CMPMO 139 of 2008. 12.12.2008 Present: Mr. Rajiv Jiwan, counsel for the petitioner. Ms. Ruma Kaushik, Addl, AG, for respondent No. 1. Reply and rejoinder filed. This petition has been filed by the petitioner herein challenging the orders passed by the learned Special Judge, Rampur Bushahar on a number of grounds. When this petition was taken up for hearing, learned counsel for the petitioner confined his submissions to the order passed on 21.11.2008 wherein the presence of the counsel for the petitioner herein was not marked. He also drew my attention to the affidavit filed by learned counsel appearing before the trial Court for the petitioner herein. The affidavit is detailed and states that the petitioner was represented by counsel. An application was filed by the State Vigilance and Anti Corruption Bureau on 12.11.2008 seeking permission for withdrawal of cancellation report filed by the State CID. On 12.11.2008 and 21.11.2008, the Court passed the following orders: “ 12.11.2008 Present: Shri Harvinder Singh, P.P. for the State. Shri Rajesh Kumar, Advocate for the accused. For reply on 21.11.2008. Sd/- (D.K.Sharma) Sessions Judge. -2- 21.11.2008 Present: Shri M.S.Chauhan, P.P. for the State. For consideration on 4.12.2008. Sd/- (D.K.Sharma) Sessions Judge.” The affidavit states: “That on 21.11.2008 I appeared for Sh. Sanjay Gupta to file the reply along with affidavit attested on 17.11.2008 and also to file an application u/s 340 Cr.P.C. supported with an affidavit of the applicant attested on 17.11.2008. But the Ld. Court refused to take the reply and the application u/s 340 Cr.P.C. on record. Attendance of the Counsel was also not marked. On my submission that the reply is being filed at the direction of the Hon’ble Court as per orders dated 12.11.2008 Ld. Court refused to take the reply on record and the case was fixed for 4.12.2008 for consideration.” This indeed reflects a very sad state of affairs. Articles 14 and 21 of the Constitution of India are a bulwark of guarantee against intrusive criminal proceedings. Needless to say, one of the fundamental rights guaranteed is to be represented by counsel and heard by the Court before whom an accused is arraigned. How and under what circumstances, -3- the learned Judge refused to entertain the reply which was ordered to be filed or another application submitted on behalf of the petitioner –accused and did not even permit the counsel to address Court on the legality of the entire proceedings is not clear. I was initially inclined to have called for a report from the learned Court calling upon him to comment on the way in which the proceedings were conducted but I have decided against such a course of action for the directions which I intend to issue hereinafter. I am also not deciding on merits other averments made in this petition which can be raised by the petitioner herein in any other proceedings. Having called for the reply, it was the duty of the learned Court to have taken such reply on record. Even if no such permission was granted, surely the Court should have entertained the reply to ascertain as to whether the rights of the petitioner herein are being adversely affected. Why the presence of the counsel has not been marked still remains a mystery. This course of action is not expected from a Court of law. In the circumstances, this petition is allowed to the extent that a direction is -4- issued to the learned Special Judge that he will take on record the reply intended to be filed by the petitioner herein and all such other applications on record of the case and then proceed to decide them in accordance with law. Needless to say, the right of the petitioner herein is a fundamental right and shall not be denied to him by the Court. Learned counsel has made a prayer for transfer of the case in accordance with the provisions of Section 407 of the Code of Criminal Procedure. I do not intend to go into that aspect in the present proceedings. Liberty is reserved to the petitioner herein to file petition if so permissible under law. The decision in this petition shall not be a bar for filing such a petition. This petition is disposed of accordingly. Pending application(s) shall stand disposed of and interim order(s) vacated. There shall be no order as to costs. Record, if received, be returned to the Court below. December 12, 2008 (PC). (Dev Darshan Sud), J.