REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1091  OF 2006

Mohd. Hussain @ Julfikar Ali     ………….. Appellant

versus

The State (Govt. of NCT) Delhi          .................Respondent

J U D G M E N T

H. L. Dattu, J.

1) A convict, who is facing the threat of death gallows, is before  

us in this appeal.  He is an illiterate foreign national and unable  

to engage a counsel to defend himself.  He is tried, convicted  

and sentenced to death by the Additional Sessions Judge, Delhi  

in  Sessions  Case  No.122  of  1998  dated  03.11.2004  without  

assignment  of  counsel  for  his  defence.   Such  a  result  is  

confirmed by the High Court on a reference made by the Trial  

Court for confirmation of death sentence and has dismissed the  

appeal filed by the appellant vide its order dated 04.08.2006.   

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2) The  convict,  (hereinafter  referred  to  as  “appellant”)  is  charged,  

convicted and sentenced under Sections 302/307 of Indian Penal Code  

(in  short,  “IPC”)  and  also  under  Section  3  of  The  Explosive  

Substances Act, 1908.  The case of the prosecution, as noticed by the  

High Court, which appears to be accurate statement of facts, proceeds  

on these lines :   

“   2. On 30-12-1997 at about 6.20 p.m. one blueline bus   No.DL-IP-3088  carrying  passengers  on  its  route  to   Nangloi from Ajmeri Gate stopped at the Ram Pura Bus  Stand on Rohtak Road for passengers to get down.  The   moment that bus stopped there an explosion took place   inside  the  bus  because  of  which  its  floor  got  ripped  apart.  Four passengers of that bus, namely, Ms. Tapoti,   Taj Mohd. Narain Jha and Rajiv Verma died and twenty   four passengers including the conductor of that bus were   injured due to that explosion.  Two policemen (PWs 41 &   52) were on checking duty at that but stop at the time of   blast.  On their informing the local police station police   team reached the spot.  Crime team and bomb disposal   squad  were  also  called  and  the  damaged  bus  was   inspected and from the spot debris etc. were lifted and  sealed.

3. On the basis of the statement of Head Constable  Suresh (PW-41), who was one of the two policemen on  duty at the bus stop of Rampura, a case under Section  307  IPC  and  Section  3,  4  and  5  of  the  Explosive   Substances  Act  was registered  at  Punjabi  Bagh police   station.  Investigation commenced immediately.  With the   death of some of the injured persons on the day of the   incident itself Section 302 IPC was also added.  Hunt for   the culprits  responsible  for that  macabre incident  also  

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started.  However, for over two months nobody could be  nabbed.

4. It appears that as a result of different incidents of   bomb  blasts  in  Delhi  including  the  present  one  the  intelligence  agencies  became  more  active  and  started  gathering information about the incidents of bomb blasts   in the city. It came to light that some persons belonging   to terrorist organizations were actively operating in the   city of Delhi for causing terror by killing innocent people   and  causing  damage  to  public  property  by  exploding   bombs.   On the  basis  of  secret  information  the  police   raided  some  houses  in  different  parts  of  Delhi  on  27.02.1998 and from those houses  hand grenades and  material used for making bombs was recovered in large   quantity.  The chemicals recovered were sent to CFSL,   which confirmed that the same were potassium chlorate   and sulphuric acid and were opined to be constituents of   low explosives.   Some persons were arrested also and  during interrogation they had disclosed to the police that   they were members of a  terrorist organization and their   aim was to create terror and panic in different parts of   the country by exploding bombs to take revenge for the  killings of innocent  muslims (sic.)  in India and further   that they had come to India for Jehad.  On 27.02.1998   itself the police had registered a case vide FIR No.49 of   1998 under Sections 121/121-A IPC and Sections 3, 4 &  5 of the Explosive Substances Act as well under Section  25 of the Arms Act at Main Delhi Railway Station.  On   the  basis  of  information  provided  by  the  apprehended  terrorists the police made more arrests including that of   one Mohd. Hussain (who now is the appellant before us  in Crl. A. No.41 of 2005 and reference to him will now  onwards be made as ‘the appellant’).  The appellant was   apprehended when his house in Lajpat Nagar was raided   pursuant to the information given by other apprehended  terrorists.   As  per  the  prosecution  case  the  appellant   himself  had opened the door on being knocked by the   police and on seeing the police party he had tried to fire   at the policemen from the pistol which he was having in   

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his  hand  at  that  time  but  could  not  succeed  and  was  apprehended.   His  pistol  was  seized.   It  appears  that   during the interrogation by the police the appellant and  three more persons, namely, Abdul Rehman, Mohd. Ezaz  Ahmed  and  Mohd.  Maqsood  confessed  about  their   involvement in the present incident of bomb blast in the   bus on 30.12.1997.  That information was then passed   over to Punjabi Bagh police station on 18.03.1998 by the   Crime  Branch  and  accordingly  all  these  four  persons   were  formally  arrested  for  the  present  case  also  on  21.3.1998 for which date the investigating officer of the  present  case  had  sought  their  production  in  court  by   getting issued production warrants from the court seized  of  the  above  referred  case  of  FIR  No.49/1998.   The  investigating  officer  moved  an  application  before  the   concerned  court  on  the  same  day  for  holding  of  Test   Identification Parade (TIP) in respect of the appellant in   view  of  the  suspicion  expressed  by  PW-1  Darshan  Kumar,  the conductor  of  the  bus involved in  the blast   regarding one passenger who had boarded his bus  from  Paharganj bus stop along with a rexine bag for going to   Nangloi  but  instead of going upto Nangloi he had got   down from the bus at Karol Bagh leaving his rexine bag  underneath the seat which he had taken and which was  near the seat of the conductor.  The conductor had given  the description of that passenger.  As per the prosecution  case the explosion had taken place below that seat which  that passenger had occupied and underneath which he   had  kept  his  rexine  bag.   Although  on  21-03-98  the  appellant  did  not  object  to  holding  of  identification  parade but he refused to joint test identification parade  which  was  fixed  for  23-03-98  stating  that  police  had   taken his photographs.

5. During  the  investigation  of  the  present  case  the   debris collected from the place of bomb blast and some  damaged  pieces  of  the  bus  etc.  were  sent  to  Central   Forensic  Laboratory  (CFSL)  and  after  examination  it   was  revealed  that  in  the  seized  material  contained   explosive  mixture  of  chlorate,  Nitrate,  Sulphate  and  

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sugar were detected.  Mixture of these chemicals, as per   CFSL,  report  Ex.  PW-34/A,  is  used  for  making  explosives/bombs  and  the  mixture  could  have  been  initiated by the action of sulphuric acid and the mixture  was “explosive substance”.

6. On completion of investigation of the present case  the  police  filed  a  charge-sheet  in  Court  against  four   accused  persons  for  the  commission  of  offences  under   Sections 302/307/120-B IPC and Sections 3 and 4 of the   Explosive  Substances  Act.   In  due  course  the  four   persons were committed to Sessions Court.  The  learned  Additional  Sessions  Judge  vide  order  dated  18.2.1999  discharged  three  accused  persons  namely,  Abdul   Rehman, Mohd. Maqsood and Ezaz Ahmed while against   fourth accused Mohd. Hussain @ Julfikar (the appellant   herein) charges under Sections 302/307 IPC and Section  3  and  in  the  alternative  u/s  4(b)  of  the  Explosive   Substances Act were framed.  The appellant had pleaded  not guilty to the charges framed against him and claimed  to be tried.”

