Vikram Nath, J.:— This criminal appeal under section 374(2) Criminal Procedure Code, 1973 (hereinafter referred to as the Cr.P.C) has been preferred by the four appellants Mohd. Azim, Mohd. Idrish, Smt. Azzo and Smt. Razia Begum, assailing the correctness of the judgment and order dated 5.3.2011 passed by the Additional Sessions Judge/Special Judge (Anti-Corruption), District Bareilly, in Sessions Trial No. 301 of 2001, State v. Mohd. Azim, whereby all the four appellants have been convicted under section 304-B IPC read with section 34 IPC and further in addition to it, the appellant nos. 3 & 4 have been convicted under section 302 IPC. The Trial Court further awarded the following sentence to each of the four appellants on hearing them on the question of sentence.
2. Appellant no. 1 Mohd. Azim has been sentenced to life imprisonment under section 304-B read with section 34 IPC. The appellant no. 2 Mohd. Idrish has been convicted to 10 years rigorous imprisonment under section 304-B read with section 34 IPC. Appellant No. 3 Smt. Azzo Bano @ Azayab Bano has been sentenced to 10 years rigorous imprisonment under section 304-B IPC and lastly Smt. Razia Beghum appellant no. 4 has been given life imprisonment under section 304-B IPC.
3. The appeal was heard by a Division Bench comprising Hon'ble Dharnidhar Jha and Hon'ble Naheed Ara Moonis, JJ and separate judgments were delivered by the Hon'ble Judges on 19.02.2013 Hon'ble Dharnidhar Jha, J, allowed the appeal, set aside the judgment of conviction and order of sentence awarded to the four appellants and directed the Trial Judge to hear the case from the stage of arguments of accused and may also hear the prosecution so as to refresh the facts of the case. Certain other directions were issued. The reasons for setting aside the judgment as contained in paragraph 15 of the judgment and other directions contained in paragraph 16 to 19 are reproduced below-
15. We have already pointed out that if the counsel of the appellant was not assisting the court as per section 314 Cr.P.C, the learned trial judge ought to have identified his duties under section 304 Cr.P.C by providing legal aid to the appellant or else by appointing amicus curiae to assist him by addressing oral arguments on behalf of the appellants. In our opinion, the learned trial judge by not providing legal assistance or by not appointing amicus-curiae, was definitely not performing his statutory duty and thereby was encroaching upon the statutory rights of an accused.
16. In the above view, the impugned judgement stands completely vitiated.
17. We are unable to say anything on the merit of the case. We have proceeded merely on findings which have been recorded earlier. The judgment passed by the trial judge vitiates on account of non compliance of the mandate of law and as such it appears to be a fit case to be set aside. Accordingly, we set aside the judgment of conviction and order of sentence awarded to the four appellants and direct the Trial Judge to hear the case from the stage of hearing arguments of the accused and if he so desires, he may hear the prosecution so as to freshening up the facts of case in his mind. In case the accused is not in a position to engage counsel of his choice at his own expense, the learned Trial Judge would request some of the counsel of fair standing at the Bar and practising on criminal side of the law to assist him on behalf of the accused and this Court expects that some counsel would come forward to assist the court whereby justice would be meted out to the accused. Accordingly, the appeal is allowed.
18. We expect that the learned Trial Judge should dispose of the trial within a maximum period of two months from the date, the lower court records along with the present order are received. Registry is directed to ensure remitting the lower court record along with the order immediately to the concerned court for initiation of proceeding with regard to the trial in the manner as directed by us.
