# Harveer v. State of U.P

- **Citation:** (2009) 3 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-30
- **Case number:** Criminal Capital Appeal No. 4696 of 2008
- **Bench:** Imtiyaz Murtaza, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harveer-v-state-of-u-p-41563
- **Pages:** 7

## Headnote

Sri D.R. Chaudhary
Sri Arunendra Singh
Sri M.S. Yadav
Sri V.K. Mishra
A.G.A.

Code of Criminal Procedure Section 304Criminal Trail concluded-all prosecution
witnesses
examined-Amicus
curiae
appointed on belated stage-application
to
cross
examine
the
prosecution
witness
rejected-held-Trail
Court
committed great illegality conviction set
a side with direction to examine and
cross examine all witness.

Held: Para 15

The crux that boils down from the
discussion of the aforesaid decisions is
that the court is under a duty to ensure
that
accused
person
before
it
is
represented or not and whether he
requires the services of a lawyer from
State through Legal Aid Scheme on
account of his indigent conditions or
3 All] Harveer V. State of U.P.
915
otherwise and should take up the matter
as prefatory to further proceeding in the
trial. We have scanned the entire record
and there is nothing on record that the
trial court ever addressed itself to this
issue and after all the witnesses were
examined in the case, he passed the
orders appointing the lawyer that too
pursuant to a request from the accused
Harveer and played down the right of the
accused by stating that all the witnesses
were examined in the presence of the
accused. In our considered view, the trial
court proceeded perfunctorily unmindful
of the fact that the right of the accused
was further impinged upon seriously
when the trial court rejected the request
of the lawyer assigned to accused at a
belated stage for recall of certain ocular
witnesses for cross examination.
Case law discussed:
1994 Supp (3) SCC 321, 1981 SCC (Crl. 228,
1986 SCC (Crl.) 166, (1986) 2 SCC 401.

## Text

914 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
assessment order has been passed after the
order
dated
30.4.2008.
In
the
circumstances, I am of the view that the
objection of the petitioners requires to be
considered by the Secretary, Mandi
Samiti and on a consideration of the said
objection, the final assessment order to be
passed. In this view of the matter without
going into the controversy whether the
petitioners have filed objection or not, the
petitioners are directed to file a fresh
objection within a period of one month
and the Secretary, Mandi Samiti is
directed to decide the objection and pass
the final assessment order.

16. Before parting, I would say that
it is unfortunate that despite the direction
given by the Apex Court and two
Division Benches of this Court, referred
to hereinabove, the machinery provisions
have not been provided in the Act like the
other
taxing
statutes.
In
the
circumstances,
State
Government
is
directed to take appropriate steps within a
period of three months to provide
machinery provisions in the Act for the
assessment,
collection,
recovery,
reassessment etc.

In the result, the writ petitions are
allowed. The impugned order dated
20.9.2008 passed by the revisional
authority is set aside. The petitioners are
directed to file objection within a period
of 30 days to the order dated 30.4.2008
and the Secretary, Mandi Samiti is
directed to pass the final assessment order
after considering the objection of the
petitioners
in
accordance
to
law
expeditiously.

Copy of this order be provided to
learned Standing Counsel within 10 days
to
serve
the
Principal
Secretary,
Agricultural Product, Lucknow, U.P. for
the compliance of aforesaid directions.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.10.2009

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE K.N. PANDEY, J.

Criminal Capital Appeal No. 4696 of 2008
Reference No. 7 of 2008

Harveer

...Appellant
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellant:
Sri D.K. Tyagi
Sri Abhishek Pandey
Amicus Curiae

Counsel for the Opposite Party:
Sri D.R. Chaudhary
Sri Arunendra Singh
Sri M.S. Yadav
Sri V.K. Mishra
A.G.A.

Code of Criminal Procedure Section 304Criminal Trail concluded-all prosecution
witnesses
examined-Amicus
curiae
appointed on belated stage-application
to
cross
examine
the
prosecution
witness
rejected-held-Trail
Court
committed great illegality conviction set
a side with direction to examine and
cross examine all witness.