3) The  prosecution  had  examined  as  many  as  65  witnesses  and  on  

conclusion of  prosecution evidence,  statement  of  the appellant  was  

recorded under Section 313 of the Code of Criminal Procedure (in  

short,  “Cr.P.C”),  who  had  denied  his  guilt  and  pleaded  false  

implication.  The Trial Court, upon appreciation of evidence of the  

prosecution witnesses,  held  the appellant  guilty  of  the charges and  

accordingly, imposed death penalty.  The conviction and sentence is  

affirmed by the High Court.  At this stage itself, it is relevant to notice  

that the appellant  had pleaded, both before the Trial  Court and the  

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High Court, that he was not given a fair and impartial trial and he was  

denied  the  right  of  a  counsel.   The  High  Court  has  noticed  this  

contention and has answered against the appellant. In the words of the  

High Court :

“  45. Faced with this situation Mr. Luthra came out with   an  arguments  that  this  case,  in  fact,  needs  to  be  remanded back to the trial back for a fresh trial because   the trial court record would reveal that the accused did   not have a fair trial inasmuch as on most of the hearing  when  material  witnesses  were  examined  he  was   unrepresented  and  the  trial  court  did  not  bother  to  provide him legal aid at State expense and by not doing   that the Trial Court, in fact, failed to discharge its pious   duty of ensuring that the accused was defended properly   and  effectively  at  all  stages  of  the  trial  either  by  his   private counsel or in the absence of private counsel by  an  experienced  and  responsible  amicus  curiae.   Mr.   Luthra  also  submitted  that,  in  fact,  the  learned  Additional  Sessions  Judge  himself  should  have  taken  active  part  at  the  time  of  recording  of  evidence  of   prosecution  witnesses  by  putting  questions  to  the  witnesses  who  had  been  examined  in  the  absence  of   counsel for the accused.  It was contended that the right   of the accused ensured to him under Articles 21 and 22  of the Constitution of India for a fair trial has been, thus,   violated.   In  support  of  this  argument  which,  in  fact,   appears to us to be the sheet anchor for the appellant,   Mr.  Siddharth Lutha cited some judgments also of  the   Hon’ble  Supreme Court  which are  reproduced as  AIR  1997 SC 1023, 1994 Supp. (3) SCC 321, AIR 1986 SC  991 and 1983 (III) SCC 307.  One judgment of Gauhati   High Court  reported  as  1987 (1)  Crimes  133,  “Arjun  Karmakar Vs. State of Assam” was also relied upon by  Mr. Luthra.    

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46.    There can be no dispute about the legal proposition   put forward by the learned counsel for the appellant that   it  is  the  duty  of  the  Court  to  see  and  ensure  that  an   accused in a criminal trial is represented with diligence   by a defence counsel and in case an accused during the   trial  remains  unrepresented because of  poverty  etc.,  it   becomes the duty of the Court to provide him legal aid at   State expense.  We find from the judgment of the trial   Court that this point was raised on behalf of the accused   during the trial also by the amicus curiae provided to the   accused when his private counsel stopped appearing for   him.  The learned trial Court dealt with this arguments in   para no.101 of the judgment which is as under:-

“It  is  next  submitted  that  material  witnesses  have  not   been cross examined by the accused and as such, their   testimony cannot be read against him.  I may add that   from the very beginning of the trial, the accused has been   represented by a counsel Sh. Riaz Mohd. and he  had   cross-examined some of the witnesses.  Later on, when   Sh.  Riaz  Mohd.  did  not  appear  in  the  Court  on  some   dates,  Mrs.  Sadhna  Bhatia  was  appointed  as  Amicus- Curiae to defend the accused at State expenses.  If the   accused did not choose to cross examine some witnesses,   he  cannot  be  forced  to  do  so.   Moreover,  later  one   accused  prayed  for  cross-examination  of  PW-1  Sh.   Darshan Kumar, which was allowed though it was filed  at  a  belated  stage  after  a  long  period  of  time.   The   accused  did  not  desire  any  other  witness  to  be  cross   examined.  Not only this, statement of PW-1 Sh. Darshan   Kumar  was  recorded  on 18-05-1999  and he  was  also  present  on 3-6-1999 and 13-08-1999,  but  on all  three  dates, the cross-examination of this witness was deferred   at  the  request  of  the  accused,  who  was  ultimately   discharged with nil cross-examination.  This shows that   accused  himself  was not  interested  in  cross-examining   the witnesses.  As such, this submission is also without   merit.”     

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47.       We have ourselves also perused the trial court   record and we are convinced that it is not a case where it   can be said that the accused did not have a fair trial or   that  he  had  been  denied  legal  aid.   We  are  in  full   agreement  with  the above quoted views of  the learned   Additional  Sessions  Judge  on  this  objection  of  the   accused and we refuse to accept the plea of the appellant   that this case should be remanded back for a re-trial.  ”

4) I have heard learned counsel Mr. Mobin Akhtar for the appellant and  

Mr. J.S. Atri, learned senior counsel for the State.   

5) In this Court, the judgments are assailed, apart from the merits, that  

the appellant is denied due process of law and the conduct of the trial  

is contrary to procedure prescribed under the provisions of Cr. P.C.  

and, in particular, that he was not given a fair and impartial trial and  

was denied the right of a counsel.  Since the aforesaid issue is of vital  

importance, I have thought it fit to answer that issue before I discuss  

the merits of the appeal. Therefore, firstly, I will consider the issue;  

whether the appellant was given a fair and impartial trial and, whether  

he was denied the right of a counsel.  To answer this issue, it may not  

be  necessary  to  discuss  the  facts  of  the  case  or  the  circumstances  

surrounding the prosecution case except so far they reflect upon the  

aforesaid issue.    

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6) To  answer  the  aforesaid  issue,  it  is  necessary  to  look  at  the  

proceedings of the Trial Court which are as under:

“6.7.98 Pr: APP All accused in j/c. All  accused  stated  that  they  are  not  in  position  to  engage  any  lawyer  and be  provided with  a  lawyer   from legal aid.

Legal  assistance  be  provided  to  all  accused  from  legal aid.

All  accused  requested  further  time  for  making  scrutiny of documents.   Allowed. Put up on 20.7.98  for scrutiny..

Sd/-      MM/Delhi

20/7/98

Pr: APP

All  accused  in  judicial  custody  with  Sh.  V.K.   Jain,Adv.

Sh.  Jain  requested  time  for  making  scrutiny  of   documents.

Sh.  Jain  sates  that  he  is  applying  for  further  time   (illegible)______.

Allowed.

Put up on 29/7/98 for scrutiny.

Sd./-   MM/Delhi

20.7.98

29/7/98

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Pr:  APP

All accused in j/c with Sh. V.K. Jain,Adv. from Legal   Aid.

Shri Jain requests for further time.

Allowed.  Put up on 6/8/98 for scrutiny.  

Sd./-   MM/Delhi    29.7.98

6.8.98

Pr: APP

All accused in j/c with Sh. Vijay Kr. Jain,Adv.

Sh. Jain stated that all  accused have been supplied   with complete copies of documents filed alongwith the   chargesheet. Hence provision of Sec. 207 Cr.P.C. are   complied with.

Present case also pertains to offence punishable u/s.   302/307  IPC  &  3,  4,  5  Explosive  Substances  Act   which  are  exclusively  triable  by  Court  of  Sessions.   Present  case  is  liable  to  be  commit  to  court  of   sessions.  I  accordingly  commit  the  present  case  to   court of Sessions.

Accused  are  directed  to  appear  before  court  of   sessions on 20.8.98.

Ahlmad is  directed  to  send the  file  complete  in  all   respects to court of sessions.

