It is the duty of the court to provide a lawyer to an accused if he is not being represented by anyone during the trial, a Delhi court has said while setting aside the six months jail term awarded to a youth for theft. Quashing a magisterial court’s order convicting Delhi resident Shravan Kumar for the offence under section 379 (theft) of IPC, Additional Sessions Judge Sanjay Sharma said he was not granted an opportunity to cross-examine the prosecution witnesses after his counsel failed to appear during the trial.
“Cross-examination is a valuable right which is available to the accused and even, the Constitution recognises this right under article 22(1) (no person who is arrested shall he be denied the right to consult, and to be defended by a legal practitioner of his choice),” the court observed.?
According to police, Kumar had allegedly stolen a cell phone from the pocket of one Sanjeev Jha in Delhi Transport Corporation (DTC) bus and passed it to his accomplice near Saket City Mall here.
Kumar’s accomplice managed to flee from the bus but he was apprehended and handed over to the police.
The sessions court, while allowing Kumar’s appeal against his conviction, said, “If an accused is not being represented by an advocate, it is the duty of the court to provide him an advocate from legal services authority which has been created for this purpose and should not mechanically proceed with the trial without cross examination of the witnesses.”
It added that when Jha, whose mobile was alleged to be stolen, was examined, the accused was not granted permission to cross examine him as his lawyer did not appear.
“In the present case, as aforesaid, the entire trial proceeded and was concluded without a single witness being cross examined…. It is to be observed that since none of the witnesses were cross examined, therefore, there was no occasion to impeach their testimonies,” the court said.
The court said that apart from Jha, two witnesses were police officials, including the investigating officer of the case, and two others were formal witnesses, which were not cross examined as no counsel appeared for the accused.
It also noted that neither Kumar’s accomplice was arrested during the trial nor the cell phone was recovered despite the fact that Kumar was arrested on the basis of Jha’s testimony.
“The above discussion clearly shows that despite the testimonies of the witnesses remaining unrebutted, the prosecution failed to discharge its onus of proving the case against the appellant, beyond reasonable doubt and the appellant surely deserve benefit of doubt,” the court said.