Held: Para 15

The crux that boils down from the
discussion of the aforesaid decisions is
that the court is under a duty to ensure
that
accused
person
before
it
is
represented or not and whether he
requires the services of a lawyer from
State through Legal Aid Scheme on
account of his indigent conditions or
3 All] Harveer V. State of U.P.
915
otherwise and should take up the matter
as prefatory to further proceeding in the
trial. We have scanned the entire record
and there is nothing on record that the
trial court ever addressed itself to this
issue and after all the witnesses were
examined in the case, he passed the
orders appointing the lawyer that too
pursuant to a request from the accused
Harveer and played down the right of the
accused by stating that all the witnesses
were examined in the presence of the
accused. In our considered view, the trial
court proceeded perfunctorily unmindful
of the fact that the right of the accused
was further impinged upon seriously
when the trial court rejected the request
of the lawyer assigned to accused at a
belated stage for recall of certain ocular
witnesses for cross examination.
Case law discussed:
1994 Supp (3) SCC 321, 1981 SCC (Crl. 228,
1986 SCC (Crl.) 166, (1986) 2 SCC 401.

(Delivered by Hon'ble Imtiyaz Murtaza J.).

1. Present Criminal appeal has its
genesis in impugned judgement and order
dated 5.6.2008 rendered in S.T. No. 108
of 2006 (State v Harveer and another).
The trial of accused in the case
culminated in conviction of the appellant
Harveer under section 302, 324, 120 B
IPC and he was visited with penalty of
death.

2. The appeal aforesaid, it would
appear was admitted by this Court on
24.7.2008. Thereafter, the appeal, it
would appear, was listed on 10.7.2009
and again on 13.7.2009. On 14.7.2009, it
transpired that the appellant was not
represented and therefore, the Court
appointed Sri Raghuraj Kishore Advocate
as Amicus Curiae and directed that the
appellant be informed whether he would
like to be represented by Amicus curiae or
would prefer to engage lawyer of his own
choice. After the compliance report had
been received, the appeal was heard on
merit and judgement was reserved on
8.9.2009.

3. The author of the F.I.R in the case
is one Ghasitu resident of village Nagal
P.S.Chhaprauli Distt Baghpat. The report
submitted to the police is to the effect that
on 5.6.2005 at about 7 a.m, his brother
Harveer had murdered his eldest daughter
namely Km. Brijbala aged about 14 years
by cutting her throat by Khurpi (a flat
bladed tool) and he roamed about around
the village with truncated head. It is
further stated that the village people tried
to catch hold of him but he fled away by
throwing the truncated head near the dead
body. It is also stated that he also left
behind his blood smeared cloths. It is also
stated that the deceased was ailing for the
last three months and it was believed by
the accused that she was possessed by
some evil spirit. At times, she fell
unconscious and at times, she used to
prattle talking nonsense. It is further
stated that she had been murdered on
account of superstition induced by some
sorcerer. It is also stated that the incident
was witnessed by Shimla mother of the
deceased and she also tried to ward off the
blow inflicted on deceased by the
appellant but she was also assaulted and
as a result she suffered injuries on her
hands.

4. The investigation of the case was
taken over by S.I. Indra Pal Singh who
prepared site plan Ex.ka 8, and also
collected blood stained earth and simple
earth Ex. ka. 9. He also recorded
statements of the witnesses. The accused
Peru
was
thereafter
arrested.
Subsequently, the investigation was made
over to S.O. Mehar Singh who arrested
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
accused Harveer and submitted charge
sheet in the court.

5. The prosecution examined P.W. 1
Ghasitu who is author of the F.I.R., P.W.
2 Arvind Kumar, Scriber of the report,
P.W.3 Smt. Shimla, mother of the
deceased and ocular witness, P.W.4,
Rajpal, ocular witness of the occurrence,
P.W. 5 Sukhpal, ocular witness of the
occurrence, P.W. 6 Constable Subhash
Solanki who prepared the G.D. entry,
P.W.
7
Dr.
Krishna
Kumar,
who
conducted post mortem report, P.W. 8 S.I
Gaje Singh who prepared inquest report,
P.W.
9
S.I.Indra
Pal
Singh
first
investigating officer, P.W. 10 S.O.Mehar
Singh Investigating officer who submitted
charge sheet and P.W. 11 Dr. Ramesh
Chandra who examined P.W.3 Smt.
Shimla mother of the deceased.

We have heard Sri Raghuraj Kishore
Amicus curiae, Sri D.R. Chaudhary G.A
and Sri Arunendra Singh and Sri M.S.
Yadav, A.G.A for the State.

