Decided on August 26,1966

STATE Respondents


A.D.DESAI, B.J.DIVAN - (1.) This is an application filed by original accused in Ahmedabad City Sessions Court Case No. 72 of 1963. The applicant was charged under sec. 302 of the Indian Penal Code for intentionally causing death of one Shankar Budhi by giving him blows on his head with an iron pipe and fracturing his skull. The City Sessions Judge Ahmedabad after regular trial convicted the accused by his judgment and order of conviction dated October 14 1963 and sentenced him to suffer imprisonment for life for an offence punishable under sec. 302 of the Indian Penal Code. The accused was defended in the said Sessions Case by his Advocate Shri K. K. Shivhare.
(2.) Being aggrieved by the said judgment and order of conviction dated October 14 1963 passed by the City Sessions Judge the accused preferred an appeal to this Court being Criminal Appeal No. 1000 of 1963. The said appeal was filed through his advocate Shri K. K. Shivhare. The appeal was fixed for preliminary hearing under sec. 421 of the Criminal Procedure Code on October 28 1963 and the same was argued by Shri K. K. Shivhare. A Bench consisting of Divan and Mehta JJ. who heard the appeal dismissed the same summarily. A writ intimating that the appeal was dismissed was sent to the Sessions Court on October 28 1963 In the memo of appeal there was a prayer for bail and the Assistant Government Pleader appeared only to oppose the prayer of bail.
(3.) The accused has now preferred this application alleging that a few days back the applicant read in the papers that Shri K. K. Gupta who was appearing for accused in Sanyal Murder Case at Delhi was truly K. K. Shivhare who represented himself to be an advocate and appeared as such in Ahmedabad Courts and also for the applicant in Sessions Case as well as in the appeal and that he was not a lawyer at all. He further alleged that after it transpired that K. K. Gupta (Shivhare) was not a lawyer a fresh trial was ordered in Sanyal Murder Case on the ground that the person appearing for accused was not a qualified lawyer and that a trial in which the accused were defended by a person having no qualification was no trial at all. The applicant further alleged that if he had known that K. K. Shivhare was not an advocate he would not have engaged him as his advocate for the Sessions Case and also for the appeal. K. K. Shivhare not being an advocate was incompetent to defend the applicant. K. K. Shivhare practiced fraud on the Court and on the applicant appeared as an advocate for the applicant in the Sessions Case as well as in the appeal and thus deprived the applicant of a valuable right to have legal assistance in his trial and this according to the applicant had led to a serious procedural defect which resulted in failure of justice vitiating the whole trial. The applicant further alleged that there was no fair trial in the eye of law and his defence was materially prejudiced in view of the fact that Shivhare who conducted the matter was not an advocate possessing requisite qualification or skill to defend the applicant particularly as the offence alleged was a serious offence punishable under sec. 302 of the Indian Penal Code. Ordinarily when an accused is unable to engage a lawyer of his own he is always provided a lawyer by the State at the state expense. According to the applicant this resulted in miscarriage of justice and incurable defect in procedure vitiating the trial itself. On these allegations the applicant prayed that the order of summary dismissal passed by this Court in Criminal Appeal No. 1000 of 1963 be set aside and it may also be ordered that the judgment and order of conviction passed by Sessions Court in Sessions Case No. 72 of 1963 be also set aside and an order of retrial may be passed.;

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