SUBRATA DUTTA ROY Vs. SEEMA SAHA

JUDGEMENT

(1.) This application (criminal) is by accused in CR 110 of 2016. The case was tried and accused pronounced guilty. There was sentence against accused. Accused preferred Criminal Appeal 3 of 2019 against judgement of conviction dated 24th August, 2018. The appeal was dealt with by judgement dated 8th August, 2019. Mr. Halder, learned advocate appears on behalf of applicant and submits, there be trial de novo since learned advocate who prosecuted the case on behalf of complainant, also accepted vakalatnama from his client, the accused. He demonstrates from pages 25 and 28 to 32, concerned learned advocate was prosecuting counsel, who had subsequently accepted vakalatnama executed by his client, filed bail bond and adjournment petition.

(2.) He submits, entire order sheet of trial Court has been disclosed, for demonstration that there is no record in it of said learned advocate having retired from acting on behalf of applicant. It is a case where his client's conviction has been upheld. His client was obviously prejudiced and as such execution of the sentence would deprive his client of life and personal liberty on procedure illegal. There would thus be violation of his client's fundamental right guaranteed under article 21 of the Constitution of India. He relies on judgement of Supreme Court in Rattiram v. State of Madhya Pradesh reported in (2012) 4 SCC 516, to paragraphs 39, 42, 44 and 45. He submits, there has been failure of justice. His client is not asking for acquittal but de novo trial. The application be allowed on merits of it.

(3.) Mr. Prasanth, learned advocate appears on behalf of respondent no. 1/complainant. He draws attention to order no. 12 recorded by trial Court. Part of it is reproduced below: