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Trial under section 302 of Penal Code

Conviction without hearing the accused is void
***High Court Division (Criminal Appellate Jurisdiction) Criminal Appeal No. 2388 of 1997 Babu Khan
Vs State Mr. Justice Amirul Kabir Chowdhury and Mr. Justice AFM Ali Asgar Date of judgment: 30.06. 2003***
Background
Amirul Kabir Chowdhury J: At the instance of the accused appellant this appeal has been directed against judgment and order dated 281-1986 passed by the learned Sessions Judge, Rajbari in Sessions Case No. 75 of 1985 convicting the accused appellant under section 302 of the Penal Code and sentencing him to imprisonment for life.
Prosecution case, in brief, is that on 20-91984 at night accused appellant Babu Khan entered the house of one Alauddin Khan and when it was detected he along with his wife caught hold of accused Babu Khan and then Babu Khan assaulted them indiscriminately with dagger and fled away. Jarina Khatun wife of Alauddin Khan could recognise Babu Khan in the light of Kupi bati and the victims Alauddin Khan and his wife were taken to hospital for treatment. Alauddin Khan on 22-9-1984 succumbed to the injuries and out of the occurrence one Abdur Rajjak, neighbour of the victims, lodged the First Information Report on 219-1984. After investigation the police submitted charge-sheet against the accused appellant Babu Khan on 2-11-1984 under sections 380/511/459/326/302 of the Penal Code and that the case was sent to the Court of Sessions for trial. The learned Sessions Judge on 7-11-1986 framed charge against the accused appellant under sections 302/326 of the Penal Code in his absence and by the impugned judgment and order convicted the appellant.
Deliberation
In support of the appeal the learned Advocate for the accused appellant has taken us through the order sheets of the Court below and also the impugned judgment. He submits that the accused appellant has been charged and tried under sections 302/326 of the Penal Code and has been accordingly convicted under section 302 of the Penal Code. He also submits that the accused admittedly being in abscondence ought to have been defended by a lawyer at the cost of the State under Chapter XII of the Legal Remembrance Manual. There being no such appointment of any lawyer at the trial from the beginning which is absolutely illegal. Hence, the impugned judgment and order cannot sustain in the eye of law. He further submits that the accused appellant was not aware of the proceeding or of the impugned judgment and that being arrested on 29-4-1995 he came to know about the judgment for the first time and got the appeal filed. The learned advocate further submits that there is no cogent evidence to warrant conviction against the accused appellant and, as such, the appeal may be allowed acquitting the accused-appellant.
The learned Deputy Attorney-General, submits that every accused charged under section 302 of the Penal Code punishable with death has got right to be defended by a lawyer and the abscondence of accused, if any, should not
deprive him of such chance to be represented by a lawyer. In this view of the matter, the learned Deputy Attorney-General finds it difficult to support the impugned judgment and order since from the record it is apparent that the accused was not represented by any lawyer at any stage of the trial.
We have considered the submissions made at the Bar and perused the materials on record. Rule I of Chapter XII of the Legal Remembrance's Manual, 1960 reads as follows:
"1. Pauper accused punishable with capital sentence to be given legal assistance -- every person charged with committing an offence punishable with death, shall have legal assistance at his trial and the Court should provide advocate or pleaders for the defence unless they certify that the accused can afford to do so."
It is thus provided that every person charged with committing any offence punishable with death shall have to be given legal assistance at his trial. Under section 340 of the Code of Criminal Procedure and Article 33 of our Constitution the right to consult and to be
and the resultant conviction and sentence would be vitiated."
In agreement with the principles of law laid down above and in consonance with section 340 of the Code of Criminal Procedure, and Rule I of Chapter XII of the Legal Remembrance's Manual we hold that right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code, being punishable with death, is an inalienable right guaranteed in the law of our land and if any trial takes place in refusing such fundamental right, the trial is a misnomer and the judgment passed in such trial convicting an accused is no judgement in the eye of law.
Decision
On perusal of Order No.1 dated 12-11-1985 and Order No. 4 dated 7-1-1986 it appears that the learned Sessions Judge himself found that the accused was absconding and by Order No. 4 he framed charge against the absconding accused under sections 302/326 of the Penal Code. Section 302 of the Penal Code prescribes capital
defended by a legal practitioner has been guaranteed. In this connection the decision in the case of State Vs Imdad Ali Bepary in 36 DLR 333 may be referred to wherein their Lordships held "In this case it appears that no lawyer on behalf of the accused was present in Court. As such, the Court below before proceeding with the case ought to have appointed an Advocate to defend the accused. In that view of the said illegality the conviction and sentence of the condemned prisoner under section 302 is not maintainable and therefore set aside and the case is sent back for re-trial to the court below after appointing an Advocate to represent the accused and give him a chance to cross-examine the witnesses adduced in the case."
In another decision in the case of Mobarak Ali (Md) alias Mobarak Ali Mondal Vs People's Republic of Bangladesh, represented by the Secretary Ministry of Home Affairs in 50 DLR 10, it has been observed "We hold that the requirement of law is that irrespective of whether the accused is absconding or not he is as of right entitled to be represented and defended by a lawyer appointed by the court and the trial Court must ensure that it has been done before the commencement of the trial or else the trial
punishment and, as such, we are of the view that it was the duty of the learned Sessions Judge to take step or himself appoint a competent Advocate to represent the absconding accused. Failure of the learned Judge to make such appointment and arrange defence of the accused through a lawyer has vitiated the entire trial and, as such, the impugned judgment and order complained of cannot be maintainable.
In view of our discussion made above we find substance in the submission made by the learned Advocate appearing for the appellant. Since we decide to send the case on remand for fresh trial according to law, we do not like to make any comment at this stage as to merits of the case. On the reasoning aforesaid the appeal succeeds. The appeal is allowed. The impugned judgment and order dated 28-1-1986 passed by the learned Session Judge, Rajbari in Sessions Case No. 75 of 1985 convicting the accused appellant under section 302 of the Penal Code is set aside. The case is sent back to the learned Sessions Judge, Rajbari for fresh trial in accordance with law.
Advocate Md. Ashraf-uz-Zaman Khan and Advocate Md. Rezaul Haque for the Appellant. Golam Kibria, Deputy Attorney-General with Md Ferozur Rahman, Assistant Attorney-General for the State.