Niranjan Das @ Niru Das @ Mahanto vs The State Of West Bengal

NIRANJAN DAS @ NIRU DAS @ MAHANTO ... APPELLANT(S)

VS.

THE STATE OF WEST BENGAL ... RESPONDENT(S)

J U D G M E N T

ABHAY S.OKA, J.

Leave granted.

2. Heard the learned counsel appearing for the

appellant and the learned senior counsel appearing for

the respondent-State.

3. The present appellant-Niranjan Das was Accused No.2

before the Trial Court. He was convicted by the Trial

Court for the offence punishable under Section 302 of the

Indian Penal Code (IPC). The Trial Court convicted the

appellant as well as the Accused No.1-Subodh Rajbanshi.

It is pertinent to note that both of them were convicted

Criminal Appeal @ SLP(Crl.)Nos.6854-6855 of 2023 Page 1 of 6 simplicitor under Section 302 of the IPC and Section 34

IPC was not applied.

4. Separate appeals were preferred by both the

accused. The appeals were heard on 12th May, 2022. In

the impugned judgment delivered on the same day, it is

recorded in the judgment that on the day on which these

appeals were heard, the present appellant-Niranjan Das

was not represented by any advocate. Therefore, the

Division Bench which heard the appeals appointed an

empaneled advocate to espouse the cause of the appellant.

The High Court directed the Secretary of the High Court

Legal Services Authority to regularise the appointment of

the said advocate. It appears that after appointing the

advocate, the Court did not grant time to the advocate to

prepare herself. In the impugned judgment, it is

recorded that the advocate appointed to espouse the cause

of the appellant adopted the arguments made by the

advocate for the co-accused in the other appeal. Another

argument made by the said advocate has been recorded that

it cannot be said that the present appellant shared

common intention with the co-accused to commit the

murder.

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5. The learned counsel appearing for the respondent

states that looking to the submissions of the advocate

recorded in the impugned judgment, obviously, the

advocate was ready to argue.

6. This was a case where the appellant was convicted

for the offence punishable under Section 302 of the IPC

and was sentenced to undergo life imprisonment.

Therefore, it was a duty of the Court to give a

reasonable time to the advocate appointed to go through

the file and get ready to assist the Court. Apart from

adopting the submissions made by the co-accused, it

appears that the advocate appointed to espouse the cause

of the appellant made a submission that the appellant did

not share common intention to commit the murder with the

co-accused. The very fact that such submission is made

shows that the advocate was not ready with the matter, as

there was no conviction of the appellant with the aid of

Section 34 of the IPC. Obviously, the advocate was not

aware that Section 34 of the IPC was not invoked by the

Trial Court and therefore, she has argued as if the

appellant was convicted with the aid of Section 34 of the

IPC. This happened obviously because the appointed

advocate was not given time to prepare herself. There

were 20 prosecution witnesses in this case.

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7. The object of appointing an advocate to espouse the

cause of the appellant who was unrepresented was to

ensure that justice is done to him. The High Court

decided the appeal on the same day on which the advocate

was appointed. In this case, the advocate appointed to

represent accused was not granted even a reasonable time

to prepare herself. Therefore, the impugned judgment

insofar as relates to the appeal preferred by the

appellant-Niranjan Das is concerned will have to be set

aside and the appeal will have to be remanded to the High

court.

8. The learned counsel appearing for the appellant, on

instructions, states that the appellant will engage his

own advocate and therefore, it is not necessary for the

High Court Legal Services Committee to appoint any

advocate to espouse his cause.

9. Hence, we set aside the impugned judgment dated 12th

May, 2022 confined to Criminal Appeal No.325 of 2008

filed by the appellant-Niranjan Das and remand the said

appeal to the High Court for fresh consideration.

10. We make it clear that the impugned judgment insofar

as it relates to Criminal Appeal No.642 of 2008 preferred

by Subodh Rajbanshi, is not disturbed.

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11. The appellant has already undergone incarceration

for a period of more than eight years.

12. Therefore, he deserves to be enlarged on bail on

appropriate terms and conditions, as may be decided by

the Trial Court.

13. We, accordingly, direct that the appellant-Niranjan

Das shall be produced before the Trial Court within a

period of one week from today so that the Trial Court can

enlarge the appellant-Niranjan Das on bail, pending the

final disposal of the Criminal Appeal before the High

Court.

14. We direct that the advocate appointed by the

appellant shall appear before the roster Bench on Monday,

the 20th November, 2023 in the morning session so that the

Bench can fix the appropriate date for hearing. Even the

counsel for the State shall also remain present on that

day.

15. The appeals are partly allowed on the above terms.

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16. The Trial Court record sent to this shall be

transmitted back to the High Court.

..........................J. (ABHAY S.OKA)

..........................J. (PANKAJ MITHAL)

NEW DELHI;

August 29, 2023.

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