Notice to PP be also issued.

     Sd./-       MM/Delhi

6.8.98

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18/5/99

Pr:  Spl PP for State.

Accused in J/C.  

PW.1  partly  examined  and  his  cross-examination  deferred  at  the  request  of  accused  as  his  counsel   Firoz Khan has not put his appearance in the court.   

PW.1 is bound down for the next date of hearing.

PW.2 examined and discharged.

No  other  PW.  Present  except  IO  Satya  Prakash  present.

To come up for remaining evidence on 3/6/99.

Sd./- ASJ/Delhi

                                                                   18/5/99 3/6/99

Pr:  Spl. PP for the State.

Accused present in j/c with counsel.

PW.3, 4 present, examined and discharged.

PW.1, Darshan Kumar, Ganesh Sharma are present   but they are not examined on the request of defence  counsel as he has not gone through the statement.

Considering the request, both the witnesses are bound  down for next date of hearing.

Inspector  Satya  Prakash  IO  is  also  and  ischarged  (sic.).

Now to come for P.E. on 20/7/99. Sd/-

ASJ/Delhi 3/6/99

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20.7.99

Pr: Spl PP for the State

Accused in J.C. with Sh. Feroz Khan, Adv.,  Amicus   Curae (sic.)

PW 5, 6 & PW7 are examined and discharged.  PW  Darshan  Kumar  served  but  absent  despite  service.   Issue B/W in the sum of Rs.500/-.  PW Satya Prakash,   Insp. is reported to be on leave upto 26.7.99.  Now to   come up for remaining P.E. for 13.8.99.

                               Sd./- ASJ

20.7.99

13.8.99

Present :  Spl. PP for the State

Accused in j/c

PW1, 8 and 9 examined and discharged.

No other PW is present except IO of this case.

PW  Santosh  Kr.  Jha  has  shifted  to  Vill.  Ghagjai,   Distt.  Madhumani  Panna,  P.S.  Mani  Patti,  Post   Office Ghagjari, Bihar.  He be summoned at his new  address.

PW Ashok Kumar could not be served.  He be served  though IO.  SI Ashok Kumar is served but he sent a   request that he had gone to High Court.

To come up for RPE on 1.9.99.

Sd./- ASJ/Delhi

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4/10/99

Pr:  Spl. PP for the State.

Accused in J/C.

PW.  10,  11,  12  &  13  present,  examined  and  discharged.   

PW. Santosh Kumar Jha is served but absent despite   service.  PW. Ashok Kumar served but sent request   that  he had to attend a duty and may be exempted   today.

IO  present  is  discharged  for  today.   Witnesses  be   summoned again.

List the matter for evidence on 2/11/99.     

Sd./- ASJ/Delhi

4/11/99 (sic.)

2.11.99

Present:  As before.

PW 14 examined and discharged.

No  other  PW  is  present  except  IO  Satya  Prakash.   Mother of Sunil Kr. Sharma is present and submits that   he is not in a position  to move from bed.  Considering  her request and there are other number of witnesses to   prove the explosion in the bus.  Let his name be dropped  from the list of witness and need not be summoned.

List the matter for RPE on 3.12.99.

Sd./-                                                                            ASJ/Delhi

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27/7/2000

Pr:  Addl. PP for the State.

Accused in J/C.

PWs.15 to 17 examined and discharged.

PWs. SI Om Prakash and SI Satya Prakash, IOs have  sent requests.  PWs. Dr. K. Goyal and Dr. Ashok Jaiswal   are unserved.  Re-summon.

Now, List the case for RPE on 25/08/2000.

Sd./-               ASJ/Delhi

20/9/2000

Pr: Addl. PP for the State.

Accused in J/C.

PWs.18 & 19 examined, cross-examined and discharged.   

No other witness served for today.

Now, list the matter for P.E. on 6/11/2000. Sd./-

ASJ/Delhi

29.11.2000

Present: Addl. PP for the State. Accused in j/c.

PW 20 examined and discharged.

No other PW is present. PW SI Om Prakash is served but   absent despite service.  Issue B/W in the sum of Rs.500/-.   

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Entire remaining witnesses be summoned through IO on  10.1.2001.

Sd./- ASJ/Delhi

10.1.2001

Present:  Spl PP for State. Accused in J/C. PW-21 and 22 examined, cross-examined and  discharged.  No other PW is present except IO. PW Rajinder Singh Bist is absent despite service.  Issue  B/W against him in the sum of Rs.500/-. Now list the case for RPE on 14.2.2011.

Sd./- ASJ/Delhi

14/2/2001

Pr: Addl.  PP for the State.Accused in J/C. PW. 23 & 24 examined, cross-examined and discharged. No other witness served for today. IO, SI Om Prakash is absent despite service.  Issue B/Ws  against him in the sum of Rs.500/-. Now, put up the case for entire RPE on 14/3/2001.

Sd./- ASJ/Delhi

14.3.2001

Present: Spl.  PP for the State. Accused in J/C with counsel. PW-25, PW-26,  PW-27 examined, cross-examined and  discharged. No other witness is present, as none else has been  served.  Now list the case for P.E. on 11.4.2001.

Sd./- ASJ/Delhi

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11.4.2001

Present:  Sp. PP for the State. Accused in J/C. PW-28 examined, cross-examined and discharged. Witnesses Sunil Kumar, Md. Naria, Bhagirat Prasad and  Raj Kumar Verma are reported to be not residing at the  given addresses.  They all be summoned through IO. No other PW is present. Last opportunity be granted to the prosecution to lead  the entire R.P.E. Now to come up for (sic.)  8.5.2001.

Sd./- ASJ/Delhi

4/7/2001

Pr. Spl. PP for the State. Accused in J/C. PWs. 29, 30, 31 & 32 examined, cross-examined and  discharged. No other witness is served for today. Now put up the case for entire RPE on 13/8/01.

Sd./- ASJ/Delhi

11.2.2002 Present:  Addl. PP for the State. Accused is present in J/C. PW-33 examined, cross-examined and discharged. No other PW is present except the IO. Now to come up for RPE on 26.3.2002.

Sd./- ASJ/Delhi

26/3/02 Pr: Addl. PP for the State. Accused in J/C.

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PW.34,  35,  36  &  37  examined,  cross-examined  and  discharged. No other PW. is present. Now to come up for RPE on 7/5/02.

Sd./- ASJ/Delhi

24/09/02 Present:  Spl. PP for the State. Accused in J/C. PW-42  &  PW-43  examined,  cross-examined  and  discharged. No other PW is present. Now to come up for entire R.P.E. on 18.10.02.

Sd./- ASJ/Delhi

18/10/02 Pr.   Sh. Jitender Kakkar, Addl. PP for the State. Accused in J/C. PW.44  &  PW.45  examined,  cross-examined  and  discharged.   No other PW. is present. Now list the matter for entire RPE on 13/12/02.

Sd./- ASJ/Delhi

13.12.02 Present:  Accused in judicial custody. Ld. ______ is on leave today. Illigible__ 17/1/2003 for RPE.

Sd./- Reader

   13.12.02

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25/02/03

Pr:  Sh. Bakshish Singh, Spl. PP for State. Accused in J/C with counsel. Two PWs. 46 & 47 have been examined, cross-examined  and discharged. No other witness is present. Ld. Spl. PP seeks another opportunity for adducing  evidence.  In the interest of justice one more opportunity   is granted to the prosecution to lead the entire evidence  on 26.03.03.