19. We are not sure that the learned Judge who had delivered the judgment is still continuing at the same station. We direct that in case the same judge is available, he will not hear this case, because some of his observations appear sufficient enough to show that he was highly governed by his sentiments rather than by his knowledge of the facts of the case, because some of observation from the opening pages up to page 11 of the judgement could not carry well with us, as a Judge is not supposed to have unnecessarily referred to stanzas of poetry so as to guiding himself to arrive at a conclusion. Principles of law and appreciating of facts placed before a judge is relevant for deriving a result. It is not a poetry or certain stanzas of a poem which could lead the Court to judgment. If the learned Judge still continues at station, the learned District Judge would send this case to any other Judge for hearing as directed by us. The appellants, if so advised, shall be free to apply for bail before the court below.”
4. Hon'ble Naheed Ara Moonis, J. was apparently not persuaded by the findings recorded in the judgment of Hon'ble Dharnidhar Jha, J. to concur with the same as such she chose to give a separate judgment with different opinion. She was of the view that on mere technicalities the judgment of the Trial Court could not be set aside and that the Appellate Court had plenary powers for re-evaluating the judgment after due opportunity to the parties and as such directed that the appeal may be listed for hearing on merits. The reasons as recorded in the last part of the judgment of the Hon'ble Judge are reproduced below-
“In my considered opinion, the decisions relied upon by the learned counsel for the appellants has no applicability with the present set of facts. In the case of Mohd. Sukur (supra) Hon'ble Apex Court had directed to the High court to proceed with the hearing of the case after hearing the counsel appointed as amicus curiae. In the case in hand, the learned trial judge has recorded voluminous findings and reasons while delivering the judgment. In view of section 465(2) of the Code of Criminal Procedure if on any technical ground any party to the criminal proceedings is aggrieved, he must raise the objection at the earliest stage. A mere imperfection or irregularity during trial cannot overthrow a conviction unless such error or omission has occasioned a failure of justice. No such error or omission was pointed out at the initial stage at the time of admission of the appeal which could and should have been raised by the learned counsel if he was aware about unfair trial. Since the appellants are represented by the counsel before this court and the papers book are ready therefore, it may be listed for hearing on merits instead of sending back to the trial court for hearing/arguments on the ground of omission in the procedure after setting aside the judgment and order impugned for the simple reason that the appellate court has plenary powers for re-evaluating or re-appraising the evidence after hearing the counsel appearing on behalf of the accused appellants who were convicted by the trial court. The appeal being a statutory right, the judgment of the trial court would not attain finality during the pendency of the appeal. The trial is presumed to be continuing despite conviction and the conviction can not be set aside without indicating reasons to the material questions of fact and law.”
5. Based on difference of opinion recorded by the members of the Division Bench, Hon'ble the Chief Justice vide order dated 11.8.2014 has assigned the onerous task of being Referee and to record my own opinion.
6. It is not necessary for me to go into detail facts and evidence of the case, as such facts in brief giving rise to the trial are recorded.
7. Shakira Beghum (deceased), sister of the informant Jisan Khan was married to the appellant no. 1 Mohd. Azim on 15.03.1998, according to the Muslims rites and traditions. The husband and his other relatives were not satisfied with the dowry given in the marriage and had raised a demand for Scooter and Rs. 50,000/- cash and for the same the deceased was being tortured. The deceased had informed her parents about 8-10 days before her death with regard to the demand of dowry and in the event of its non fulfillment she would be eliminated. On 18.7.2000, the fateful day, at about 8.00 pm in the evening the husband Mohd. Azim, mother-in-law Smt. Azzo Bano @ Azayab Bano, brother-in-law Idrish and sister-in-law (wife of Idrish) with common intention sprinkled kerosene oil on her and set her ablaze. The deceased was taken to Bareilly Hospital. Information was given by neighbours to the informant whereupon he rushed to the hospital. The informant found her sister alone in the hospital and no one from the matrimonial home was present. The informant's sister (deceased) narrated the whole story. The FIR was lodged at Police Station Faridpur on 19.07.2000 at 7.45 pm which was registered as Case Crime No. 392 of 2000, under sections 498-A/304-B IPC read with section ¾ Dowry Probation Act. After due investigation charge-sheet was submitted and accused were put to trial.
