Whether court can record finding that counsel appointed by accused was incompetent without hearing said counsel?

No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;
Reportable

Supreme Court of India

Ag vs Shiv Kumar Yadav And Anr on 10 September, 2015

Citation;AIR 2015 SC 3501,2015 CRLJ 4640 SC

Print Page

Duty of court when fair trial to accused is denied due to incompetency of his counsel

During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.398 OF 1998
Anantram @ Moru s/o. Babulal Bawankar,
V
The State of Maharashtra,

CORAM : M.L. TAHALIYANI, J.
DATED : 17th JULY , 2014.
Citation;2015 ALLMR(CRI)975

Print Page