V. S. DAVE, J. - (1.) THIS is an application under Section 482 Cr. P. C. directed against the order passed by learned Sessions Judge, Jhala. war, on September, 6,1988; whereby he rejected an application for re-calling the prose-cution witnesses for cross examination.
(2.) THE facts leading to this application are that the accused-petitioners are facing trial for offence under Section 302 IPC and other provisions of the Indian Penal Code. THE case was fixed for prosecution evidence on March 22 1988, On this day seven prosecution witnesses were present in the court including three eye witnesses, namely, P. W. 1 Bhanwar Singh. PW2, Samuddar Singh and PW 3 Mohan Lal. On this day there was general strike of lawyers in the entire State of Rajasthan and as such no counsel appeared in the court. Since witnesses were in attendance, the learned Sessions Judge recorded the statements of the witnesses and asked the accused if they wanted to cross examine the prosecution witnesses. THE trial proceeded and on August 29, 1988 learned counsel for the accused-petitioners moved an application for re-calling three eye-witnesses for cross examination. This application was rejected by the learned Sessions Judge on September, 6,1988 by impugned order. THE learned Sessions Judge while rejecting the application observed that evidence had been closed in March, 1988 and the application has been moved on August 29, 1988; hence it appears that the same has not been filed in good faith. He further observed that opportunity had already been offered to the accused for cross examination of the witnesses P. W. 1, PW. 2 and P. W. 3, hence the application is rejected. THE case was then postponed for summoning the remaining witnesses of the prosecution. Learned counsel for the accused-petitioners submitted that it is erroneous to say that the application has not been given in good faith. It is submitted that as many as seven witnesses had been examined on behalf of the prosecution but the learned counsel conducting the trial only felt it necessary to re-call those witnesses alone the cross examination of whom was absolutely necessary. It is submitted that even if no lawyer was present for defending the accused-petition-ers on March 22, 1988 when the witnesses were in attendance and accused were going un-represented, to provide legal aid to the accused persons at the cost of State was imperative. The submission of the learned counsel is that no person should be deprived of the right to defend himself through a counsel. It is submi-tted that there are series of judgments of their Lordships of the Supreme Court where to have legal assistance by an accused has been considered as a fundamental right and considering provisions logically to refuse the application is to deprive that right to the accused. It is submitted that even in cases where ano-ther lawyer has been appointed on the same day, continuation of the trial has been considered to be a negation of fair trial. In this view of the matter, it is submitted that the order should be set aside and fair and reasonable opportunity should be given to the accused-petitioners to cross examine the prosecution witnesses PWs. 1,2 and 3. Learned Public Prosecutor however, supported the order passed by learned Sessions Judge I have considered the rival submissions and perused the order passed by learned Sessions Judge. The accused-petitioners arc facing trial for an offence under Secion 302 IPC where there is capital punishment. The offence involves jeopardy to the lives of the accused-petitioners and they have a right to have proper legal assistance. It is now well setted that when the counsel for the accused is not available in the court for one reason or the other, the court must inform the accused that he is entitled to free legal assistance and to enquire from him if he wants a lawyer to be provided at State cost and the court must ensure that there is no violation of fundamental right of the accused guaranted under Art. 21 of the Constitution of India and as now incorporated in Art. 39a of the Constitution, else the trial stands vitiated on account of fatal circumstantial infirmity. Though there are series of judgments in this respect but suffice it would be to quote only the case of Suk Das Vs. Union Territory of Arunachal Pradesh (1) wherein after reviewing the law their Lordships held as under: - "free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Art. 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty of indigence he is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resul-ted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the accused under Art. 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity. " In this case their Lordships not only set aside the trial but did not even order the fresh trial. It may be observed here that it was not the choice of the petitioners thai they could have brought the counsel of their choice to the court on March 22, 1988, because the lawyers through out the State were on strike. I am not entering into the controversy whether the strike was justified or not but suffice it to say that the right of the accused-petitioners cannot be jeopardised for non-appearance of the counsel. , I had considered the question of appointment of amicus curiae in Radhey Shyam Vs. State of Rajasthan (1) wherein 1 had observed that providing legal assistance has not to be considered as a charitable cause but has to be taken as public duty which must be discharged with all humbleness, sincerity and integrity at one's command The right of a citizen muchless of the one who cannot defend himself, is the State's responsibility and this right of the accused has been recognised in all civilized and democratic societies. Not only that I have further observed that even while making the penal of amicus curiaes it should be not considered as a ritual but while appointing such public defenders it must be ensured that they are willing, diligent and intelligent. These observations were made keeping in view the principles laid down by their Lordships of the Supreme Court in series of case and also keeping in view the object behind bringing Art. 39 A in the Constitution of India. The rejection of the application for-re-calling the prosecution witnesses when it is felt that it would not advance the cause of justice, in my opinion, amounts to denial of justice and for that reason I would set aside the order, dated 6-9-88 passed by learned Sessions Judge, Jhalawar, and direct that prosecution witnesses PWs. 1,2 and 3 should be re-called for cross examination by the learned counsellor the accused-petitioners.
(3.) THE petition is allowed that the order, dated 6-9-88, passed by learned Sessions Judge, Jhalawar, is set aside. He is directed to re-call the prosecution witnesses PWs 1,2 and 3 for cross examination by the learned counsel for the accused-petitioners. .;