Sd./- ASJ/Delhi

26/3/2003

Pr. : Addl. PP Sh. Jitender Kakkar, for the State. Accused in J/C. PW-48 examined, cross examined and discharged.  No other PW is present.  PW Vinod Kumar has not been served.  PW Vinod Kumar along with all the public witnesses be  summoned through IO for 22.4.2003.

In the interest of justice, one more opportunity is   granted to the prosecution to lead its entire evidence for   the date fixed.  

ASJ/Delhi 22.4.03

Present : Addl. PP Sh. Jitender Kakkar for the State  Accused in J.C.  PW-49,  PW-50  and  PW-51  examined,  cross-examined  and discharged.  Put up for RPE on 09.05.03.  On the   request of Ld. APP one more opportunity is given to the   prosecution  to  lead  entire  remaining  evidence.   The  witnesses be summoned through I.O. Put up for P.E. on  09.05.03.

ASJ/Delhi 22.04.03

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09/05/03

Present Sh. Bakshish Singh Spl. PP for the state Accused in JC PW-52  has  been  examined,  cross-examined  and  discharged.  No other PW is present.   None has been   served.  Both  the  remaining  witnesses  be  summoned  through  I.O.   In  the  interest  of  justice,  one  more   opportunity is granted to the prosecution to read entire   evidence on 15/07/03.

ASJ/Delhi 09/05/03

1102/97 15.07.03

Present : Accused in J.C.

Sh. Bakshish Singh, Ld. State Counsel is present  PW-53  Ins.  Data  Ram  has  been  examined,  cross- examined and discharged.  No other PW except the IO is   present.   PW Vinod  Kumar  is  absent  despite  service.   Issue B/w in the sum of Rs.500/-.  PW Bhagirathi Prasad   and Sunil Kumar are reported to be not residing at the   given  address.   IO  of  the  present  case  is  directed  to   produce these witnesses on his own responsibility.  Last   opportunity  is  granted  to  the  prosecution  to  lead  the   entire evidence on 13.8.03.

ASJ/Delhi 15.07.03

01/09/03 Present : Spl. P.P. for the State Accused in J.C. Ins. Satya Prakash, ZO is present. PW-54 & PW-55 recorded and discharged.   No other PW is present or served.   IO is discharged for today only.   Put up for RPE on 01/10/03.   

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ASJ/Delhi 01/09/03

01/10/03

Present  : Spl. P.P. for the State. Accused in J.C.  It is 2.35 PM.  Heard.   PW-56 recorded and discharged. Ins. Tandon and one more witness Vinod are present.   However, they were discharged for today as they have  some urgent work.  Their prayer is allowed.  Put up for   RPE on 01/11/03.  The accused is directed to bring his   advocate on next date.   

ASJ/Delhi 01/10/03

7) The recording in the order sheet of the trial Judge is not accurate.  I  

say so for the reason that examination of witnesses from 1 to 56 was  

done when accused was not represented by an advocate.  I have come  

to  this  conclusion  after  carefully  reading  the  evidence  of  these  

witnesses recorded by the learned trial Judge.  By way of illustration, I  

have  extracted  evidence  of  some  of  the  witnesses  recorded  on  

different dates :-

“PW 1  

Darshan Kumar  

S/o  Fakir  Chand,  Age  –  30  years,  Driver,  R/o  B-48,   Piragarhi, New Delhi - 43   

I  was  working  as  conductor  in  blue  line  bus  No.   DL1P3088 and the said bus used to ply from Nangloi to   Ajmeri Gate.   

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x x x x x x

deferred as defence counsel is not available.   

PW2  

Vijay Kumar

s/o Fakir Chand, Age about 28 years, Driver, R/o C-154   Pira Garhi, Relief Camp, Delhi.  

I am working as driver in blue line bus DL1P 3088 and   the sadi bus plies from Ajmeri Gate to Nangloi.

x x x x x x

Nil opportunity given.   

PW3

Moin Khan  

S/o Abdul Rashid Khan, Age – 22 years, service, R/o B- 104, Prem Nagar, Kirari Village, Delhi.

x x x x x x

by counsel Firoz Khan.

PW4

Imtiyaz Khan

S/o Rustam Khan, Age – 25 years,  Machine Operator,   R/o H-10, Man Sarover Park, Riti Road, Shahdrah.   

x x x x x x

Nil Opportunity given.”

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8). The  records  would  disclose  that  during  the  committal  proceedings  

before the learned Magistrate, the appellant was assisted by one Sri.  

V.K. Jain, a learned counsel employed by the State.  He continued till  

the case was committed to the Court of Sessions Judge.  Before the  

said Court, one Mr. Feroze Khan was employed by the State to assist  

the appellant.  He participated in the proceedings before the Sessions  

Judge only on few days of the trial.  After he stopped attending the  

proceedings,  that  too  at  the  fag  end  of  the  trial,  another  learned  

counsel was appointed to assist the appellant.        

9). The record further discloses that immediately, on completion of the  

investigation, a charge sheet punishable under Section 302/307/120-B  

of the IPC read with Section 3/4/5 of The Explosive Substances Act  

was filed in the court of learned Metropolitan Magistrate against the  

appellant and others by the prosecuting agency.  After completing the  

necessary  formalities,  the  case  was  committed  to  the  Court  of  

Sessions  by  the  learned  Metropolitan  Magistrate.   The  learned  

Sessions  Judge,  after  discharging  the  other  accused  persons,  had  

framed charges against the appellant under Section 302/307  of the  

IPC read with Section 3/4 of The Explosive Substances Act, to which,  

the appellant denied his guilt and claimed to be tried.  The appellant  

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was initially assisted by a learned counsel employed by the learned  

Sessions  Judge.   However,  in  the  mid  way,  the  learned  counsel  

disappeared from the scene, that is, before conclusion of the trial.  It is  

apparent from the records that he was not asked whether he is able to  

employ  counsel  or  wished  to  have  counsel  appointed.   When  the  

parties were ready for the trial, no one appeared for the accused.  The  

Court did not appoint any counsel to defend the accused.  Of course, if  

he  had  a  defence  counsel,  I  do  not  see  the  necessity  of  the  court  

appointing anybody as a counsel.  If he did not have a counsel, it is  

the mandatory duty of the court to appoint a counsel to represent him.  

The record reveals that the evidences of 56 witnesses, out of the 65  

witnesses, examined by the prosecution in support of the indictment,  

including  the  eye  witnesses  and  the  Investigating  Officer,  were  

recorded  by  the  Trial  Court  without  providing  a  counsel  to  the  

appellant.  The record also reveals that none of the 56 witnesses were  

cross-examined by the  accused/appellant.   It  is  only thereafter,  the  

wisdom  appears  to  have  dawned  on  the  Trial  Court  to  appoint  a  

learned counsel on 04.12.2003 to defend the appellant.  The evidences  

of  the  prosecution  witnesses  from  57  to  65  were  recorded  in  the  

presence of the freshly appointed learned counsel, who thought it fit  

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not to cross-examine any of those witnesses.  Before the conclusion of  

the  trial,  she  had  filed  an  application  to  cross-examine  only  one  

prosecution  witness  and  that  prayer  in  the  application  had  been  

granted by the Trial Court and the learned counsel had performed the  

formality of cross-examining this witness.  I do not wish to comment  

on the performance of the learned counsel, since I am of the view that  

‘less  said the better’.   In this  casual  manner,  the trial,  in  a  capital  

punishment case, was concluded by the Trial Court.  It will, thus, be  

seen that the trial court did not think it proper to appoint any counsel  

to defend the appellant/accused, when the counsel engaged by him did  

not  appear  at  the  commencement  of  the  trial  nor  at  the  time  of  

recording of the evidence of the prosecution witnesses.  The accused  

did not have the aid of the counsel in any real sense, although, he was  

as much entitled to such aid during the period of trial.   The record  

indicates, as I have already noticed, that the appointment of learned  

counsel  and her  appearance  during  the  last  stages  of  the  trial  was  

rather proforma than active.  It cannot seriously be doubted at this late  

date that the right of cross-examination is included in the right of an  

accused in a criminal case, to confront the witnesses against him not  

only on facts  but  also to discredit  the witness by showing that  his  

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testimony-in-chief was untrue and unbiased.  The purpose of cross-

examination  of  a  witness  has  been  succinctly  explained  by  the  

Constitution Bench of this Court in Kartar Singh Vs. State of Punjab  

(1994) 3 SCC 569 :

