Chinnappa Reddy, J.:— In this case we are presented with a difficult problem and faced with a strange situation quite unprecedented, arising out of an unusual attitude adopted by the accused, who quite unmindful of the serious charge of murder made against them, refused to participate in the proceedings before the lower Court and persist in their refusal in this Court also. In the committal Court as well as in the Court of Session, when examined by the presiding magistrate and the judge respectively, they plainly and bluntly stated that they had no faith in the law Courts of the land, established according to them to protect the interests of the landlords, capitalists and the like. They professed to be ‘Naxalbarites.’ As they had not engaged any Counsel to defend them and as they had refused to answer the question whether they were possessed of sufficient means to engage a Counsel, the learned Sessions Judge thought it desirable to appoint a Counsel at the cost of the State to defend them. He requested a senior practitioner of the Court to defend them but the accused would have none of it and told the Sessions Judge that they did not want the services of a lawyer. The case therefore proceeded without the accused being defended by a lawyer. The prosecution examined twenty witnesses. At the end of the examination of each witness, the accused were asked by the Sessions Judge whether they wished to cross-examine the witness. They declined to cross-examine any witness. Instead they shouted slogans. When examined by the Sessions Judge at the conclusion of the evidence for the prosecution, they reaffirmed their lack of faith in Court and the present social system. At the close of the trial the learned Sessions Judge convicted the three accused under Section 302 read with Sec. 34 and sentenced A-1 and A-2 to death and A-3 to imprisonment for life. While A-3 has preferred an appeal through Counsel, A-1 and A-2, it is reported by the Jail Superintendent, have refused to prefer an appeal. Their case also is however before us in the reference made by the learned Sessions Judge under Sec. 374 Cr. P.C for confirmation of the sentences of death. They have refused to be represented by any Counsel at the hearing of the reference. Having regard to the importance of the matter we requested three senior practitioners of this Court. Sri R. Ramalinga Reddy. Ex-Public Prosecutor of the State. Sri P.A Chowdary and Sri B.P Jeevan Reddy to assist us on the legal and constitutional questions involved. We are grateful to them for their assistance.
2. We may at once state that the learned Sessions Judge who tried the case adopted a negative and a passive attitude at the trial. It was as if he was spectator and not a participant in the trial. In a case where the charge is of a capital nature and where the accused are undefended, be it by choice, one would expect the presiding Judge to evince an active interest and participate in the trial by putting questions to witnesses in order to ascertain the truth. Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Sec. 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact, relevant or irrelevant. S. 172(2) Criminal P.C enables the Court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial. In the present case there were certainly several matters which required clarification and elucidation. To give but one illustration P.W 1 who gave the First Information Report then gave the description of the assailants in the following words:—
“…………three strange persons came out of them two are of medium complexion and one of fair complexion. They have cropped heads and they were wearing white shirts and dhotis”.
3. But in evidence he said:
“One of them is short with brown hair and fair in complexion. One of them was having tattoo marks and letters on his left hand and his nose on the right side had been pierced. The third person had (Gunthakandlu) Gunta Kandlu. He had slight ‘Gooni’. I can identify them. Those three persons are in the dock, and they are the accused 1 to 3 in the dock.
The person with ‘Gunthakandlu’ is A-1. The short person with fair complexion is A-2. The person having tattoo letters is A-3.”
4. How it came about that P.W 1 did not mention these more striking descriptive particulars in the First Information Report though he was able to mention those particulars five months later in the Sessions Court was a matter which required clarification, especially as the prosecution rested mainly on identification evidence. Any defence Counsel would have seized upon it in cross-examination. In the absence of defence Counsel, it was the duty of the Court to have sought clarification from the witness. That the Sessions Judge failed to do. In a case which required watchfulness and alacrity on the part of the presiding judge, there was but a mechanical recording of evidence. The question is what should now be done in this distressing situation.
5. All the learned counsel urged that the conviction should be quashed and a retrial should be ordered. Sri Ramalinga Reddy and Sri Jeevan Reddy, amicus curiae and Sri Bhujanga Rao who appeared for A-3 urged that the very passivity of the Judge, in the special circumstances of the case, frustrated the object of the trial and so, the conviction should be quashed. Sri P.A Chowdary amicus curiae, urged that there was a violation of Article 21 of the Constitution. He urged that the peculiar circumstances of the case were such that it was impossible to effectively protect the accused's right under Article 21 of the Constitution except by the appointment of a Counsel by Court, notwithstanding the refusal of the accused to have such counsel. The refusal of the accused to have Counsel was immaterial since a Fundamental Right could not be waived. It cannot possibly be disputed that an accused will be greatly aided in his defence by a competent counsel. As pointed out in Powell v. Alabama (1932) 287 U.S 45.
“Even the intelligent and educated lay-man has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
6. It was pointed out in another case by Douglas, J.
“A layman is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of over-zealous prosecutors, of the law's complexity or of his own ignorance or bewilderment.”
7. While it is thus clear that a counsel can contribute to the effective defence of an accused person does it necessarily follow that the assistance of a counsel is part of the Fundamental Right guaranteed by Art. 21 of the Constitution?
