The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent, the court said.
While ordering de novo trial in a murder case, the Allahabad High Court has observed that the trial court has a duty to ensure the availability of a diligent and effective defence counsel for the accused, even when there is a counsel representing him on record, but in fact is only a sham.
In this case, the opportunity of the accused to cross-examine for the witness was closed by the trial judge observing that the accused did not avail of it despite adequate occasions given and there were two counsel on record for the accused. All the four witnesses, in this case, were not cross-examined and the court proceeded to convict the accused and sentence him to life imprisonment.
While considering the jail appeal preferred by the accused, a bench of Justice Vijay Lakshmi and Justice JJ Munir observed that it is clear in this case that the accused was deserted by his counsel on record and it is a folly on the part of trial judge not to have extended the facility of a counsel to effectively defend him at state expense.
The bench said: “The learned Trial Judge was aware that the accused had such a right in case of his counsel deserting him. He knew the consequences of the prosecution witnesses going unchallenged, and, that too in an offence involving a capital charge, that would either result in a sentence of death or imprisonment. However, instead of informing the accused that he was entitled to be defended at the expense of the State exchequer, the learned Trial Judge appears to have gone by the letter of Section 304(1) Cr.P.C., which says that the facility to be defended at State expense in a court of sessions is for the accused, who is not represented by pleader. Since the accused in this was, on record, represented by pleader/ counsel, who had appeared on 13.04.2011, but thereafter deserted the appellant altogether when the entire trial went through, proved a sham by refusing to cross-examine any of the witnesses certainly attracted the provisions of Section 304(1) Cr.P.C. The Trial Judge under such a situation was duty bound to inform the appellant that he could be provided a counsel to defend him at State expense, if he did not have means to engage another counsel of his choice.”
The court also said it was in the consistent cognizance of the trial judge that the accused was going undefended and whoever was the defence counsel on record had forsaken their basic duties and not that they were just performing poorly.
“In that kind of a situation, we are of opinion that it was the duty of the Trial Judge to enquire of the accused if he had means to engage another counsel and if he did not have those means, to provide him legal assistance at State expense of a counsel, who would faithfully, diligently and to the best of his abilities discharge his duties in defence of the accused/ appellant at the trial,” Justice Munir added.
The court also rejected the state contention justifying the trial court order, observing thus: “The feeble submission put forward on behalf of the State that the appellant stayed a mute spectator to the deliberate absence of two counsel, whose appearance was on record, cannot claim any right to appointment of counsel by the Court, who would diligently and dutifully defend him, is completely misplaced only to be swept away under the deluge consistent authority that enjoins the court, to come forward and ensure that an accused, particularly, like the appellant, who does not appear to be a very educated man or one possessed of good financial resources and provide him with effective legal assistance to defend him at the trial vigorously and dutifully.”