BAIL SLIP The Appellant / Accused namely P.Anbarasu was directed to be released on 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 MADRAS DATED : 06.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.608 OF 2006 P.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 of 2005 dated 30.5.2005 on the file of Additional Sessions Judge (Fast Track Court No.1) Chennai For Appellant : Mr.R.Sankarasubbu For 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 Sessions Judge, FTC I,Madras made in S.C.NO.222 of 2005 whereby the sole accused stood charged, tried and found guilty under Section 302 IPC and awarded imprisonment for life along with fine with the default https://hcservices.ecourts.gov.in/hcservices/ sentence apart from awarding compensation. 2. The short facts necessary for the disposal of this appeal can 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 Hindustan Tiles,Nesapakkam. PW12 was residing in the house adjacent to that of the accused. The deceased entertained suspicion that her husband, accused/apellant had illicit intimacy with one Sasikala and pursuant to which, she often quarrelled with him. This was known to the neighbours also. b) On the date of occurrence, i.e. on 13.5.2005, at about 12.30 p.m., the accused and deceased were walking on the Natesan Road and near the Police Training College, they were found quarelling with each other. She was questioned about his conduct. At that time, the accused suddenly took the sizzle and stabbed her. This was witnessed by Pws.1,5 and 6. She raised a distress cry. Thereafter, the accused ran away from the place of occurrence. She was taken to the Government Hospital, K.K.Nagar,Chennai where she was declared dead by PW2 doctor. The Accident Register in that regard is marked as Ex.P.2. On intimation from the hospital, PW15, Sub Inspector of Police,Ashok Police Station (Law and Order) proceeded to the hospital and recorded the statement of PW1 which is marked as EX.P.1 and on the strength of which a case came to be registered in Crime No.618/2005 under Section 302 IPC. Express FIR Ex.P.17 was despatched to the Court. c) The investigation was taken by P.W.16 Inspector of Police, On receipt of the copy of First Information report, he proceeded to the scene of occurrence and examined the witnesses. He prepared Observation Mahazar and also drew Rough Sketch Ex.P.20. He conducted inquest on the dead body in the presence of panchayators and prepared inquest report Ex.P.19 Then, the dead body was sent for the purpose of post-mortem to Royapettah Government Hospital. d)P.W.3, Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition which is marked Ex.P.4, has conducted post-mortem on the body of the deceased and has issued Ex.P.5.the post-mortem certificate wherein he has opined that the deceased would appear to have died of haemorrhage shock and due to the injuries sustained between 20 to 24 hours prior to autopsy. e) Pending investigation, P.W.16 arrested the accused and the accused has come forward to give a confessional statement, which was recorded in the presence of the witnesses. The admissible portion of confessional statement of the accused was marked as Ex.P.10 . Pursuant to the confessional statement, the accused produced M.O.5 black pant and M.O.6 white shirt which were recovered under a cover https://hcservices.ecourts.gov.in/hcservices/ of Mahazar Ex.P.11.Then the accused was sent for judicial remand. All the witnessses were examined. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.6, the chemical examiner's report and Ex.P.7 the Serologist's report. On completion of the investigation, the investigator filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and also relied on 21 exhibits and 14 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. No defence side witness was examined . The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the accused/appellant herein. 4. Learned counsel before adverting to the merits of the case, would submit that in the instant case, the accused was denied of an opportunity to put forth his case. The occurrence has actually taken place on 13.5.2005 and the charge sheet was laid before the trial Court on 17.5.2005. The case was committed to the Court of Sessions and necessary charges were framed on 26.5.2005 and the counsel by name Ms.R.Uma Shankari was appointed to defend the accused through legal aid on that day at about 6 p.m.. The case was posted on the next day for trial. On the next day morning, the counsel filed a memo immediately. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and all the witnesses were also cross-examined on the very day. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C..on the very day and the trial Court has not given time for examining any defence witnesses and the Court below heard the arguments on the very same day and the entire trial was over on the same day. The counsel who is appearing for the accused was not given time for preparation of arguments. The Criminal Rules of practice would require that the accused should be given sufficient time to get instruction to put forth his defence. In the instant case, a memo was filed on the next day morning and all the witnesses were examined including cross- examination and the accused was also questioned under Section 313 Cr.P.C. on the same day which was followed by the argument. Under such circumstances, the trial Court has to comply with Rule 167 of the Criminal Rules of practice. But, there was no proper representation given to the accused. In a case like this, capital punishment would also be awarded by the trial Court after giving sufficient 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 counsel relied upon the judgment in BASHIRA Vs. STATE OF U..P. reported in AIR 1968 Supreme Court 1313 which was followed by a Division bench of this Court in Thyagu alias Thyagarajan Vs. State reported in 1990 L.W.Crl.326, apart from attacking the judgment of the trial Court on the merits of the case in the second line of arguments. 