“278. Section 137 of  the Evidence  Act  defines  what   cross-examination means and Sections  139 and 145  speak of the mode of cross-examination with reference   to the documents  as well  as  oral evidence.  It  is  the   jurisprudence  of  law  that  cross-examination  is  an   acid-test of the truthfulness of the statement made by a  witness on oath in examination-in-chief, the objects of   which are : (1) to  destroy or  weaken the evidentiary  value of   the witness of his adversary; (2) to elicit facts in favour of the cross-examining  lawyer's  client  from the mouth of  the  witness of  the  adversary party; (3) to show that the witness is unworthy of belief by   impeaching the credit of the said witness; and  the  questions  to  be  addressed  in  the  course  of   cross-examination are to test his veracity; to discover   who he is and what is his position in life; and to shake  his credit by injuring his character.  ”

10) The  aforesaid  view is  reiterated  by  this  Court  in  Jayendra  Vishnu  

Thakur  Vs.  State  of  Maharashtra  (2009)  7  SCC 104 wherein  it  is  

observed :  

“ 24. A right to cross-examine a witness, apart   from being a natural right is a statutory right. Section   137 of the Evidence Act provides for examination-in- chief, cross-examination and re-examination. Section   

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138 of the Evidence Act confers a right on the adverse   party  to  cross-examine  a  witness  who  had  been  examined in chief, subject of course to expression of   his desire to the said effect. But indisputably such an  opportunity is to be granted. An accused has not only   a valuable right to represent himself, he has also the  right to be informed thereabout. If an exception is to   be carved out, the statute must say so expressly or the   same must be capable of being inferred by necessary  implication.  There  are  statutes  like  the  Extradition   Act, 1962 which excludes taking of evidence vis-à-vis   opinion.  ”

11) In my view, every person, therefore, has a right to a fair trial by a  

competent court in the spirit of the right to life and personal liberty.  

The  object  and  purpose  of  providing  competent  legal  aid  to  

undefended  and  unrepresented  accused  persons  are  to  see  that  the  

accused gets  free and fair,  just  and reasonable  trial  of  charge in a  

criminal case.  This Court, in the case of Zahira Habibullah Sheikh (5)  

Vs. State of Gujarat (2006) 3 SCC 374 has explained the concept of  

fair  trial  to  an  accused  and it  was  central  to  the  administration  of  

justice and the cardinality of protection of human rights.  It is stated :  

“35. This  Court  has  often  emphasised  that  in  a   criminal  case  the  fate  of  the  proceedings  cannot  always  be  left  entirely  in  the  hands  of  the  parties,   crime being public wrong in breach and violation of   public  rights  and  duties,  which  affects  the  whole   community as a community and is harmful to society   

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in general.  The concept  of  fair  trial  entails  familiar   triangulation  of  interests  of  the  accused,  the  victim  and  the  society  and  it  is  the  community  that  acts   through the State and prosecuting agencies. Interest of   society  is  not  to  be  treated  completely  with  disdain  and  as  persona  non  grata.  The  courts  have  always  been  considered  to  have  an  overriding  duty  to   maintain  public  confidence  in  the  administration  of   justice—often referred to as the duty to vindicate and  uphold the “majesty of the law”. Due administration  of  justice  has  always  been  viewed  as  a  continuous   process,  not  confined  to  determination  of  the   particular case, protecting its ability to function as a   court of law in the future as in the case before it. If a   criminal  court  is  to  be  an  effective  instrument  in  dispensing justice, the Presiding Judge must cease to   be  a  spectator  and  a  mere  recording  machine  by  becoming  a  participant  in  the  trial  evincing   intelligence,  active  interest  and  elicit  all  relevant   materials  necessary  for  reaching  the  correct   conclusion, to find out the truth, and administer justice   with fairness and impartiality both to the parties and   to the community it serves. The courts administering  criminal justice cannot turn a blind eye to vexatious or   oppressive  conduct  that  has  occurred  in  relation  to  proceedings, even if a fair trial is still possible, except   at the risk of undermining the fair name and standing   of  the  judges  as  impartial  and  independent   adjudicators.

36. The principles of rule of law and due process  are closely linked with human rights protection. Such  rights can be protected effectively when a citizen has  recourse  to  the  courts  of  law.  It  has  to  be   unmistakably  understood  that  a  trial  which  is   primarily aimed at ascertaining the truth has to be fair   to  all  concerned.  There  can  be  no  analytical,  all   comprehensive or exhaustive definition of the concept   of  a fair  trial,  and it  may have to be determined in  seemingly infinite variety of actual situations with the  ultimate  object  in  mind viz.  whether  something  that   

27

was done or said either before or at the trial deprived  the quality of fairness to a degree where a miscarriage   of justice has resulted. It will not be correct to say that   it is only the accused who must be fairly dealt with.   That would be turning a Nelson's eye to the needs of   society  at  large  and  the  victims  or  their  family   members and relatives. Each one has an inbuilt right   to be dealt with fairly in a criminal trial. Denial of a  fair trial is as much injustice to the accused as is to   the victim and the society. Fair trial obviously would  mean  a  trial  before  an  impartial  judge,  a  fair   prosecutor and an atmosphere of judicial calm. Fair   trial means a trial in which bias or prejudice for or  against the accused, the witnesses, or the cause which   is  being  tried  is  eliminated.  If  the  witnesses  get   threatened or are forced to give  false  evidence that   also would not result in a fair trial. The failure to hear   material witnesses is certainly denial of fair trial.

37. A criminal trial is a judicial examination of the   issues  in  the  case  and its  purpose is  to  arrive  at  a   judgment  on  an  issue  as  to  a  fact  or  relevant  facts   which may lead to the discovery of the fact in issue   and  obtain  proof  of  such  facts  at  which  the   prosecution  and  the  accused  have  arrived  by  their   pleadings; the controlling question being the guilt or  innocence of the accused. Since the object is to mete   out  justice and to convict  the guilty  and protect  the   innocent, the trial should be a search for the truth and   not a bout over technicalities, and must be conducted   under  such  rules  as  will  protect  the  innocent,  and  punish the guilty. The proof of charge which has to be   beyond reasonable doubt must depend upon judicial   evaluation  of  the  totality  of  the  evidence,  oral  and   circumstantial, and not by an isolated scrutiny.  ”

12) In  M.H.  Hoskot  Vs.  State  of  Maharashtra  1978 (3)  SCC 544,  this  

Court has held :

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“14. The  other  ingredient  of  fair  procedure  to  a   prisoner, who has to seek his liberation through the   court  process  is  lawyer's  services.  Judicial  justice,   with  procedural  intricacies,  legal  submissions  and  critical  examination  of  evidence,  leans  upon  professional expertise; and a failure of equal justice   under the law is on the cards where such supportive  skill is absent for one side. Our judicature, moulded  by Anglo-American models and our judicial process,   engineered  by  kindred  legal  technology,  compel  the  collaboration of lawyer-power for steering the wheels   of equal justice under the law. Free legal services to   the  needy  is  part  of  the  English  criminal  justice   system. And the American jurist, Prof. Vance of Yale,   sounded sense for India too when he said :  

