Deekshitha Sharmile

The High Court of Kerala Single Bench of Justice V.G. Arun, in a recent judgment, allowed a request to recall two prosecution witnesses who had earlier been cross-examined directly by the accused in the absence of counsel, and set aside the trial court’s order refusing that request. The Court was dealing with a sessions case in which the accused is being tried for offences including wrongful restraint and assault, and had been compelled to conduct the cross-examination himself after his previous lawyer relinquished vakalath. Holding that the trial court was required to inform the accused of his right to be defended by a State-appointed pleader, Justice Arun directed the court below to recall the witnesses for further cross-examination through counsel.

The petitioner was facing prosecution before the Assistant Sessions Court, Thrissur, for offences under Sections 341, 323, 324, 294(b), and 308 of the Indian Penal Code. Initially, he engaged a counsel of his choice to defend him. On 11 December 2023, when the first prosecution witness was scheduled for examination, the counsel relinquished his vakalath.

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Due to financial difficulties, the petitioner was unable to immediately engage another lawyer and was compelled to cross-examine the first two prosecution witnesses on his own. Subsequently, he engaged a close relative as counsel. Upon reviewing the depositions, the newly engaged counsel advised filing an application to recall the witnesses for further cross-examination, citing infirmities in the earlier proceedings.

The petitioner filed an application seeking recall of the witnesses, which was dismissed by the trial court. He contended that the rejection denied him the right to a fair trial, as the court had not informed him of his entitlement to free legal aid under Section 304 of the Code of Criminal Procedure and Article 39A of the Constitution of India. Reliance was placed on decisions of the Supreme Court, including Khatri v. State of Bihar. The prosecution opposed, stating that the petitioner had chosen to conduct the case himself.

The Court framed the central issue and its answer in the following terms: “The short question is whether in a trial before the Court of Sessions, it is mandatory to inform the accused about his right to be defended by a Counsel assigned by the court, if the accused is found incapable of engaging a counsel of his choice.” It then stated: “The answer to the question can only be in the affirmative in view of Section 304(1) of the Cr.P.C, extracted below for easy reference; ‘304. Legal aid to accused at State expense in certain cases.— (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.’”

Referring to constitutional principles, the Court recorded: “The above provision is in tune with Article 39A of the Constitution of India, which envisages grant of free legal aid to the needy by the State.” It relied on precedent to note: “As held by the Apex Court in Hussainara Khatoon and Others (IV) v. Home Secretary, State of Bihar, Patna [(1980) 1 SCC 98], the right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and implicit in the guarantee of Article 21.”

The Court further stated: “The State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require.” and “In Khatri and Others (supra), the Supreme Court has held the State to be under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence.”

Assessing the trial, the Court observed: “A perusal of the proceedings of the trial court from 11.12.2023 onwards, the date on which the petitioner’s earlier Counsel relinquished his Vakalath, reveals that the court had not put the petitioner on notice regarding his right to be defended by a pleader assigned by the State.” It added: “Even if it is for the accused to decide whether he wants to conduct the case himself or through a lawyer assigned by the court, while taking that decision, the accused should be aware about the options available to him.”

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The Court then recorded: “The court below having failed to alert the petitioner about the option of conducting the case through an Advocate assigned by the court, he was left with no option but to cross-examine the prosecution witnesses on his own, being unable to engage a Counsel of his choice.” Concluding on prejudice, it held: “In such circumstances, denial of the prayer for recalling the witnesses will militate against the right to fair trial.”

The Court directed: “In the result, the Criminal Miscellaneous Case is allowed and Annexure A8 order, quashed. The court below shall recall PWs 1 and 2 and the petitioner's Counsel shall cross-examine the witnesses on the day fixed by the court.”

Advocates Representing the Parties

For the Petitioners: Shri. Sarath Babu Kottakkal, Smt. Archana Vijayan, Shri. Sebastin
For the Respondents: Adv. Vipin Narayanan, Public Prosecutor

Conclusion

Case Title: Down Victor v. State of Kerala and Anr.
Neutral Citation: 2025:KER:76713
Case Number: Crl.MC No.8016 of 2025
Bench: Justice V.G. Arun