8. The Trial Judge who decided the trial has recorded in the impugned judgment that for the first time the record of the case was placed before him on 13.01.2011 and the case was fixed for hearing. The Trial Judge further records that on 24.1.2011 he learnt that in a petition under section 482 Cr.P.C High Court had directed vide order dated 11.11.2009 to conclude and decide the trial within six months. The Trial Judge requested the High Court for enlargement of time by a further period of three months. The Trial Judge further proceeds to record that a transfer application was moved by the accused-appellants before the Sessions Judge and the adjournment application moved by the counsel for the defence was rejected as repeated adjournments were being sought. The defence was granted time to make submissions fixing 8.2.2011 and was also granted liberty to submit written brief before 8.2.2011 and the case was fixed for judgment on 18.02.20111 In the meantime an order dated 8.2.2011 was placed before the Trial Judge on 14.02.2014 received from the Sessions Judge providing that opportunity of hearing may be given to the defence. The order of the Sessions Judge further mentions that counsel for the defence had assured the Sessions Judge that if an opportunity is granted, arguments would be advanced before the Trial Judge on any date after 15.02.2015 Before the Trial Judge again an application was moved on 14.02.2011 requesting for some further date for arguments. The Trial Judge fixed 18.02.2011 and 19.02.2011 for arguments. Once again on 18.02.2011 an adjournment application was moved when the Trial Judge fixed 19.02.2011 for oral arguments as also for submission of the written brief. Again on 19.02.2011 an adjournment application was moved upon which the Trial Judge directed that the arguments may be advanced on 21.02.2011 at 10.30 am. The defence continued with their efforts to delay the hearing and again moved an adjournment application on 21.02.2011 The Trial Judge rejected the said application and fixed 3.3.2011 for delivery of judgment and at the same time granted one more opportunity to the defence to advance oral submissions and to submit written brief on 22.02.2011 Thereafter the counsel for the defence neither made oral submissions nor submitted written brief. The Trial Court proceeded to deliver the judgment on 3.3.2011 On 3.3.2011 the Trial Judge recorded conviction of the accused appellants and fixed 5.3.2011 for hearing on sentence. On 5.3.2011 accused appellant Mohd. Azim appeared before the Trial Judge alongwith Sri Venkateshwar Saxena, Advocate. Learned counsel Sri Saxena however stated before the Trial Judge that he has no instructions to make submission on the question of sentence. The Trial Judge after hearing the District Government Counsel (Criminal) proceeded to award sentence on 5.3.2011
9. In the earlier part of the judgment I have already recorded the opinions of the Hon'ble Members of the Division Bench and it is on account of their difference of opinions that the matter is before me.
10. I have heard Sri Sushil Shukla, leaned counsel for the appellants and Sri Rajiv Kumar Mishra, learned AGA appearing for the State and have perused the record of the Court below as also of this Court.
11. In my humble opinion the following question arise for consideration in view of the difference of opinion recorded by the Hon'ble Judges-
1. The extent of right of the accused to be heard through his counsel and for submission of written brief in view of section 314 Cr.P.C
2. Whether even where accused have appointed their counsel, the Trial Court is still obliged under law to appoint Amicus Curiae where counsel for the defence is not cooperating and advancing his arguments.
3. Whether any prejudice is caused to the accused on account of the failure of his counsel to argue on his behalf and submit written brief even though the Trial Court has considered and discussed the evidence available on record.
4. Whether the appeal being continuation of proceedings and being a statutory right of the accused, the Appellate Court by providing hearing to the counsel for the accused in appeal can ratify the defect which has occasioned before the Trial Judge where opportunity of oral hearing was denied.