“What does it profit a poor and ignorant man that   he is equal to his strong antagonist before the law if   there is no one to inform him what the law is? Or that   the courts are open to him on the same terms as to all   other persons when he has not the wherewithal to pay   the admission fee?”   ”

13) In  Mohd.  Sukur  Ali  Vs.  State  of  Assam (2011)  4  SCC 729,  it  is  

observed :  

“9. In  Maneka Gandhi v.  Union of India, it has been  held by  a Constitution Bench of  this  Court  that  the   procedure for depriving a person of his life or liberty   should  be  fair,  reasonable  and  just.  We  are  of  the  opinion that it is not fair or just that a criminal case   should be decided against an accused in the absence  of a counsel. It is only a lawyer who is conversant with   law who can properly defend an accused in a criminal   case.  Hence,  in  our  opinion,  if  a  criminal  case   (whether a trial or appeal/revision) is decided against   an accused in the absence of a counsel, there will be   violation of Article 21 of the Constitution.

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10. The right to appear through counsel has existed   in England for over three centuries. In ancient Rome  there  were  great  lawyers  e.g.  Cicero,  Scaevola,   Crassus,  etc.  who defended the accused.  In  fact  the   higher the human race has progressed in civilisation,   the clearer and stronger has that right appeared, and  the more firmly has it been held and asserted. Even in   the  Nuremberg  trials  the  Nazi  war  criminals,   responsible  for  killing  millions  of  persons,  were  yet   provided  counsel.  Therefore  when  we  say  that  the   accused  should  be  provided  counsel  we  are  not   bringing  into  existence  a  new  principle  but  simply   recognising what already existed and which civilised  people have long enjoyed.  ”

14) In the case of Hussainara Khatoon and Others v. Home Secy., State of  

Bihar (1980) 1 SCC 98, it is held :

“6. Then there are several undertrial  prisoners who  are charged with offences which are bailable but who  are still in jail presumably because no application for   bail has been made on their behalf or being too poor  they are unable to furnish bail. It is not uncommon to   find  that  undertrial  prisoners  who  are  produced  before the Magistrates are unaware of their right to   obtain release on bail and on account of their poverty,   they are unable to engage a lawyer who would apprise   them of their right to apply for bail and help them to   secure release on bail by making a proper application   to  the  Magistrate  in  that  behalf.  Sometimes  the  Magistrates  also  refuse  to  release  the  undertrial   prisoners  produced  before  them  on  their  personal   bond but insist on monetary bail with sureties, which   by reason of their poverty the undertrial prisoners are   unable  to  furnish  and  which,  therefore,  effectively   shuts out for them any possibility of release from pre- trial detention. This unfortunate situation cries aloud  for  introduction  of  an  adequate  and  comprehensive   

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legal service programme, but so far, these cries do not   seem to have evoked any response. We do not think it   is possible to reach the benefits of the legal process to  the  poor,  to  protect  them  against  injustice  and  to   secure to them their constitutional and statutory rights   unless there is a nation-wide legal service programme  to provide free legal services to them. It is now well   settled,  as  a  result  of  the  decision  of  this  Court  in   Maneka Gandhi v. Union of India that when Article 21  provides that no person shall be deprived of his life or   liberty  except  in  accordance  with  the  procedure   established by law, it is not enough that there should  be some semblance of procedure provided by law, but   the procedure under which a person may be deprived  of his life or liberty should be “reasonable, fair and  just”.  Now,  a  procedure  which  does  not  make  available legal services to an accused person who is   too poor to afford a lawyer and who would, therefore,   have to go through the trial without legal assistance,   cannot possibly be regarded as “reasonable, fair and  just”. It is an essential ingredient of reasonable, fair   and just  procedure to a prisoner who is  to seek his   liberation through the court's process that he should  have  legal  services  available  to  him.  This  Court   pointed out in M.H. Hoskot v.  State of Maharashtra :   “Judicial  justice,  with  procedural  intricacies,  legal   submissions  and  critical  examination  of  evidence,   leans  upon  professional  expertise;  and  a  failure  of   equal justice under the law is on the cards where such   supportive skill is absent for one side. Our judicature,   moulded by Anglo-American models and our judicial   process,  engineered  by  kindred  legal  technology,   compel the collaboration of lawyer-power for steering   the wheels of equal justice under the law”. Free legal   services  to  the  poor  and  the  needy  is  an  essential   element of any “reasonable, fair and just” procedure.   It  is  not  necessary  to  quote  authoritative   pronouncements by Judges and Jurists in support of   the  view  that  without  the  service  of  a  lawyer  an   accused person would be denied “reasonable, fair and  

31

just”  procedure.  Black,  J.,  observed  in  Gideon v.   Wainwright :

“Not only those precedents but also reason and  reflection  require  us  to  recognise  that  in  our   adversary system of criminal justice, any person haled   into court, who is too poor to hire a lawyer cannot be   assured a fair trial unless counsel is provided for him.   This seems to us to be an obvious truth. Governments,   both State and Federal quite properly spend vast sums  of  money  to  establish  machinery  to  try  defendants   accused  of  crime.  Lawyers  to  prosecute  are  everywhere  deemed  essential  to  protect  the  public's   interest in an orderly society. Similarly, there are few  defendants  charged  with  crime  who fail  to  hire  the  best lawyers they can get to prepare and present their   defences. That Government hires lawyers to prosecute   and defendants who have the money hire lawyers to   defend are the strongest indications of the widespread  belief that lawyers in criminal courts are necessities,   not luxuries. The right of one charged with crime to   counsel may not be deemed fundamental and essential   to fair trials in some countries, but is in ours. From  the  very  beginning,  our  State  and  national   constitutions  and  laws  have  laid  great  emphasis  on  procedural  and  substantive  safeguards  designed  to  assure fair trials before impartial tribunals in which   every  defendant  stands  equal  before  the  law.  This   noble  ideal  cannot  be  realised  if  the  poor  man  charged with crime has to face his accusers without a   lawyer to assist him.” The philosophy of  free legal  service  as an essential   element of fair procedure is  also to be found in the   passage  from  the  judgment  of  Douglas,  J.  in  Jon  Richard Argersinger v. Raymond Hamlin :

“The right to be heard would be, in many cases, of   little  avail  if  it  did  not  comprehend the  right  to  be   heard by counsel.  Even the intelligent  and educated  layman  has  small  and  sometimes  no  skill  in  the   science of law. If charged with crime, he is incapable,   

32

generally,  of  determining  for  himself  whether  the  indictment is good or bad. He is unfamiliar with the   rules of evidence. Left without the aid of counsel he  may  be  put  on  trial  without  a  proper  charge,  and  convicted  upon  incompetent  evidence,  or  evidence   irrelevant to the issue or otherwise inadmissible. He  lacks  both  the  skill  and  knowledge  adequately  to  prepare his defence, even though he has a perfect one.   He requires the guiding hand of counsel at every step   in the proceedings against him. Without it, though he  be  not  guilty,  he  faces  the  danger  of  conviction   because  he  does  not  know  how  to  establish  his   innocence.  If that be true of men of intelligence,  how  much more true is it of the ignorant and illiterate or   those of feeble intellect.  

