Chennai: In a peculiar case in which it was held that, due to dereliction of professional duty by the lawyer, an accused was deprived of proper legal assistance and there was denial of a fair trial to him, the Madras High Court set aside an order of the trial court awarding life sentence to him.
He had been awarded the sentence for allegedly kidnapping and sexually assaulting a young minor girl. The court remanded the matter back to a Special Court in Salem to dispose of within 3 months.
Pulling up the lawyer, a division bench comprising Justices S. Nagamuthu and N. Authinathan, however, accepted the unconditional apology tendered by him and his offer to pay Rs 30,000 as compensation.
“He also told us that he received a sum of Rs 10,000 as the legal fees from the accused. Considering his past history and considering the offer made by him as compensation, we avoid suggesting for any disciplinary action against him under the Advocates Act. We are inclined to accept the unconditional apology tendered by him. We direct him to deposit the amount to the credit of the trial court, which shall in turn pay Rs 15,000 to the accused the balance to the victim as compensation”, the bench added.
The accused, aged 23, was alleged to have kidnapped a 16-year-old girl on March 4, 2015 and had repeated sexual intercourse with her till March 6, 2015 which resulted in her pregnancy and he later administered drugs to the victim and caused miscarriage of the foetus on July 3, 2015. Before the trial court in Erode, 16 prosecution witnesses were examined. However, his counsel did not cross examine any of the witnesses nor filed any petition to defer the cross examination or filed petition to recall the witnesses in time.
The trial court awarded life sentence to him. Aggrieved, the accused filed the present appeal. The bench said, “From the above narration of facts, it is crystal clear that there was a gross dereliction of professional duty by the counsel. He has not shown any interest in providing legal assistance to the accused which is his legal obligation under the law, though, admittedly, he was paid his legal fees. Undoubtedly, the accused, though engaging a counsel, was deprived of proper legal assistance because of the failure of the counsel engaged by him to appear before the court to conduct the case”.
Quoting judgments of Supreme Court, the bench said the apex court held that for the failure of the advocate to appear and extend legal assistance by cross examining the witness, the accused cannot be blamed.
“For failure and gross dereliction of duty of the counsel engaged by the accused, the accused cannot be penalised. In our considered view, the trial without legal assistance cannot be regarded as reasonable, fair and just. Therefore, we hold that there is denial of fair trial to the appellant and hence, the conviction and sentence cannot be allowed to sustain and the matter needs to be remanded back to the trial court so as to afford sufficient opportunity to the accused to cross examine the witness and to examine the witness in defence”, the bench added and remanded the matter back to a special court dealing with POCSO Act cases in nearby Salem, after it was pointed out that the same judge was presiding over the trial court.
