Mandatory for trial court to appoint legal aid lawyer when counsel for accused doesn't appear: Karnataka High Court

The Karnataka High Court recently set aside the conviction of a person accused of offences under the Protection of Children from Sexual Offences Act (POCSO), as the counsel representing the accused failed to appear during the trial [Somashekara v. State of Karnataka]..Justice KS Mudagal stated that the trial court should have appointed a legal aid advocate to defend the accused in such an instance."As per the prosecution papers, at the time of filing charge sheet the appellant was hardly aged 21 years and was working as a mason. He was in judicial custody. Under such circumstances, when his advocate failed to represent him, in view of Section 304, CrPC and aforesaid other provisions, it was mandatory for the Trial Court to refer the matter to the District Legal Services Authority for providing free legal aid to the appellant. That is evident from Section 304, CrPC as the word 'shall' is used in the said provision," the order stated..The Court thus allowed the appeal by the accused and remanded the matter to the trial court for fresh consideration, directing it to assign an advocate for the accused under Section 304 (legal aid to accused at State expense) of the Code of Criminal Procedure (CrPC)..The accused-appellant in this case had been charged with offences under Section 376 (rape), 506 (criminal intimidation), 323 (voluntarily causing hurt) of the Indian Penal Code (IPC) and Section 5(i) (penetrative sexual assault causing grievous hurt or bodily harm or injury to sexual organs of a child) read with Section 6 (aggravated penetrative sexual assault) of the POCSO Act.The prosecution alleged that the accused lured his 14-year-old neighbour to a secluded place and committed penetrative sexual assault on her. After threatened her and sexually assaulted her on different instances, she disclosed the assault to her mother and her aunt. The accused was arrested and sent to judicial custody..During the trial, the counsel for the accused failed to conduct the cross-examination of four material witnesses. The trial court convicted the accused based on the evidence brought before it, and rejected the prayer of the accused to adjourn the case for cross-examination of the witnesses, while noting that the opportunity to do so had already been given. In view of Section 33(5) (special court to ensure that the child is not called repeatedly to testify in the court), further adjournment could not be granted, the trial court had noted. .Before the High Court, the appellant-accused was again not represented. The Court hence appointed Advocate Suyog Herele as Amicus Curiae. The main challenge of the accused was that when his counsel abandoned him and he was in judicial custody, he was not given legal aid, thus violating his fundamental rights. High Court Government Pleader Shankar HS contended that in view of Section 33(5) of POCSO Act and the objective of the Act, the trial court had no option but to proceed with the matter. .The High Court noted that Article 14 of the Constitution makes it clear that the life and personal liberty of a person can be deprived only in accordance with procedure established by law. .Procedural law with regard to trials as enumerated in Sections 303 (right of person against whom proceedings are instituted to be defended) and 304 of the CrPC show that an accused has a right to be defended by a pleader of his choice. If the Court finds that he is not represented or does not have the means to engage a counsel, he must be assigned a pleader at the expense of the State. .Referring to Article 39A (equal justice and free legal aid) of the Constitution, the Court noted that the Legal Services Authority Act has been enacted to achieve the said objective. .Justice Mudagal did not accept the contention that the trial court was mandated to reject the prayer of the accused to grant time for cross-examination due to Section 33(5) of the POCSO Act, observing that such an interpretation is contrary to Article 13(2) (state to not make any law which takes away or abridges rights conferred by the fundamental rights) of the Constitution. .The Court must strike harmony between the two laws, it was noted. Conviction without providing an opportunity to the accused to cross-examine prosecution witnesses is denial of a fair trial, and liable to be set aside, the Court added while referring to the case of Govindaraju v. State of Karnataka..It further directed that the four material witnesses are to be recalled and cross-examined, after which the trial court may examine the accused under Section 313 (power to examine the accused) of the CrPC, and give him the opportunity to file a defence statement. The trial court was directed to conduct the trial expeditiously and comply with Section 33(5) of the POCSO Act for cross-examination of the victim in the case. .[Read Order]