure that Section 33(5) of the POCSO Act is complied so far as PW-2 (victim girl) is concerned and conduct trial as expeditiously as possible.

Case Title: Somashekara @ Soma v. State Of Karnataka

Case No: Criminal Appeal No. 328/2018

Citation: 2022 Livelaw (Kar) 49

Date Of Order: 31st Day Of January 2022

Appearance: Amicus Curiae Suyog Herele.E; Advocate Shankar H.S, For Respondent

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