12. The question for consideration is whether the accused has an absolute right to be given an opportunity of hearing by the Trial Court before the Trial Court may proceed to deliver the judgment, or the Trial Court after recording reasons to the effect that the accused is deliberately and mischievously not making submissions before the Court whether oral or written, and repeatedly continued to seek adjournments after adjournments on the pretext of the availability of the counsel and thus delay the disposal of the trial indefinitely. If this is permitted then the Trial Court would be helpless in the matter and has to succumb to the unending dilatory tactics of the accused.
13. I have already formulated four questions for consideration. Section 314 of the Cr.P.C which requires any party to a proceeding to lead oral arguments and submit memorandum of arguments is reproduced below-
314. Oral arguments and memorandum of arguments
(1) Any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record.
(2) A copy of every such memorandum shall be simultaneously furnished to the opposite party.
(3) No adjournment of the proceedings shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment
(4) The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate such arguments.
14. A reading of section 314(1) Cr.P.C indicates that as soon as may be, after the close of the evidence the party may address concise oral arguments and before conclusion of the oral arguments, if any, a memorandum may be submitted to the Court which may contain concise arguments under distinct head which may form part of the record. This meant that even where oral arguments are not advanced a memorandum may be submitted as required and it shall form part of the record.
15. The memorandum so filed is to be furnished to the opposite party simultaneously as per section 314(2) Cr.P.C
16. Under section 314(3) Cr.P.C it is provided that no adjournment would be granted for filing the written arguments (memorandum) unless the Court considers it necessary to grant adjournment after recording reasons for the same.
17. Under section 314(4) Cr.P.C it is provided that the Court may regulate such arguments if it is of the view that the oral arguments are not concise or relevant.
18. In the present case we find that the Trial Court granted repeated opportunities to the accused and his counsel to make the oral submissions and also to file the written submissions (memorandum), which was not availed of by the accused as repeated adjournments were sought on one ground or the other, on account of the counsel which clearly violated the very object of section 314 Cr.P.C The word ‘as soon as may be’ mentioned in section 314(1) Cr.P.C was clearly violated as no oral argument was advanced and repeated request for adjournment was made. The provisions of law are meant to subserve the ends of justice and not to abuse or misuse it. The present case is a glaring example where Trial Court repeatedly continued to allow adjournments and grant time to the accused to adduce oral arguments and submit written arguments (memorandum) but the defence failed to avail of several opportunities. The Court is not helpless and cannot be fooled around by the accused.
19. The evidence in the trial had concluded in the year 2009 after the statement of defence witness DW-7 concluded on 16.11.2009 It would be also worthwhile to mention here that the statement of the accused was lastly recorded on 4.6.2005 and thereafter the defence took four years to lead its evidence. Even after conclusion of the statement of DW-7 on 16.11.2009 the defence continued to seek repeated adjournments and ultimately by order dated 13.01.2010 the defence evidence was closed and the case was fixed for arguments. The Trial Judge continued to fix dates for hearing since January, 2010. In the meantime the defence filed an application raising objection that Exts. had not been signed by the Presiding Officer. The Trial Judge passed a detailed order on 5.6.2010 Thereafter the arguments of both the parties were heard and only on account of the fact that the parties had not filed case laws relied upon that the Trial Judge adjourned the matter vide order dated 28.06.2010 fixing 8.7.2010 for filing case laws, failing which the judgment would be delivered. Thereafter the defence moved an adjournment application and prayed for making further submissions. The matter some how got delayed. Thereafter the defence again moved an application under section 311 Cr.P.C (Paper No. 85 Ka) to recall PW-9 for further cross-examination. This application was rejected on 5.8.2010 Thereafter from the order sheet it is more than apparent that the defence continued to seek adjournments.
20. It would be worthwhile to reproduce the order-sheet w.e.f 13.01.2011 till 7.3.2011 to show the conduct of the defence which compelled the Trial Judge to proceed to decide the case:
21. I do not feel any hesitation in supporting the view taken by the Hon'ble Naheed Ara Moonis, J. on the point that defence had been adopting dilatory tactics and deliberately indulging in the delay of the trial despite the fact that in the year 2009 itself High Court had directed that the trial be concluded expeditiously, if possible, within six months.
22. I am, therefore, of the view that the right given to the accused under section 314 Cr.P.C is meant for affording due opportunity to the defence to lead oral arguments and to submit written submissions. Raising a plea that no such right was extended would be one thing and it may amount to infringement of the right guaranteed under under section 314 Cr.P.C On the other hand, where repeated opportunity is given to the defence to lead oral arguments and to file written submissions but the same is not availed of would clearly amount to violation of the right provided under section 314 Cr.P.C which talks of immediate and as soon as may be after close of the evidence the arguments may be advanced and written submissions filed. The section clearly provides that in case of adjournment being granted the Trial Court will have to record reasons at that stage. The mandate is clear that after close of the evidence the oral arguments and written submissions should be filed at the earliest without any delay. Thus, it can be safely concluded that the right of the accused under section 314 Cr.P.C is for providing opportunity to be availed of by the accused and not to misuse or abuse such right.
23. Now coming to the next question relating to duty of the Trial Court to appoint an Amicus Curiae in the matter invoking the provisions under section 304 Cr.P.C which reads as follows-
“304. Legal aid to accused at State expense in certain cases.
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules providing for-
(a) the mode of selecting pleaders for defence under subsection (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.
24. A bare reading of the above provision clearly indicates that the Court of Sessions may assign a pleader to defend an accused at the expense of the State where accused is not represented by a pleader and where it appears that the accused does not have sufficient means to engage a pleader. In the present case the accused was throughout represented by a pleader and that he had enough means not only to engage a Lawyer at District Court Bareilly but could also engage a Lawyer from Allahabad. The record reflects that applications to the aforesaid effect were made by the accused to adjourn the matter as counsel from Allahabad was not available. The order sheet reproduced above also records the same fact. Thus, I am of the view that section 304 Cr.P.C would have no application in the present case.
25. The third question which relates to prejudice being caused to the accused on account of the failure of his counsel to make oral submissions and file the written submissions (memorandum). A perusal of the judgment of the Trial Court indicates that it has extensively dealt with the evidence both oral and documentary placed on record by the parties. Prejudice if any can be pointed out in the appeal at the time of the arguments. Before the High Court the accused is throughout represented by a counsel who has been advancing the arguments at every stage. The view taken by Hon'ble Naheed Ara Moonis, J. that appeal being continuation of the trial and that the appeal is to be heard on the facts also in my opinion does not cause any prejudice to the appellant. At the stage of trial where his counsel failed to avail the opportunity, given repeatedly, of making oral submissions and filing written submissions (memorandum) can be adequately availed at the stage of appeal.
26. The last question framed is also sans merit in as much as there is no denial of opportunity of hearing but it is a case where accused and his counsel failed to avail repeated opportunities given by the Trial Judge. The accused will have ample opportunity to make submissions before this Court.
27. In the case of Mohd. Sukur Ali v. State Of Assam, reported in (2011) 4 SCC 729 Mr. Sinha, the subsequent counsel engaged by the appellant therein could not appear as his name was not printed in the cause list. The High Court had proceeded to decide the appeal on merits. It was in those circumstances that the Supreme Court set aside the judgment of the High Court and remanded the matter for a fresh decision. It has no application to the facts of the present case.
28. The second judgment relied upon by the learned counsel for the appellant is K.S Panduranga v. State of Karnataka, reported in (2013) 3 SCC 721. In this case the Supreme Court held that the judgment in the case of Mohd Sukur Ali (supra) on the above point was per incuriam as it was not in accordance with the pronouncement by larger Bench in Bani Singh v. State of U.P, (1996) 4 SCC 720.
29. In view of the above in my humble opinion, the view taken by Hon'ble Naheed Ara Moonis, J is the correct view.
30. The appeal may be listed for hearing.
Comments