Both  Powell  and  Gideon  involved  felonies.  But   their  rationale  has  relevance  to  any  criminal  trial,   where an accused is deprived of his liberty.

The court  should consider  the  probable  sentence   that will follow if a conviction is obtained. The more   serious  the  likely  consequences,  the  greater  is  the   probability that a lawyer should be appointed .... The  court should consider the individual factors peculiar   to  each  case.  These,  of  course  would  be  the  most   difficult  to  anticipate.  One relevant  factor  would  be  the competency of the individual defendant to present   his own case.” (emphasis added)  ”

15) In the case of Khatri Vs. State of Bihar (1981) 1 SCC 627, this Court  

has held :

“5. That takes us to one other important issue which   arises  in  this  case.  It  is  clear  from  the  particulars   supplied by the State from the records of the various   judicial  Magistrates  dealing  with  the  blinded   prisoners from time to time that,  neither at the time  when the blinded prisoners were produced for the first   time  before  the  Judicial  Magistrate  nor  at  the  time  

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when the remand orders were passed, was any legal   representation  available  to  most  of  the  blinded  prisoners.  The  records  of  the  Judicial  Magistrates   show that no legal representation was provided to the   blinded prisoners, because none of them asked for it   nor  did  the  Judicial  Magistrates  enquire  from  the   blinded prisoners produced before them either initially   or  at  the  time  of  remand  whether  they  wanted  any   legal representation at State cost. The only excuse for   not  providing  legal  representation  to  the  blinded   prisoners at the cost of the State was that none of the  blinded  prisoners  asked  for  it.  The  result  was  that   barring two or three blinded prisoners who managed  to get a lawyer to represent them at the later stages of   remand,  most  of  the  blinded  prisoners  were  not   represented by any lawyers and save a few who were  released on bail,  and that too after being in jail for   quite some time, the rest of them continued to languish  in jail.  It  is  difficult  to understand how this state of   affairs  could  be  permitted  to  continue  despite  the   decision  of  this  Court  in  Hussainara  Khatoon  (IV)  case.  This  Court  has  pointed  out  in  Hussainara  Khatoon (IV) case which was decided as far back as   March 9, 1979 that the right to free legal services is   clearly an essential ingredient of reasonable, fair and  just procedure for a person accused of an offence and   it must be held implicit in the guarantee of Article 21   and  the  State  is  under  a  constitutional  mandate  to   provide  a  lawyer  to  an  accused  person  if  the   circumstances of the case and the needs of justice so  require, provided of course the accused person does  not  object  to  the  provision  of  such  lawyer.  It  is   unfortunate that though this Court declared the right   to  legal  aid  as  a  fundamental  right  of  an  accused  person by a process of judicial construction of Article   21, most of the States in the country have not taken  note of this decision and provided free legal services   to  a  person  accused  of  an  offence.  We  regret  this   disregard of the decision of the highest  court  in the  land by many of the States despite the constitutional   

34

declaration in Article 141 that the law declared by this   Court  shall  be  binding  throughout  the  territory  of   India. Mr K.G. Bhagat on behalf of the State agreed  that in view of the decision of this Court the State was  bound  to  provide  free  legal  services  to  an  indigent   accused but he suggested that the State might find it   difficult  to do so owing to financial  constraints.  We  may point out to the State of Bihar that it cannot avoid  its  constitutional  obligation  to  provide  free  legal   services to a poor accused by pleading financial  or  administrative  inability.  The  State  is  under  a  constitutional mandate to provide free legal aid to an  accused person who is unable to secure legal services   on account of indigence and whatever is necessary for   this  purpose has to be done by the State.  The State   may have its financial constraints and its priorities in  expenditure but, as pointed out by the court in Rhem v.   Malcolm “the law does not permit any Government to   deprive its citizens of constitutional rights on a plea of   poverty” and to quote the words of Justice Blackmum  in  Jackson v.  Bishop “humane  considerations  and  constitutional requirements are not in this day to be   measured  by  dollar  considerations”.  Moreover,  this   constitutional obligation to provide free legal services   to an indigent accused does not arise only when the  trial commences but also attaches when the accused is   for the first time produced before the Magistrate. It is   elementary  that  the  jeopardy to  his  personal  liberty   arises as soon as a person is arrested and produced   before a Magistrate, for it is at that stage that he gets  the first opportunity to apply for bail and obtain his   release  as  also  to  resist  remand  to  police  or  jail   custody. That is the stage at which an accused person  needs competent legal advice and representation and  no procedure can be said to be reasonable, fair and   just which denies legal advice and representation to   him at  this  stage.  We  must,  therefore,  hold that  the   State is  under a constitutional  obligation to provide  free legal services to an indigent accused not only at   the stage of trial but also at the stage when he is first   

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produced  before  the  Magistrate  as  also  when  he  is   remanded from time to time.

6. But even this right to free legal services would  be  illusory  for  an  indigent  accused  unless  the   Magistrate or the Sessions Judge before whom he is   produced  informs  him  of  such  right.  It  is  common  knowledge that about 70 per cent of the people in the   rural  areas  are  illiterate  and  even  more  than  that   percentage  of  people  are  not  aware  of  the  rights   conferred upon them by law. There is so much lack of   legal awareness that it has always been recognised as   one  of  the  principal  items of  the  programme of  the   legal aid movement in this country to promote legal   literacy.  It  would make a mockery  of  legal  aid  if  it   were  to  be  left  to  a  poor  ignorant  and  illiterate   accused to ask for free legal services. Legal aid would   become merely a paper promise and it would fail of its   purpose. The Magistrate or the Sessions Judge before   whom the accused appears must be held to be under   an obligation to inform the accused that if he is unable   to  engage  the  services  of  a  lawyer  on  account  of   poverty or indigence, he is entitled to obtain free legal   services  at  the  cost  of  the  State.  Unfortunately,  the  Judicial  Magistrates  failed  to  discharge  this   obligation  in  the  case  of  the  blinded  prisoners  and  they  merely  stated  that  no  legal  representation  was  asked for by the blinded prisoners and hence none was   provided. We would, therefore, direct the Magistrates   and Sessions  Judges  in  the  country  to  inform every   accused  who  appears  before  them  and  who  is  not   represented by a lawyer on account of his poverty or   indigence that he is entitled to free legal services at   the cost of the State. Unless he is not willing to take   advantage of the free legal services provided by the   State, he must be provided legal representation at the   cost  of  the State.  We would also direct  the  State  of   Bihar and require every other State in the country to   make provision for grant of free legal services to an   accused who is unable to engage a lawyer on account   of  reasons  such  as  poverty,  indigence  or   

36

incommunicable  situation.  The  only  qualification  would be that the offence charged against the accused   is  such  that,  on  conviction,  it  would  result  in  a   sentence of imprisonment and is of such a nature that   the circumstances of the case and the needs of social   justice  require  that  he  should  be  given  free  legal   representation. There may be cases involving offences   such  as  economic  offences  or  offences  against  law  prohibiting  prostitution  or  child  abuse  and the  like,   where  social  justice  may  require  that  free  legal   services need not be provided by the State.  ”

16) In  Ram Awadh v.  State  of  U.P.  1999 Cr.L.J.  4083,  the  Allahabad  

High Court held :  

