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October 5, 2003 

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Conviction under section 302 of Penal Code without right to defend is illegal

High Court Division (Criminal Jurisdiction)
The Supreme Court of Bangladesh
Criminal Appeal No. 2388 of 1997
Babu Khan
The State
Before Mr. Justice Mr. Amirul Kabir Chowdhury and Mr. Justice AFM Ali Asgar
Date of Judgement: June 30, 2003-08-22
Result: Appeal allowed

Amirul Kabir Chowdhury, J: At the instance of the accused appellant Babu Khan this appeal has been directed against judgement and order dated 28.01.1986 passed by the learned Sessions Judge, Rajbari in Sessions Case No. 75 of 1985 convicting the accused appellant under section 302 of the Penal Code and sentencing him thereunder to imprisonment for life.

Fact in brief

Prosecution case in brief is that on 20-9-1984 at night accused appellant Babu Khan entered the house of one Alauddin Khan and while it was detected he along with his wife caught hold of accused Babu Khan and then Babu Khan assaulted them indiscriminately with dagger and fled away. Jarina. Khatun wife of Alauddin Khan could recognise Babu Khan in the light of Kupi bati and the victims Alauddin Khan and his wife were taken to hospital for treatment. Alauddin Khan on 22-9-1984 succumbed to the injuries. Abdur Rajjak neighbour of the victims lodged the First Information Report (FIR) on 21-9-1984. After investigation the Police submitted charge against Khan on 29-11-1984 under section 380/5/11/459/326/302 of the Penal Code and that the case thereafter was sent to the Court of Sessions for trial. The learned Sessions Judge on 7-1-1986 framed charge against the accused appellant under section 302/326 of the Penal Code in his absence and by the impugned judgement and order convicted the appellant as already mentioned above. Hence is this appeal.


In support of the appeal the learned Advocate for the accused appellant has taken us through the order sheets of the Court below and also the impugned judgement. He submits that accused appellant has been charged and tried under sections 302/326 of the Penal Code and has been accordingly convicted under section 302 of the Penal Code. As the accused admittedly being in absconded he ought to have been defended by a lawyer at the cost of the State under Chapter XII of the Legal Remembrance Manual. Since there being no such appointment of any lawyer the trial from the beginning the trial has been absolutely illegal and hence the impugned judgement and order cannot sustain in the eye of law. He further submits that the accused appellant was not aware of the proceeding or of the impugned judgement and that being arrested on 29-4-1995 he came to know of the judgement for the first time and hence got the appeal filed. The learned Advocate further submits that there is not cogent evidence to warrant conviction against the accused appellant and as such the appeal may be allowed acquitting the accused appellant.

Mr Golam Kibria, the learned Deputy Attorney General was candid enough to submit that every accused charged under section 302 of the Penal Code punishable with death has got right to be defended by a lawyer. The absconding accused should not deprive of such chance to be represented by lawyer. And in this vice of the matter the learned Deputy Attorney General finds it difficult to support the impugned judgement and order since from the record it is apparent that the accused was not represented by any lawyer at any stage of the trial.

We have considered the submissions made at the Bar and perused the materials on record. Rule I of Chapter XII of the Legal Remembrancers' Manual, 1960 reads as follows:

"Pauper accused punishable with capital sentence to be given legal assistance. Every person charged with committing an offence punishable with death shall have legal assistance at his trial and the Court should provide advocate or pleaders for the defence unless they certify that the accused can afford to do so."

In this connection we may also quote section 340 of the Code of Criminal Procedure which runs as follows:

"340-(1) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."

Thus under section 340 of the Code of Criminal Procedure and Article 33 of our Construction the right to consult and to be defended by a legal practitioner has been guaranteed.

In this connection the decision in the case of State Vs. Imdad Ali Bepary in 36 DLR (HCD) 333 may be referred to wherein their Lordships held.

"In this case it appears that no lawyer on behalf of the accused was present in Court below, before proceeding with the case ought to have appointed an Advocate to defend the accused. In that view of the said illegality the conviction and sentence of the condemned prisoner under section 302 is not maintainable and therefore set aside. And the case is sent back for re-trial to the court below after appointing an Advocate to represent the accused and give him chance to cross-examine the witnesses adduced in the case."

In agreement with the principles of law laid down above and in consonance with section 340 of the Code of Criminal Procedure, and Rule I of Chapter XII of the Legal Remembrance's Manual we hold that right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code, being punishable with death, is, an inalienable right guaranteed in the law of our land and if any trial takes place in refusing such fundamental right the trial is a misnomer and the judgement passed in such trial convicting an accused is no judgement in the eye of law.


On perusal of Order No. 1 dated 12.11.1985 and Order No. 4 dated 7.1.1986 it appears that the learned Sessions Judge himself found that the accused was absconding and by Order No. 4 he framed charge against the absconding accused under section302/326 of the Penal Code. Section 302 of the Penal Code prescribes capital punishment and as such we are of the view that it was the duty of the learned Sessions Judge to take step or himself appoint a competent Advocate to represent the absconding accused. Failure of the learned Judge to make such appointment and arrange defence of the accused through a lawyer has vitiated the entire trial and as such the impugned judgement and order complained of couldn't be maintainable.

It is unfortunate that a senior Judge, in the instant case, a Sessions Judge convicted the appellant under section 302 of the Penal Code being oblivious to such clearly settled law.

In view of our discussion made above we find substance in the submission made by the learned Advocate appearing for the appellant. Since we decide to send the case on remand for fresh trial according to law we do not like to make any comment at this stage as to merits of the case. On the reasoning aforesaid the appeal succeeds.

The appeal is allowed.

Mr. MD. Ashraf-uz- Zaman Khan with Mr. Md. Rezaul Haque, for the appellant and Mr. Golam Kabria, DAG with Mr. Md. Ferozur Rahman, AAG for the State.


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