6. To begin with, learned counsel
advanced an argument having complexion
of preliminary argument stating that the
appellant was considerably prejudiced as
he was unrepresented by any counsel
during the trial of the matter. The learned
counsel in order to prop up his argument,
drew attention to statute and substantially
argued that the conviction of the accused
has been recorded without appointing
counsel for the accused under the legal
aid scheme was not represented by a
pleader and it was amply clear to the court
below that the accused was not possessed
of sufficient means to engage a pleader.

7. The appointment of a counsel
under the Legal Aid Scheme is meant to
avoid or prevent miscarriage of justice
and a conviction on the basis of a plea of
guilty by an accused person who did not
understand the law. However, it is settled
in law that where the accused has pleaded
guilty or where the facts which constitute
the offence are unmistakably admitted,
there would be no miscarriage of justice
and the conviction would not be vitiated.

8. We have scrutinised the record
vis-a-vis the submission of the learned
counsel for the appellant. From a scrutiny
of the order sheet it would appear that on
12.5.2008, D.W. 1 was examined and
Harveer accused stated in the court that he
was incarcerated in jail and has not been
assigned any lawyer to defend him and
the same day, the trial court directed to
assign amicus curiae out of enlisted
lawyers. On 29.5.2008, Sri Ram Kumar
Tomar was appointed as amicus curia. On
31.5.2008, the amicus curiae appointed by
the trial court made an application
quintessentially stating therein to recall
P.W.3 whose statement was recorded on
13.11.2007 and 8.1.2008. However, the
trial court disallowed the application on
the premises that the statement of aforestated was recorded in the presence of the
accused and that the learned counsel did
not press into service any point of pivotal
significance on which the witness should
be recalled for cross examination. We
have also gone over the testimonies of
witnesses examined by the prosecution
and there is nothing discernible anywhere
in the entire statement that accused
Harveer was afforded opportunity to cross
examine any of the witnesses relied upon
by the prosecution. We have also gone the
statements and it leaves no manner of
doubt
that
if
there
is
any
cross
examination, it is of accused Peru who
has since been purged of the charges and
3 All] Harveer V. State of U.P.
917
has been granted clean acquittal by the
court below. It is thus amply clear that all
the witnesses had already been examined
before the amicus curiae could be
assigned
to
accused
Harveer
for
defending him. To be precise, P.W. 1
Ghasitu
was
examined
and
cross
examined by the accused Pheru on
21.8.2006, P.W. Arvind Kumar was
examined on 5.8.2005, P.W. 3 Smt.
Shimla, mother of the deceased was
examined and cross examined by accused
Pheru on 13.11.2007 and again on
8.1.2008, P.W. 4 was examined and cross
examined by accused Pheru on 14.2.2008,
P.W. 5 Sukhpal was examined and cross
examined by accused Pheru on 14.2.2008,
P.W. 6 examined and cross examined by
accused Pheru on 27.2.2008, P.W. 7 was
examined and cross examined by accused
Pheru on 12.3.2008, P.W. 8 S.I. Gaje
Singh was examined and cross examined
by accused Pheru on 26.3.2008, P.W. 9
S.I.Indra Pal Singh was examined and
cross examined by accused Pheru on
10.4.2008, P.W. 10 was examined and
cross examined by accused Pheru on
1.5.2008 and lastly, P.W. 11, Dr. Ramesh
Chandra
was
examined
and
cross
examined on behalf of accused Pheru on
1.5.2008. As stated supra, the accused
moved an application for assigning
lawyer on 12.5.2008 and on 31.5.2008,
amicus curiae was appointed.

9. Right to make cross examination
means right to cross examine through a
lawyer of accused's choice. This right has
to be read in the backdrop of Article 22 of
the Constitution of India. The doctrine
audi alteram partem has to come into play
which means that no man should be
condemned unheard. A part of this
doctrine is that if any reliance is placed on
evidence or record against a person then
that evidence or record must be placed
before him for his information, comment
and criticism. It is all that is meant by the
doctrine of audi alteram partem. It is well
enunciated that formal cross examination
is procedural justice and it is governed by
rules of evidence. It is the creation of
courts and of legal and statutory justice.
The aforesaid doctrine certain includes
that any statement of a person before it is
accepted against somebody else that
somebody
else
should
have
an
opportunity of meeting it whether by way
of interrogation or by way of comment.
So far as that somebody else has had a
fair and reasonable opportunity to see,
comment and criticise the evidence, the
tests of doctrine aforesaid stands satisfied.

10. There is nothing on record to
suggest that it was a case in which
counsel
appearing
for
the
accused
declined to cross examine the witnesses.
Every noon and corner of the record gives
manifestation of the fact that the accused
Harveer
Singh
was
not
properly
represented by the counsel and therefore,
the conclusion is irresistible that he was
prejudiced in his defence and entire trial
therefore stands vitiated.

11. Yet another aspect to be
reckoned with is whether it would suffice
if the testimonies are recorded in the
presence of an accused who is unaided by
the services of a counsel. Section 304
Cr.P.C clearly envisages that 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. We would not make an idle
parade of learning by citing decisions on
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the point which it would suffice to say are
legion. The crux of various decision is
that the entitlement to free legal aid is not
dependent on the accused making an
application to that effect and the court is
obliged to inform the accused of his right
to obtain free legal aid. We may revert to
the facts of the case. As stated supra, it is
quite clear that only co accused pheru was
represented and appellant Harveer was
unrepresented till the last witness was
examined in the case. The learned
Sessions Judge tried to explain away the
matter by stating that the statements of the
witnesses were recorded in the presence
of the accused Harveer.

12. Few of the decisions shedding
light on the aspect under discussion may
be noticed. The ex-cathedra decisions are
Tyron Nazareth v. State of Goa 1994
Supp (3) SCC 321, Khatri (11) v. State of
Bihar 1981 SCC (Crl. 228 and Sukh Das
v. Union Territory of Arunachal Pradesh
1986 SCC (Crl.) 166. The aforesaid
aspect of providing legal aid to the
accused was also considered by the Apex
Court
in
Tyron
Nazareth
(supra)
emanating from a decision of Bombay
High Court in which the Court noticed
with approval the decision of the Apex
Court in Sukh Das (supra) and also Khatri
II's case (supra). The Apex Court in the
said decision held as under:

"We have also perused the decisions
of this Court in Khatrai (II) v. State of
Bihar and Sukh Das v. Union Territory of
Arunachal Pradesh. We find that the
appellant was not assisted by any lawyer
and perhaps he was not aware of the fact
that the minimum sentence provided
under the statute was 10 years rigorous
imprisonment and a fine of Rs. 1 lakh. We
are, therefore, of the opinion that in the
circumstances, the matter should go back
to the tribunal. The appellant if not
represented by a lawyer may make a
request to the court to provide him with a
lawyer under section 304 of the Criminal
Procedure Code or under any other legal
aid scheme and the court may proceed
with the trial afresh after recording a plea
on the charges. The appeal is allowed
accordingly. The order of conviction and
sentence passed by the Special court and
confirmed by the High Court are set aside
and de novo trial is ordered hereby."

13. The ex-cathedra decision on the
point is Khatrai v. State of Bihar
(supra) in which the Apex Court
substantially held that free legal services
to an indigent accused does not arise only
when the trial commences but also
attaches when the accused for the first
time is produced before the Magistrate.
The Apex Court also relied upon in this
decision the decision of the Apex Court in
Hussainara Khatoon's case (AIR 1979 SC
1369) in which the right to free legal
services was held to be an essential
ingredient of reasonable, fair and just
procedure for a person accused of an
offence and also held implicit in the
guarantee of Article 21 of the Constitution
of India. The relevant paragraphs being 4
and 5 are quoted as under:

"The right to free legal services is
clearly
an
essential
ingredient
of
reasonable, fair and just procedure for a
person accused of an offence and it is
implicit in the guarantee of Article 21.
The State Government cannot avoid its
constitutional obligation to provide free
legal services to a poor accused by
pleading
financial
or
administrative
inability.
The
State
is
under
a
constitutional mandate to provide free
3 All] Harveer V. State of U.P.
919
legal aid to an accused person who is
unable to secure legal services on account
indigence and whatever is necessary for
this purpose has to be done by the State.
AIR 1979 SC 1369, Foll.
(Para 4)

Moreover, this constitutional obligation
to provide free legal services to an
indigent accused does not arise only when
the trial commences but also attaches
when the accused is for the first time
produced before the magistrate. That is
the stage at which an accused person
needs
competent
legal
advice
and
representation and no procedure can be
said to be reasonable fair and just which
denies legal advice and representation to
him at this stage. (Para 4)

The Magistrate or the Sessions Judge
before whom the accused appears, is
under an obligation to inform the accused
that if he is unable to engage the services
of a lawyer on account of poverty or
indigence, he is entitled to obtain free
legal services at the cost of the State.
Necessary directions to Magistrates,
Sessions
Judges
and
the
State
Government with guidelines given."

