1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2580 OF 2009 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Vikas Shivarkar i/b Mr. Nitesh Nevshe for the petitioner. Mr. Nimish Desai for respondent no.2. Mr. A.S. Shitole, A.P.P. for the State. CORAM : D.G. KARNIK, JJ. DATE : 18TH NOVEMBER 2009 P.C. : 1. Heard. 2. By this petition under Article 227 of the Constitution of India, the petitioner challenges the multiple orders, namely the order dated 17th February 2009 rejecting his application for legal aid, the order dated 15th April 2009 recording his plea and the order dated 15th September 2009 issuing non-bailable warrant 2 on account of his absence before the Magistrate. 3. As regards the last order dated 15th September 2009, the applicant subsequently appeared before the Magistrate and prayed for cancellation of the warrant which request was granted. Hence, the challenge to the order dated 15th September 2009 does not survive. 4. As regards the application for legal aid, the same was rejected on 17th February 2009 and the present petition has been filed in September 2009. The delay in challenging the order is not satisfactorily explained. Even on merits, I am not satisfied that the order requires interference for the reasons mentioned below. 5. Learned counsel for the petitioner submitted that under section 304 of the Cr. P.C. it is a statutory duty of the State to provide legal aid. Perusal of section 304 of Cr.P.C. shows that it is applicable only in case of a trial 3 before the Court of Sessions when the accused is not represented by a pleader. Section 304 of Cr.P.C. does not apply to a trial before a Magistrate. The contention that the State was duty bound to provide legal aid is therefore rejected. 6. So far as the merits of the request are concerned, the prosecution arises out of a private complaint filed by one Suresh Vithal Medekar that the petitioner had defamed him by exhibiting on the notice board of the society a letter dated 10th December 2007, with an intention to harm his reputation. It thus appears that the action of the petitioner, if proved, would amount to both a civil wrong as well as a criminal offence. The petitioner was a secretary of the society and owns a flat in the society. Thus, the petitioner is not an indigent person not able to afford to engage a lawyer. It appears that his intention is to delay the trial under some pretext. In my view, therefore, the 4 Magistrate was right in rejecting the application of the petitioner for legal aid. 6. As regards the challenge to the recording of the plea, relying upon an unreported decision of the Karnataka High Court in B. Rajanna v. State of Karnataka, learned counsel contented that the plea is defective. A copy of this judgment typed on an ordinary paper unauthenticated by anybody was tendered. There is no proof of the authenticity of the said copy. Assuming, however, it to be a true copy the decision does not further the case of the petitioner. In that case, it appears that the plea was recorded without explaining the charge to the accused and therefore the court held that the plea was defective. In the present case, the plea itself shows that the charge was properly explained to the accused. The particulars of the alleged offence explained to the accused were explained to the petitioner by the learned Magistrate in following words:- 5 "That you on 10/12/2007 at Cosmopolitan C.H.S., Ram Baug, Powai, Mumbai defamed complainant Suresh Vithal Modhekar by exhibiting the letter dated 10/12/07 replied to the letter of complainant on the notice board of the society, intending to harm to the reputation of the said complainant and that you hereby committed an offence p/u/s.500 of the IPC and within my cognizance. And I hereby direct that you be tried by this Court on the said charge.” Thereafter, a question was put to the petitioner whether he pleads guilty to the charge and he pleaded not guilty. Thus, the plea was recorded after explaining the charge/allegations against him. 7. In my view, there is no breach of section 251 of the Cr.P.C. There is no merit in the writ 6 petition which is hereby dismissed. Interim orders stand vacated. (D.G. KARNIK, J.)