5.The court heard the learned Government Advocate(Crl.Side) on the above contentions and has paid its anxious consideration on the submissions made. 6.This Court is of the view that the contentions put forth by either side on the merits of the case need not require consideration in view of the order of remand made hereunder. 7.According to the prosecution, the occurrence took place on 13.5.2005. 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 to point out that when the charges were framed, the accused was not represented by a counsel. One Smt.Uma Shankari, a legal aid counsel was appointed by the trial Court to defend the accused. She was appointed at 6 p.m. on that day, and at that time, she could not get instructions from the accused/appellant who was actually in the custody. The case was taken up on 27.5.2005. Learned counsel filed a memo immediately. All the 16 witnesses were examined continuously. There was no interval, and no time was given to the counsel to get instructions from his client, viz, accused/appellant. One should not expect that the counsel should cross examine even without getting instructions from his client. Following the examination of the witnesses, the accused was also examined under Section 313 Cr.P.C. and answers were recorded. Added further, the Court has recorded no defence witness, and thus no time was given either to get instructions or to the questioning under Section 313 Cr.P.C. or to put forth any defence witness. 8. Rule 167 of the Criminal Rules of Practice reads as follows: "167. Pleader to be given papers:- Pleaders appointed under the above rule shall be furnished with the necessary papers and allowed sufficient time to prepare for the defence." From the very reading of the above Rule, the intention of the legislature would be manifest that the lawyer appointed to defend an accused who is unable to engage a Counsel, should not only be furnished with the necessary papers, but also be given sufficient time 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 could be seen from the affidavit of the Counsel filed before this Court and the Counsel so appointed filed the memo of appearance only the next morning namely 27.5.2005. Thus the necessary papers could have been furnished to the said Counsel after filing the memo namely on the morning 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 lawyer so appointed to go through the papers furnished or to get instructions from his client, thereby enabling him to prepare for the defence. The instant case is a glaring example of the violation of the above Rule which mandates for grant of sufficient time for preparation of the defence. 'Sufficient time' would differ from case to case depending upon the nature of the case and also would depend upon the circumstances. In a given case, granting time for a day or two can even be taken as sufficient time. But, in the instant case, what is noticed by the Court is not insufficiency of time, but the trial Court has not granted any time either to obtain instructions or for preparation of the defence. 9. It is not that the Court is unmindful that it was a Fast Track Court, and as per the norms fixed by the High Court, it has to dispose of number of Sessions Cases per month. Thus in order to reach 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 reach the norms, should not at any time be haste by violating or giving up the procedures which are to be strictly followed. Violation of the mandatory provisions as one envisaged in the above Rule would not only cause prejudice to the interest of the accused, but also lead to miscarriage of justice. Under such circumstances, this Court had no option than to declare it as illegal since there was flagrant violation of the above Rule which mandates for grant of sufficient time to the pleader appointed by the Court when he remains undefended. 10. Under such circumstances, the Court is of the considered opinion that it is a fit case where the judgment of the trial Court has got to be set aside and a direction has got to be given that the appellant shall be tried afresh on the charges levelled against him after complying with the requirement of law as envisaged in the above Rules. Accordingly, the judgment of the trial Court is set aside and the matter is remitted to the trial Court. 11. With the above observation, the appeal is ordered accordingly. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ VJY/nsv To 1. The XVIII Metropolitan Magistrate Saidapet, Chennai 2. -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 600 083 6.The Public prosecutor, High Court, Madras. 7. The Superintendent, Central Prison, Vellore 1 cc To Mr.R.Sankara Subbu, Advocate, SR.28674 Copy to The Section Officer, Criminal Section, High Court, Madras. CRL.A.NO.608 of 2006 MBS(CO) SRA(17/7/2009) https://hcservices.ecourts.gov.in/hcservices/