DAKSHINAMOORTHY Vs. UNION OF TERRITORY OF PONDICHERRY

JUDGEMENT

(1.) The petitioners are accused in S.C. No. 3 of 1999 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Pondicherry and they seek for setting aside the order passed in Cri. M. P. No. 368 of 2001 in S.C. No. 3 of 1999, dated 10-12-2001 on his file.

(2.) Briefly, the facts stated in the petition are as follows. The petitioners are charged for the offences under Sections 148, 341, 447, 448, 427, 307 and 302 read with Section 149 of Criminal Penal Code in S.C. No. 3 of 1999 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Pondhichery. The respondent had examined 40 witnesses and the evidence was closed and the case was posted for further proceeding under Section 313 of Criminal Procedure Code on 20-11-2001. The questions were not ready on that day and the petitioners, on the same day, filed a memo in Cri. M.P. No. 368 of 2001 praying for furnishing with all the circumstances that appear in the evidence against them in order to enable them to give their explanation upon legal consultation and advice of their counsel on the next hearing date. The petitioners contended that they have fundamental right of legal advice and assistance as per Article 22(1) of the Constitution of India and that right begins to flow from the moment a person is arrested and it would continue till the pronouncement of the judgment and at the time of questioning under Section 313 of Cr.P.C., the right of legal advice of consultation will not be suspended temporarily and thereafter be revived. The questionnaire, containing the circumstances that appear to be against them, should be furnished to them in advance to make an effective explanation as to how those circumstances cannot be against them. Section 313 of Cr.P.C. does not contemplated that an accused should offer his explanation on the day fixed for it and that he is not entitled to any reasonable opportunity for reflection of mind and in such circumstances, the petitioners cannot be compelled to answer immediately and they have to be given a reasonable opportunity for their reflection of mind in consultancy and advice of their counsel.

(3.) The point for determination is whether the order of the trial Court deserves to be set aside for the contentions raised by the petitioners.