Subrata Dutta Roy vs Seema Saha & Another

Arindam Sinha, J

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.

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 Vs. 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.

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:

"12. 8/11/17

Case record is put up today. Accused Subrata Dutta Roy surrenders before the Court and taken into custody. Ld. Advocate Mr. Sudarsan Biswas files vakalatnama on behalf of the accused and files a petition praying to enlarge him on bail. Complainant's counsel raises strong objection. Heard both sides. Considered. Prayer for bail is allowed."

He submits, perusal of judgements of trial Court as well as in criminal appeal, will not disclose any ingredient to infer failure of justice. Applicant was represented throughout. Accused was aware of charge brought against him. Allegation in this application, being one of fact, was never urged by accused, neither before trial Court nor in appeal, though he was all along represented by subsequently appointed different learned advocate. He submits, this is a mischievous application, filed with oblique motive in abuse of process of Court and should be dismissed with exemplary costs. Mr. Mandal, learned senior advocate appears on behalf of State, made proforma respondent, and submits, there was not a whisper made by applicant, in duly conducted trial and thereafter appeal, of any prejudice suffered by reason of learned advocate of complainant having had accepted vakalatnama from him, filed bail bond and adjournment petition. It appears to be a mistake on his part, on discovery of which said learned advocate no longer appeared nor took step for applicant. This discovery was prior to commencement of trial.

Case made out by applicant is one based on fact. It was known to applicant, at least before commencement of trial, said learned advocate who was prosecuting the complaint, had accepted vakalatnama from him. Order no. 12 of trial Court, was made at a later point of time from acceptance of vakalatnama of applicant but before commencement of trial. Said order records applicant's learned advocate, being some other than concerned learned advocate, had filed vakalatnama. It is not disputed that thereafter Mr. Sudersan Biswas, learned advocate took steps on behalf of applicant, defended him at trial and then pressed the appeal. Applicant is presumed to have mentioned the fact to his defence counsel but it was not urged either at trial or in appeal. This position is undisputed.

In context of above position it is to be seen whether Rattiram (supra) is in aid of applicant. In that case failure of justice was urged by Rattiram because there was omission of committal of case under applicable provision in Code of Criminal Procedure, 1973. Supreme Court in paragraph 63 of the judgement said as follows:-

"63. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice."

In following approach to adjudication adopted by Supreme Court in that case, it is found that right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused. In view of what has been said above, applicant has failed to satisfy. As such, this application is found to be without merit and same is dismissed. The Criminal Revision petition is also dismissed.