Trial
under section 302 of Penal Code
Conviction without hearing the accused is void
High Court Division
(Criminal Appellate Jurisdiction)
Criminal Appeal No. 2388 of 1997
Babu Khan
Vs
State
Mr. Justice Amirul Kabir Chowdhury
and Mr. Justice AFM Ali Asgar
Date of judgment: 30.06. 2003
Background
Amirul Kabir Chowdhury J: At the instance of the accused appellant this
appeal has been directed against judgment and order dated 28-1-1986
passed by the learned Sessions Judge, Rajbari in Sessions Case No. 75
of 1985 convicting the accused appellant under section 302 of the Penal
Code and sentencing him to imprisonment for life.
Prosecution
case, in brief, is that on 20-9-1984 at night accused appellant Babu
Khan entered the house of one Alauddin Khan and when it was detected
he along with his wife caught hold of accused Babu Khan and then Babu
Khan assaulted them indiscriminately with dagger and fled away. Jarina
Khatun wife of Alauddin Khan could recognise Babu Khan in the light
of Kupi bati and the victims Alauddin Khan and his wife were taken to
hospital for treatment. Alauddin Khan on 22-9-1984 succumbed to the
injuries and out of the occurrence one Abdur Rajjak, neighbour of the
victims, lodged the First Information Report on 21-9-1984. After investigation
the police submitted charge-sheet against the accused appellant Babu
Khan on 2-11-1984 under sections 380/511/459/326/302 of the Penal Code
and that the case was sent to the Court of Sessions for trial. The learned
Sessions Judge on 7-11-1986 framed charge against the accused appellant
under sections 302/326 of the Penal Code in his absence and by the impugned
judgment and order convicted the appellant.
Deliberation
In support of the appeal the learned Advocate for the accused appellant
has taken us through the order sheets of the Court below and also the
impugned judgment. He submits that the accused appellant has been charged
and tried under sections 302/326 of the Penal Code and has been accordingly
convicted under section 302 of the Penal Code. He also submits that
the accused admittedly being in abscondence ought to have been defended
by a lawyer at the cost of the State under Chapter XII of the Legal
Remembrance Manual. There being no such appointment of any lawyer at
the trial from the beginning which is absolutely illegal. Hence, the
impugned judgment and order cannot sustain in the eye of law. He further
submits that the accused appellant was not aware of the proceeding or
of the impugned judgment and that being arrested on 29-4-1995 he came
to know about the judgment for the first time and got the appeal filed.
The learned advocate further submits that there is no cogent evidence
to warrant conviction against the accused appellant and, as such, the
appeal may be allowed acquitting the accused-appellant.
The
learned Deputy Attorney-General, submits that every accused charged
under section 302 of the Penal Code punishable with death has got right
to be defended by a lawyer and the abscondence of accused, if any, should
not deprive him of such chance to be represented by a lawyer. In this
view of the matter, the learned Deputy Attorney-General finds it difficult
to support the impugned judgment and order since from the record it
is apparent that the accused was not represented by any lawyer at any
stage of the trial.
We
have considered the submissions made at the Bar and perused the materials
on record. Rule I of Chapter XII of the Legal Remembrance's Manual,
1960 reads as follows:
"1.
Pauper accused punishable with capital sentence to be given legal assistance
-- every person charged with committing an offence punishable with death,
shall have legal assistance at his trial and the Court should provide
advocate or pleaders for the defence unless they certify that the accused
can afford to do so."
It
is thus provided that every person charged with committing any offence
punishable with death shall have to be given legal assistance at his
trial. Under section 340 of the Code of Criminal Procedure and Article
33 of our Constitution the right to consult and to be defended by a
legal practitioner has been guaranteed. In this connection the decision
in the case of State Vs Imdad Ali Bepary in 36 DLR 333 may be referred
to wherein their Lordships held "In this case it appears that no
lawyer on behalf of the accused was present in Court. As such, the Court
below before proceeding with the case ought to have appointed an Advocate
to defend the accused. In that view of the said illegality the conviction
and sentence of the condemned prisoner under section 302 is not maintainable
and therefore set aside and the case is sent back for re-trial to the
court below after appointing an Advocate to represent the accused and
give him a chance to cross-examine the witnesses adduced in the case."
In
another decision in the case of Mobarak Ali (Md) alias Mobarak Ali Mondal
Vs People's Republic of Bangladesh, represented by the Secretary Ministry
of Home Affairs in 50 DLR 10, it has been observed "We hold that
the requirement of law is that irrespective of whether the accused is
absconding or not he is as of right entitled to be represented and defended
by a lawyer appointed by the court and the trial Court must ensure that
it has been done before the commencement of the trial or else the trial
and the resultant conviction and sentence would be vitiated."
In
agreement with the principles of law laid down above and in consonance
with section 340 of the Code of Criminal Procedure, and Rule I of Chapter
XII of the Legal Remembrance's Manual we hold that right of an accused
to be defended by a lawyer in a case charged under section 302 of the
Penal Code, being punishable with death, is an inalienable right guaranteed
in the law of our land and if any trial takes place in refusing such
fundamental right, the trial is a misnomer and the judgment passed in
such trial convicting an accused is no judgement in the eye of law.
Decision
On perusal of Order No.1 dated 12-11-1985 and Order No. 4 dated 7-1-1986
it appears that the learned Sessions Judge himself found that the accused
was absconding and by Order No. 4 he framed charge against the absconding
accused under sections 302/326 of the Penal Code. Section 302 of the
Penal Code prescribes capital punishment and, as such, we are of the
view that it was the duty of the learned Sessions Judge to take step
or himself appoint a competent Advocate to represent the absconding
accused. Failure of the learned Judge to make such appointment and arrange
defence of the accused through a lawyer has vitiated the entire trial
and, as such, the impugned judgment and order complained of cannot be
maintainable.
In
view of our discussion made above we find substance in the submission
made by the learned Advocate appearing for the appellant. Since we decide
to send the case on remand for fresh trial according to law, we do not
like to make any comment at this stage as to merits of the case. On
the reasoning aforesaid the appeal succeeds. The appeal is allowed.
The impugned judgment and order dated 28-1-1986 passed by the learned
Session Judge, Rajbari in Sessions Case No. 75 of 1985 convicting the
accused appellant under section 302 of the Penal Code is set aside.
The case is sent back to the learned Sessions Judge, Rajbari for fresh
trial in accordance with law.
Advocate
Md. Ashraf-uz-Zaman Khan and Advocate Md. Rezaul Haque for the Appellant.
Golam Kibria, Deputy Attorney-General with Md Ferozur Rahman, Assistant
Attorney-General for the State.
