Man Spends 18 Yrs In Jail: Orissa High Court Orders De-nove Trial

The Bench of Justice S. K. Mishra and Justic Savitri Ratho was hearing the appeal filed by one Habil Sindhu assailing his conviction under Section 302/201 of the IPC.

As per the judgment dated 30^th June 2005, the trial Judge had convicted the appellant for the aforesaid offence and sentenced him to undergo R.I. for life for the offence under Section 302 of the Penal Code.

Submissions made before the Court

The Amicus Curiae assailed the trial Court's judgment on various grounds pertaining to the appreciation of evidence, however, it was primarily highlighted by him that the appellant was not provided with effective free legal services by the State Defence Counsel (SDC).

Also, the counsel for the appellant argued that although the learned trial Judge engaged an SDC to defend him, but such counsel was engaged without assessing his ability to defend the accused, who was charged with the murder of three persons.

Moreover, it was also argued that the counsel was engaged on the date of trial when the private defence counsel appearing for the appellant did not appear and though on date of trial, no witnesses were examined on behalf of the prosecution, on the next two dates, the majority of the material witnesses were examined.

Court's observations

At the outset, the Court noted that the appellant was not given proper legal assistance as enshrined under Article 39-A of the Constitution in the true sense.

Firstly, the Court noted that the trial Judge had not recorded whether the SDC engaged by him was among the counsels shortlisted by the District Judges' office to be appointed as SDC and that there was no observation by the trial Judge that the SDC engaged by the court to defend the appellant was in fact competent in the assessment of the learned trial Judge to defend the appellant in a complex case of a triple murder.

Further, the Court observed that 9 Prosecution witnesses were examined in chief and then cross-examined by the defence on 17^th, 18^th and 19^th August of 2004 and that they were examined in the trial of an accused charged committing murder of three persons by a SDC, who was engaged just one day prior to the examination i.e. on 16^th August 2004.

To this, the Court noted,

"So, in our considered opinion, the appellant had no valid, proper and effective legal representation in the case. The learned trial Judge should have granted at least seven days' time to the learned counsel appearing for the appellant to prepare the case."

Therefore, the Court opined that it was a case where the accused had been denied a fair trial and it was violative of Article 39-A as well as Article 21 of the Constitution.

Consequently, keeping in view the entire facts of the case and taking a holistic view of the matter at hand, the Court was of opinion that the case should be remanded back to the learned trial Judge for de nove trial.

Thus, the Court remanded the case to the court of learned Sessions Judge, Mayurbhanj, Baripada with a direction to dispose of the case as early as possible preferably within a period of three months.

While disposing of the session trial, the Court directed the learned Sessions Judge to keep in mind the following observations: -

• In a case where the privately engaged counsel does not appear on the date of hearing or trial, then an effort should be made by the learned Sessions Judge to draw the attention of the counsels appearing to the various provisions of the Bar Council Rules and Advocates Act and they should be politely reminded of their duties towards the client, the court, and the society.
• While preparing list of a State Defence Counsel or Amicus Curiae, care must be taken by the learned District and Sessions Judge to include the names of those counsels, who have at least ten years of practice.
• In all such cases, the learned District Judge with inputs of Chief Judicial Magistrate as well as the Registrar of the Civil Court and inputs of the Public Prosecutor, President of the local Bar (s) should form an opinion about the ability of the counsel to provide meaningful assistance to the accused.
• Only when the District Judge is satisfied, either on his own information or information received by him, then only a counsel should be included in the penal of State Defence Counsel for the purpose of defending persons, who do not have enough means to engage their own private counsel.
• If a situation arises where the privately engaged counsel do not come forward or their assistance cannot be obtained without considerable delay and expenses, then the Presiding Judge of the court, in seisin of the case, may appoint a State Defence Counsel or Amicus Curiae.
• While appointing a counsel to defend an accused, the Presiding Judge of that Court, in seisin of the trial, should be satisfied with his ability to defend the accused.
• In this connection, the learned trial Judge may look into or take into consideration the list prepared by the District Court office. But, it is not binding upon him.
• If he finds that as per his own judgment while deciding the case that the counsel mentioned in the Penal do not have the ability to defend and give meaningful assistance to the accused, the learned trial Judge may appoint a counsel of his choice, dehors the list that has been prepared.
• In such cases of appointment beyond/outside the State Defence Counsel list prepared by the District Court, the payment of the dues (which in our opinion is not sufficient) should not be withheld by the Registrar or such other officer in charge of the finances and accounts of the District Court.
• Such appointment from outside the list of the State Defence Counsel prepared by the District Office shall not be considered as a financial irregularity.
• We must hasten to add that the learned trial Judge should record a finding that the counsel named in the list, in his opinion, may not be able to render meaningful assistance to the accused. It shall be proper on the part of the learned Judge to record the reasons for his opinion.
• It is further observed that in order to expedite sessions trial, the learned trial Judge should not procrastinate the trial as is seen in this case.

Case title - Habil Sindhu v. State of Odisha [Jail Criminal Appeal No. 132 of 2005]

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