- In the case of Somashekara @Soma vs. State of Karnataka the Hon’ble Karnataka HC has held that in case the advocate representing the accused who is in custody fails to appear before the Court, then the trial Court is obligated to appoint a legal aid advocate to defend the accused.
- In the instant case, the accused had committed penetrative sexual assault on the victim who was 14 years old. The complaint was filed by the brother of the victim. During trial, the Counsel for the appellant (accused) failed to cross-examine the material witnesses.
- After hearing the other witnesses and going through the material on record, the Trial Court had convicted the accused. The reasoning given by the trial court was that since the testimony of the material witnesses had not been controverted, the charges against the appellant were proved. Also, the accused and his counsel did not do the needful examinations despite being given an opportunity and hence, in view of section 33(5) of the POCSO Act, the Court was bound to reject the application for further adjournment for cross-examination of the material witnesses.
- It is important to note here that section 33(5) of the POCSO Act states that the Court has to make sure that the victim child is not brought to the Court repeatedly to testify. It was in light of this provision that the trial Court felt that it was bound to reject the application of the accused requesting further adjournments.
- In appeal, the appellant/accused pleaded that he was in custody and on his counsel abandoning him, he was not given legal aid. It was pleaded that this led to the violation of his fundamental rights guaranteed in Article 21, 22 and 39A of the Constitution.
- The Hon’ble HC observed that article 13(2) of the Constitution clearly states that the State shall not make any law which takes away any of the Fundamental rights guaranteed by Part III of the Constitution. Hence, the two provisions, namely article 13(2) and section 33(5) of POCSO have to be interpreted harmoniously so as to give effect to both. The current interpretation that was done by the trial Court ran contrary to the spirit of the Constitution.
- To strike harmony between the two laws, the HC held that when the Counsel for the accused failed to appear, the Trial Court was bound to provide him free legal aid at the State’s expense. The same right has also been granted to the accused by section 304 of CrPC. The HC observed that it was mandatory for the trial Court to refer the matter to the District Legal Services Authority for providing the accused/appellant with free legal aid.
- Thus, the appeal was allowed and the HC set the conviction under sections 376, 506, 323 of IPC and section 5 read with section 6 of POCSO aside. The trial Court was directed to recall the witnesses under 311 CrPC for further cross examination and then to examine the accused under section 313 CrPC
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