P.Anbarasu v. State represented by Inspector of Police

BAIL SLIPThe Appellant / Accused namely P.Anbarasu was directed to be releasedon bail by the order of this Court dated 08.05.2007 in Crl.M.P.No.1 /2006 in Crl.A.NO.608/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.608 OF 2006P.Anbarasu .. Appellant/Accused Vs.State represented by Inspector of Police,R3 Ashok Nagar Police Station, Chennai 600 083(Crime No.618 of 2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the conviction and sentence imposed in S.C.No.222 of2005 dated 30.5.2005 on the file of Additional Sessions Judge (FastTrack Court No.1) Chennai For Appellant : Mr.R.SankarasubbuFor Respondent: Mr.A.Saravanan, Government Advocate(Crl. Side) - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional SessionsJudge, FTC I,Madras made in S.C.NO.222 of 2005 whereby the soleaccused stood charged, tried and found guilty under Section 302 IPCand awarded imprisonment for life along with fine with the default https://hcservices.ecourts.gov.in/hcservices/ sentence apart from awarding compensation.

The short facts necessary for the disposal of this appealcan be stated as follows: a) The accused/appellant is the husband of the deceased Amudha.PW.12 is the elder brother of the deceased. Amudha was employed as an Attender in Kendriya Vidyala. The accused was employed in HindustanTiles, Nesapakkam. PW12 was residing in the house adjacent to that ofthe accused. The deceased entertained suspicion that her husband, accused/apellant had illicit intimacy with one Sasikala and pursuantto which, she often quarrelled with him. This was known to theneighbours also. b) On the date of occurrence, i.e. on 13.5.2005, at about 12.30p.m., the accused and deceased were walking on the Natesan Road andnear the Police Training College, they were found quarelling witheach other. She was questioned about his conduct. At that time, theaccused suddenly took the sizzle and stabbed her. This was witnessedby Pws.1,5 and 6.

The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 16 witnessesand also relied on 21 exhibits and 14 M.Os. On completion of theevidence on the side of the prosecution, the accused was questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. No defence side witness was examined . The trialcourt, after hearing the arguments advanced and scrutinizing thematerials available, took the view that the prosecution has provedthe case beyond reasonable doubt and found the accused guilty andawarded punishment as referred to above. Hence this appeal has arisenat the instance of the accused/appellant herein.

Learned counsel before adverting to the merits of thecase, would submit that in the instant case, the accused was deniedof an opportunity to put forth his case. The occurrence has actuallytaken place on 13.5.2005 and the charge sheet was laid before thetrial Court on 17.5.2005. The case was committed to the Court of Sessions and necessary charges were framed on 26.5.2005 and thecounsel by name Ms.R.Uma Shankari was appointed to defend the accusedthrough legal aid on that day at about 6 p.m.. The case was posted onthe next day for trial. On the next day morning, the counsel filed amemo immediately. In order to substantiate the charges levelledagainst the accused, the prosecution examined 16 witnesses and allthe witnesses were also cross-examined on the very day. Oncompletion of the evidence on the side of the prosecution, theaccused was questioned under Section 313 Cr.P.C..on the very day andthe trial Court has not given time for examining any defencewitnesses and the Court below heard the arguments on the very sameday and the entire trial was over on the same day. The counsel whois appearing for the accused was not given time for preparation ofarguments. The Criminal Rules of practice would require that theaccused should be given sufficient time to get instruction to putforth his defence. In the instant case, a memo was filed on the nextday morning and all the witnesses were examined including cross-examination and the accused was also questioned under Section 313Cr.P.C. on the same day which was followed by the argument. Undersuch circumstances, the trial Court has to comply with Rule 167 ofthe Criminal Rules of practice. But, there was no properrepresentation given to the accused. In a case like this, capitalpunishment would also be awarded by the trial Court after givingsufficient time. But this has not been done so and hence the entire https://hcservices.ecourts.gov.in/hcservices/ trial is vitiated. In support of his contention, learned counselrelied upon the judgment in BASHIRA Vs. STATE OF U..P. reported inAIR 1968 Supreme Court 1313 which was followed by a Division bench ofthis Court in Thyagu alias Thyagarajan Vs. State reported in 1990L.W.Crl.326, apart from attacking the judgment of the trial Court onthe merits of the case in the second line of arguments.

The court heard the learned Government Advocate(Crl. Side)on the above contentions and has paid its anxious consideration onthe submissions made.