14. Another decision on the point is
Suk Das v. Union Territory of Arunachal
Pradesh (1986) 2 SCC 401. The aforesaid
decision has carried the dictum of Khatri's
case (supra) a step further and it is clearly
laid down that unless refused, failure to
provide free legal aid to such accused
person would vitiate their trial, entailing
setting aside of the conviction and
sentence against them. In para 5, the
substance of what has been held is that
free legal assistance at state cost is a
fundamental right of a person accused of
an offence which may involve jeopardy to
his life or personal liberty and this
fundamental right is implicit in the
requirement of reasonable, fair and just
procedure prescribed by Article 21. Again
the Apex Court held that the exercise of
this fundamental right is not conditional
upon the accused apply for free legal aid
and hence cannot be denied if the accused
failed to apply for it. Illiteracy, poverty
and ignorance of rights and entitlements
under the law abounds leading to
deception, exploitation and deprivation of
rights and benefits under the law. It would
be a mockery of the legal aid programme
if it were to be left to the poor, ignorant
and illiterate accused to ask for free legal
services. In the aforesaid case, the Apex
Court set aside the conviction and
sentence observing that the result of our
quashing the conviction of the appellant
would be that the appellant would have to
be tried again in accordance with law
after providing free legal assistance to
him at State cost and that would mean that
the appellant would continue to be
exposed to the risk of conviction and
imprisonment and the possibility cannot
be ruled out that the offence charged may
ultimately be proved against him and he
might land up in jail..........". However, in
the peculiar facts and circumstances of
that case, the Apex Court prohibited trial
afresh and reinstated the appellant in
service but without back wages. It would
appear that offence for which the
appellant was tried was under section 506
read with section 34 of the IPC on the
allegation that the appellant and others
threatened Asstt Engineer C.P.W.D with a
view to compelling him to cancel the
transfer orders which had been passed
against him.

15. The crux that boils down from
the discussion of the aforesaid decisions is
that the court is under a duty to ensure
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
that
accused
person
before
it
is
represented or not and whether he
requires the services of a lawyer from
State through Legal Aid Scheme on
account of his indigent conditions or
otherwise and should take up the matter
as prefatory to further proceeding in the
trial. We have scanned the entire record
and there is nothing on record that the
trial court ever addressed itself to this
issue and after all the witnesses were
examined in the case, he passed the orders
appointing the lawyer that too pursuant to
a request from the accused Harveer and
played down the right of the accused by
stating that all the witnesses were
examined in the presence of the accused.
In our considered view, the trial court
proceeded perfunctorily unmindful of the
fact that the right of the accused was
further impinged upon seriously when the
trial court rejected the request of the
lawyer assigned to accused at a belated
stage for recall of certain ocular witnesses
for cross examination.

16. In view of the above, the
conviction and sentences recorded against
the appellant are set aside and the matter
is remanded to the trial court for trial de
novo. It needs hardly be said that the
witnesses
would
be
recalled
and
examined and cross examined formally in
the spirit of procedural justice. The trial
court, it is expected, would proceed
expeditiously and take the matter to
finality within a period not exceeding six
months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2009

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.49192 of 2009

Vijay Chand

...Defendant
Versus
Baijnath Prasad Gupta and others

...Plaintiffs

Counsel for the Petition:
Sri Syed Wajid Ali

Counsel for the Respondents:
Sri B.K. Tripathi
Sri Salil Kumar Rai

Judge Small Cause Court Act-Section 23Return of Plaint-Suit for ejectment on
ground of arrears of rent-tenant not
deposited any amount on first date of
hearing-denied the title of land lord
itself-on basis of will which was never
acted
upon-held-finding
regarding
default
in
rent-recorded
by
Courts
below-need no interference ejectment.

Held: Para 20

In view of the aforesaid fact, in my
opinion, the findings recorded by the
Courts below are finding of fact, no
interference is required by this Court
while exercising the power under Article
226 of the Constitution of India. The writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.
Case law discussed:
1988, A.W.C 1057, 1998 (3) A.W.C 1616,
2003, AWC 1195, 1991 ALJ 1065, 2000 (42)
ALR 171.

(Delivered by Hon'ble Shishir Kumar, J.)

1. Heard Syed Wajid Ali, learned
counsel for the petitioner and Sri Salil