8. Article 21 of the Constitution is in the following terms:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
9. It was decided in the case of A.K Gopalan v. State Of Madras., 1950 S.C.R 88 : (AIR 1950 SC 27) that the procedure established by law meant procedure prescribed by the law of the State i.e, enacted law. It did not include the rules of natural justice. Patanjali Sastri J., while he agreed that the procedure established by law did not include the rules of natural justice was inclined to take the view that ‘procedure established by law’ did not mean procedure prescribed by Parliament or the Legislature of the State but meant “the ordinary and well established Criminal Procedure, that is to say those settled usages in normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of Criminal Procedure in the Country.” The distinction made by Patanjali Sastri J., is not of much importance in the present case since we are concerned here only with the procedure prescribed by the Code of Criminal Procedure and not that prescribed by any other statute. The Code of Criminal Procedure does not prescribe that it shall be the duty of the Court to appoint a counsel to defend the accused in a case where the accused is not defended by a counsel. Section 340 Cr. P.C provides that any person accused of an offence before a Criminal Court or against whom proceedings are instituted under the Code in any such Court, may of right be defended by a pleader. Much as we may be tempted to give a wide interpretation to Sec. 340, Cr. P.C in the light of Art. 21 of the Constitution, we cannot do so in view of the decision of the Supreme Court of India in Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217 and Tara Singh v. State, AIR 1951 SC 441.
10. In the latter case Bose J., said,
“I need hardly say that the right conferred by sec. 340(1) does not extend to a right in an accused person to be provided with a lawyer by the State or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity.”
11. In the first case Fazl Ali J., said,
“This provision (S. 340. Cr. P.C) must undoubtedly be construed liberally in favour of the accused and must be read along, with the rules made by the High Courts and the circular orders issued by them enjoining that where in capital cases the accused has no means to defend himself, a counsel should be provided to defend him. The proper view seems to us to be: (1) that it cannot be laid down as a rule of law that in every capital case where the accused is unrepresented, the trial should be held to be vitiated, and (2) that a Court of appeal or revision is not powerless to interfere if it is found that the accused was so handicapped for want of legal aid that the proceedings against him may be said to amount to negation of a fair trial.”
12. It is clear from these two decisions that Sec. 340 Cri. P.C cannot be interpreted as casting an obligation on the Court to appoint a counsel to defend an undefended accused. The Andhra Pradesh Criminal Rules of Practice provide for the appointment of a counsel by a Court of Session in cases where the charge is of a capital nature and the accused is not possessed of sufficient means to engage a counsel. Even in such cases the Court of Sessions cannot impose a counsel appointed by it on an Unwilling accused. After all the accused has the freedom to say whether he wishes to be defended by counsel or not. An accused who obdurately refuses to be defended by counsel may thereby injure himself but such injury cannot be said to be the result of any non-observance of the procedure established by law. A somewhat similar situation arose in Reg v. Yscuado (1854) 6 Cox CC 386. A person was indicated for wilful murder. He would give no answer to any question put to him though he was neither deaf nor dumb. It was found that he was ‘mute of malice’ When he was asked whether he wishes to have the services of a counsel he did not reply. Erie J., then said:
“I do not think that I have any authority to assign counsel to a prisoner without his consent. I should be very glad if I could do so but by allowing counsel to appear without any communication with the prisoner, and without his sanction. I might be authorising a defence which the prisoner himself would never have made, and yet for which he must be responsible.”
13. When it was suggested that the prisoner's silence might in the circumstances be taken to mean assent Erie J., said:
“He is not bound to give any assent to such a proposition, and I do not see how I can infer an assent from his silence. In treason, by a special act of Parliament, the court may assign counsel to a prisoner but then it can only be done at his own request.
The trial must proceed, and care being taken that the prisoner is made acquainted with all that transpires, he must pursue his own course.”
14. It is true, as argued by Chowdary that the right to cross-examine prosecution witnesses and the right to state his case and comment on the prosecution evidence are part of the procedure established by law. If these rights were to have any substance and if they were to be effective. It was argued the appointment of a counsel to defend that accused was essential. We are prepared to go so far as to say that in every capital case and in every case of a complicated nature it is the duty of the Court to assign a counsel to defend an undefended accused. In other cases also if the accused appears to be incapable of intelligently following the case, it is the duty of the Court to assign a counsel to defend the accused. If in such cases no counsel is assigned it can perhaps be urged with force that there is a violation of the Constitutional right, not to be deprived of life or liberty except according to procedure established by law. But where the accused refuses to have a counsel assigned to him it cannot be said that there is any such violation. The Constitutional right may extend in appropriate cases to being asked whether the accused would like to have a counsel assigned to him and to the assigning of a counsel if he desires but it cannot extend to have a counsel imposed on an unwilling accused. As pointed out by us earlier no Court can appoint a counsel to represent an accused if the accused does not want a counsel to represent him. That is clear. The Court may perhaps appoint a counsel to act as amicus curiae but such a counsel does] not represent the accused and cannot cross-examine witnesses since cross-examination must be by the adverse party. The only way in which the Court may protect the accused in such a situation is to put necessary questions itself to the prosecution witnesses on all matters requiring clarification. We have already pointed out that the learned Sessions Judge failed to do this. In the circumstances of the case we do not think that we will be justified in quashing the conviction and ordering a retrial. We think that the interests of justice will be adequately served if in exercise of our powers under section 375 of the Code of Criminal Procedure, we recall and examine the material witnesses ourselves by putting necessary questions. On such an examination the accused will naturally have a right to cross-examine the witnesses if they so choose and the prosecution will have the right to re-examine the witnesses. Summons will therefore be issued forthwith to PWs. 1 to 3, 5, 6, 13, 14, 17 and 20 to appear in this Court on 22-2-1971. The accused will be produced in this court on that day.
15. Ordered accordingly.