Hon'ble Surendra Vikram Singh Rathore,J.
(Delivered by Hon'ble Surendra Vikram Singh Rathore, J.) Appellant Amarnath @ Raju, who happens to be the husband of the deceased, has preferred this appeal against the judgment and order dated 29.4.2008, passed by Additional District and Sessions Judge, III, Faizabad in Session Trial No. 110 of 2006, under Sections 498-A, 304-B, 302/34 I.P.C. and Section 3 /4 Dowry Prohibition Act, 1961. By the impugned judgment learned trial court convicted the appellant under Section 302 I.P.C. and sentenced him to undergo life imprisonment and also imposed fine of Rs. 25,000/- with default stipulation of two years rigorous imprisonment and under Section 498-A I.P.C. the appellant was sentenced to undergo rigorous imprisonment for a period of 3 years and was imposed a fine of Rs. 5,000/- with default stipulation of rigorous imprisonment for a period of one year. Hence this appeal.
Co-accused Smt. Parvati Devi, who is mother in law of the deceased, was acquitted. No appeal has been filed challenging the acquittal of Smt. Parvati Devi.
Learned counsel for the appellant has concentrated his arguments only on the ground that in this case trial of the appellant was vitiated because he was not given opportunity, by the trial court, to submit his arguments. Without hearing the appellant, the judgment was pronounced, therefore, the judgment passed by the trial court is vitiated as it has caused great prejudice to the appellant. In support of his arguments, learned counsel for the appellant has placed reliance on the pronouncement of Hon'ble Apex Court on the case of Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT Delhi reported in 2012 Cr LJ 1069.
Learned Additional Government Advocate has argued that the appellant was given sufficient opportunity to submit his arguments but he used his 'right to argue' as a weapon to linger on the trial. Learned trial court afforded more than reasonable opportunities to the appellant to argue but the appellant did not avail the same. Hence, now he cannot say that his defense was prejudiced.
We have gone through the record and also the case law relied by the learned counsel for the appellant.
Now the first question before us is whether sufficient opportunity was afforded to the appellant to submit his argument or not?
Following chart makes the position clear, it is prepared from the stage of Section 313 Cr.P,C.:-
Sr. No. Date Proceedings Next Date Fixed 1 08/01/08 Statements of the accused-applicant recorded u/s 313 Cr.P.C. Date fixed for defense evidence.
16/1/08 2 16/1/08 Accused persons declined to adduce the defense evidence .
21/1/08 3 21/1/08 Adjourned on the application of the appellant.
29/1/08 4 29/1/08 Adjourned on the application of the appellant.
01/02/08 5 01/02/08 Presiding Officer was on leave 11/02/08 6 11/02/08 Adjournment moved on behalf of the accused 22/2/08 7 22/2/08 Arguments of the prosecution heard.
18/2/08 for defense argument 8 18/2/08 Presiding Officer was on leave 21/2/08 9 21/2/08 Adjournment prayed on behalf of the accused 22/2/08 10 22/2/08 Adjourned on the application of the accused giving him last opportunity 27/2/08 11 26/2/08 File was summoned by the District Judge on a transfer application moved by the appellant 12 07/04/08 File received in the court of A.D.J. Court No.3, counsel for the applicant gave undertaking to argue the case in post-lunch session. In post-lunch session counsel for the appellant moved an application for cancellation of his Power. Direction was given to submit written arguments upto 15.4.08.
15/4/08 13 15/4/08 The case was called out in the post-lunch session four times but none appeared on behalf of the accused nor the written arguments were filed. Therefore, 29.4.08 was fixed for judgment.
29/4/08 14 29/4/08 Judgment was pronounced.
Above chart clearly shows that several opportunities were made available to the accused to submit his arguments, but it is also clear that the case was decided without hearing his arguments. After withdrawal of power by the counsel for appellant, no other counsel had filed power on behalf of the appellant, nor any amicus curiae was appointed by the court to defend the appellant at that stage. However, perusal of record makes it clear that up to the stage of arguments he was duly represented by his counsel.
In the case law of Mohd. Hussain (supra) relied upon by the learned counsel for the appellant Hon'ble Apex Court in paragraph 17 has held as under :-
"....The necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Cr.P.C......."
In the case law of Maneka Gandhi v. Union of India reported in AIR 1978 SC 597 Hon'ble Apex Court has held as under :-
"It has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution."
In a criminal trial, right to argue the case is a very important and sacred right of the accused. In exercise of this right, an opportunity is given to the accused to reply the prosecution case against him in general i.e. to sum up his defense in the background of the prosecution evidence. It includes reply of the accused on the whole case. This stage of the trial is of prime importance for the accused to know as to what exactly the entire prosecution case is by hearing arguments of the prosecution and thereafter to reply the same. Therefore much care is expected from the trial Judge at this stage.
On this point Hon'ble Apex Court in a recent decision in the case of Mohd. Sukur Ali v. State of Assam reported in 2011 (75) ACC 780, has held as under :-
"Even assuming that the Counsel for the accused does not appear because of the Counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his Counsel since an accused in a criminal case should not suffer for the fault of his Counsel and in such a situation the Court should appoint another Counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the "heart and soul" of the fundamental rights."
In view of the aforementioned facts and legal position we are of the considered view that it would be proper, in the interest of the justice, to remand this case for affording an opportunity to the appellant to submit his arguments.
Accordingly, the appeal is partly allowed. The impugned judgment and order dated 29.4.2008, passed by the Additional District & Sessions Judge, III, Faizabad in Sessions Trial No. 110 of 2006, is hereby set-aside to the extent it relates to the conviction of the appellant ( Amarnath @ Raju).
Case is remanded back to the trial court.
Learned trial court is hereby directed to re-hear the matter, from the stage of arguments, expeditiously and to dispose it of, after affording opportunity of arguments to the appellant. The case shall be decided within a period of one month from the date a certified copy of this order is produced before it. It is further directed that in case appellant is unable to engage a counsel than the trial court shall appoint an amicus curiae to submit arguments on behalf of the appellant. Parties shall appear before the court below on 7th May, 2012.
It is hereby made clear that this judgment shall not in any manner affect the acquittal of the co-accused Smt. Parvati Devi.
Since appellant was in custody during trial therefore the appellant ( Amarnath @ Raju) shall remain in custody.
Before parting with the judgment, we consider it necessary to point out that in this case learned trial court had convicted the appellant under Section 498-A I.P.C. and sentenced him with rigorous imprisonment of 3 years and fine of Rs. 5,000/- and in default of payment of fine the appellant was directed to undergo rigorous imprisonment for a period of one year. Maximum sentence provided under Section 498-A I.P.C. is 3 years. Therefore, the imprisonment in default of payment of fine could not have been inflicted for a period of one year, in view of Section 65 of the Indian Penal Code, which reads as under:-
"Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable- The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. "
So sentence of one year in default of payment of fine under Section 498-A I.P.C. could not have been inflicted as it would exceed one fourth of the maximum sentence provided for the offense.
Though this point was not raised before us but this technical defect came to our notice, therefore, we have made it clear in our judgment.
Office is directed to communicate this order and to send the lower court record forthwith to the court concerned.