MOHANLAL Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner/accused was convicted by J. M. F. C. Indore on 29-4-99 in Criminal Case No. 2756/98 for offence under Sections 468 and 420, IPC, and sentenced to three years R. I. and to pay fine also. The petitioner filed Criminal Appeal No. 114/99, against the judgment and Order passed by the J. M. F. C. The petitioner made an application under Sections 311 and 391, Cr. P. C. praying that due to his poor financial condition he could not engage a lawyer in trial Court, therefore, three prosecution witnesses Gopal Solanki (P. W. 2), Shrikrishan (P. W. 5) and Mahendra Bai (P. W. 9), who were important witnesses, and could not be cross-examined by the petitioner be ordered to be summoned for cross-examination. The learned Appellate Judge dismissed this application observing that if the appellant was suffering from poverty and was not in a position to engage a lawyer, he could pray to the trial Judge to provide him an Advocate at the State cost and as he did not make an application in this regard, now his prayer for resummoning witnesses cannot be allowed at the Appellate stage and permission for cross-examination of the above witnesses cannot be given and rejected the application. Hence this petition under Section 482 Cr. P. C.

(2.) FROM the perusal of the impugned Order it is clear that the learned A. S. J. committed grave error and illegality in dismissing the application. It is unfortunate that the learned Appellate Judge instead of correcting the illegality committed by the Trial Judge is not informing the petitioner of his legal right of being provided legal aid at State cost fell in error and committed further illegality in dismissing the application. It must be remembered that every accused has a fundamental right under Article 21 of Constitution of India to obtain lawyer at the State cost in Criminal Trial, if he is not in a position to engage a lawyer. Their Lordships of the Supreme Court in case of Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1369), held :

(3.) THEIR Lordships of the Supreme Court in case of Suk Das v. Union Territory of Arunachal Pradesh (AIR 1986 SC 991) considered the situation where the accused did not pray the Trial Judge to provide him an advocate at State cost and observed :