This Court is of the view that the contentions put forthby either side on the merits of the case need not requireconsideration in view of the order of remand made hereunder.

According to the prosecution, the occurrence took place on13.5.2005. The charge sheet was laid on 17.5.2005. On committal, charges were framed on 26.5.2005 on the very day. It is pertinent topoint out that when the charges were framed, the accused was notrepresented by a counsel. One Smt. Uma Shankari, a legal aid counselwas appointed by the trial Court to defend the accused. She wasappointed at 6 p.m. on that day, and at that time, she could not getinstructions from the accused/appellant who was actually in thecustody. The case was taken up on 27.5.2005. Learned counsel filed amemo immediately. All the 16 witnesses were examined continuously. There was no interval, and no time was given to the counsel to getinstructions from his client, viz, accused/appellant. One should notexpect that the counsel should cross examine even without gettinginstructions from his client. Following the examination of thewitnesses, the accused was also examined under Section 313 Cr.P.C.and answers were recorded. Added further, the Court has recorded nodefence witness, and thus no time was given either to getinstructions or to the questioning under Section 313 Cr.P.C. or toput forth any defence witness.

Rule 167 of the Criminal Rules of Practice reads as follows: "167. Pleader to be given papers:- Pleaders appointed underthe above rule shall be furnished with the necessary papersand allowed sufficient time to prepare for the defence. "From the very reading of the above Rule, the intention of thelegislature would be manifest that the lawyer appointed to defend anaccused who is unable to engage a Counsel, should not only befurnished with the necessary papers, but also be given sufficienttime for preparation of the defence. In the instant case, the Counsel was appointed by the Court at 6.00 P.M. on 26.5.2005 as couldbe seen from the affidavit of the Counsel filed before this Court andthe Counsel so appointed filed the memo of appearance only the nextmorning namely 27.5.2005. Thus the necessary papers could have beenfurnished to the said Counsel after filing the memo namely on themorning of 27.5.2005. The case was also taken up for trial the very https://hcservices.ecourts.gov.in/hcservices/ day which would mean no time was available in the hands of the lawyerso appointed to go through the papers furnished or to getinstructions from his client, thereby enabling him to prepare for thedefence. The instant case is a glaring example of the violation ofthe above Rule which mandates for grant of sufficient time forpreparation of the defence. 'Sufficient time' would differ from caseto case depending upon the nature of the case and also would dependupon the circumstances. In a given case, granting time for a day ortwo can even be taken as sufficient time. But, in the instant case, what is noticed by the Court is not insufficiency of time, but thetrial Court has not granted any time either to obtain instructions orfor preparation of the defence.

It is not that the Court is unmindful that it was a FastTrack Court, and as per the norms fixed by the High Court, it has todispose of number of Sessions Cases per month. Thus in order toreach the norms as fixed by the Court, it has to be necessarily fast, but it should not be haste. The Fast Track Court in order to reachthe norms, should not at any time be haste by violating or giving upthe procedures which are to be strictly followed. Violation of themandatory provisions as one envisaged in the above Rule would notonly cause prejudice to the interest of the accused, but also lead tomiscarriage of justice. Under such circumstances, this Court had nooption than to declare it as illegal since there was flagrantviolation of the above Rule which mandates for grant of sufficienttime to the pleader appointed by the Court when he remains undefended.

Under such circumstances, the Court is of the consideredopinion that it is a fit case where the judgment of the trial Courthas got to be set aside and a direction has got to be given that theappellant shall be tried afresh on the charges levelled against himafter complying with the requirement of law as envisaged in the aboveRules. Accordingly, the judgment of the trial Court is set aside andthe matter is remitted to the trial Court.

With the above observation, the appeal is orderedaccordingly. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ VJY/nsvTo1. The XVIII Metropolitan Magistrate Saidapet, Chennai2. -Do-Thro The Chief Judicial Magistrate Egmore, Chennai.3. The Additional Sessions Judge (Fast Track Court No.1) Chennai 4. -Do-Thro The Principal Sessions Judge, Chennai.5. The Inspector of Police, R3 Ashok Nagar Police Station, Chennai 600 0836.The Public prosecutor, High Court, Madras.7. The Superintendent, Central Prison, Vellore1 cc To Mr.R.Sankara Subbu, Advocate, SR.28674Copy to The Section Officer, Criminal Section, High Court, Madras. CRL.A.NO.608 of 2006MBS(CO)SRA(17/7/2009)