“14.  The  requirement  of  providing  counsel  to  an  accused at the State expense is not an empty formality   which  may  be  not  by  merely  appointing  a  counsel   whatever  his  calibre  may be.  When  the law enjoins   appointing a counsel to defend an accused, it means   an effective counsel, a counsel in real sense who can  safeguard the interest of the accused in best possible   manner which is permissible under law. An accused  facing charge of murder may be sentenced to death or  imprisonment  for  life  and  consequently  his  case  should be handled by a competent person and not by a   novice  or one who has no professional  expertise.  A  duty  is  cast  upon  the  Judges  before  whom  such  indigent  accused are facing trial  for serious offence  and who are not able to engage a counsel, to appoint   competent persons for their defence. It is needless to   emphasis that a Judge is not a prosecutor and his duty   is to discern the truth so that he is able to arrive at a   correct  conclusion.  A  defence  lawyer  plays  an   important  role  in  bringing  out  the  truth  before  the   Court  by cross-examining the witnesses  and placing  relevant materials or evidence. The absence of proper  cross-examination may at times result in miscarriage  

37

of justice and the Court has to guard against such an   eventuality. ”

(17)The  prompt  disposition  of  criminal  cases  is  to  be  commended  and  

encouraged.   But  in reaching that  result,  the accused charged with a  

serious offence must not be stripped of his valuable right of a fair and  

impartial trial.  To do that, would be negation of concept of due process  

of law, regardless of the merits of the appeal.  The Cr.P.C.  provides that  

in  all  criminal  prosecutions,  the  accused  has  a  right  to  have  the  

assistance of  a  counsel  and the  Cr.P.C.  also requires  the  court  in all  

criminal  cases,  where  the  accused  is  unable  to  engage  counsel,  to  

appoint  a  counsel  for  him at  the  expenses  of  the  State.   Howsoever  

guilty  the  appellant  upon  the  inquiry  might  have  been,  he  is  until  

convicted, presumed to be innocent.  It was the duty of the Court, having  

these cases in charge, to see that he is denied no necessary incident of a  

fair  trial.   In  the  present  case,  not  only  the  accused  was  denied  the  

assistance of a counsel during the trial and such designation of counsel,  

as was attempted at a late stage, was either so indefinite or so close upon  

the trial as to amount to a denial of effective and substantial aid in that  

regard.  The Court ought to have seen to it that in the proceedings before  

the court, the accused was dealt with justly and fairly by keeping in view  

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the cardinal principles that the accused of a crime is entitled to a counsel  

which may be necessary for his defence, as well as to facts as to law.  

The  same  yardstick  may  not  be  applicable  in  respect  of  economic  

offences or where offences are not punishable with substantive sentence  

of imprisonment but punishable with fine only.  The fact that the right  

involved is of such a character that it cannot be denied without violating  

those fundamental principles of liberty and justice which lie at the base  

of all our judicial proceedings.  The necessity of counsel was so vital  

and imperative that the failure of the trial court to make an effective  

appointment  of  a  counsel  was  a  denial  of  due process  of  law.   It  is  

equally true that the absence of fair and proper trial would be violation  

of fundamental principles of judicial procedure on account of breach of  

mandatory provisions of Section 304 of Cr.P.C.  

(18)After carefully going through the entire records of the trial court, I am  

convinced that the appellant/accused was not provided the assistance of  

a counsel in a substantial and meaningful sense.  To hold and decide  

otherwise,  would  simply  to  ignore  actualities  and  also  would  be  to  

ignore the fundamental postulates, already adverted to.

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(19) The  learned  counsel  for  the  respondent-State,  Sri  Atri  contends  that  

since  no  prejudice  is  caused  to  accused  in  not  providing  a  defence  

counsel, this Court need not take exception to the trial concluded by the  

learned Sessions Judge and the conviction and sentence passed against  

the accused.  I  find it  difficult  to accept the argument of the learned  

senior counsel.  The Cr. P.C. ensures that an accused gets a fair trial.  It  

is essential that the accused is given a reasonable opportunity to defend  

himself in the trial.  He is also permitted to confront the witnesses and  

other evidence that the prosecution is relying upon.  He is also allowed  

the assistance of a lawyer of his choice, and if he is unable to afford one,  

he is given a lawyer for his defence.  The right to be defended by a  

learned counsel  is  a  principal  part  of  the right  to fair  trial.   If  these  

minimum  safeguards  are  not  provided  to  an  accused;  that  itself  is  

“prejudice” to an accused.  It is worth to notice the observations made  

by this Court in the case of  Rafiq Ahmad alias Rafi vs. State of U.P.  

(2011) 8 SCC 300, wherein it is observed:

“35. When we speak of prejudice to an accused,   it has to be shown that the accused has suffered  some  disability  or  detriment  in  the  protections   available  to  him  under  the  Indian  criminal   jurisprudence.  It  is  also  a  settled  canon  of   criminal  law  that  this  has  occasioned  the  accused with failure of justice. One of the other  cardinal  principles  of  criminal  justice   

40

administration is that the courts should make a  close examination to ascertain whether there was  really a failure of justice or whether it is only a  camouflage,  as  this  expression  is  perhaps  too  pliable.  With  the  development  of  law,  Indian  courts have accepted the following protections to   and  rights  of  the  accused  during  investigation   and trial: (a)  The  accused  has  the  freedom  to  maintain  silence during investigation as well as before the  court.  The  accused  may  choose  to  maintain   silence or make complete denial even when his   statement  under  Section  313  of  the  Code  of   Criminal Procedure is being recorded, of course,   the court would be entitled to draw an inference,   including  adverse  inference,  as  may  be   permissible to it in accordance with law; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond  reasonable doubt.

36. Prejudice to an accused or failure of justice,   thus, has to be examined with reference to these   aspects.  That alone, probably, is the method to   determine  with  some  element  of  certainty  and  discernment  whether  there  has  been  actual   failure  of  justice.  “Prejudice”  is  incapable  of   being interpreted in its generic sense and applied  to criminal jurisprudence. The plea of prejudice   has to be in relation to investigation or trial and   not matters falling beyond their scope. Once the   accused  is  able  to  show  that  there  is  serious   prejudice to either of these aspects and that the   same  has  defeated  the  rights  available  to  him  under  the  criminal  jurisprudence,  then  the   accused can seek benefit under the orders of the   court. 37. Right to fair trial, presumption of innocence   until  pronouncement of guilt  and the standards   of proof i.e. the prosecution must prove its case  beyond  reasonable  doubt  are  the  basic  and  crucial tenets of our criminal jurisprudence. The   courts are required to examine both the contents   

41

of the allegation of prejudice as well as its extent   in  relation  to  these  aspects  of  the  case  of  the  accused.  It  will  neither  be  possible  nor  appropriate  to  state  such  principle  with   exactitude as it will always depend on the facts  and  circumstances  of  a  given  case.  Therefore,   the court has to ensure that the ends of justice   are  met  as  that  alone  is  the  goal  of  criminal   adjudication.”

(20)In  view  of  the  above  discussion,  I  cannot  sustain  the  judgments  

impugned and they must be reversed and the matter is to be remanded to  

the Trial Court with a specific direction that the Trial Court would assist  

the accused by employing a State counsel before the commencement of  

the trial till its conclusion, if the accused is unable to employ a counsel  

of his own choice.  Since I am remanding the matter for fresh disposal, I  

clarify that I have not expressed any opinion regarding the merits of the  

case.   

(21)In view of the above, I allow the appeal and set aside the conviction and  

sentence imposed by the Additional  Sessions Judge in Sessions Case  

No.122 of 1998 dated 03.11.2004 and the Judgment and Order passed  

by the High Court in Crl. Appeal No. 41 of 2005 dated 04.08.2006 and  

remand the case to the Trial Court for fresh disposal in accordance with  

law and in the light of the observations made by me as above.  Since the  

incident is of the year 1997, I direct the Trial Court to conclude the trial  

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as expeditiously as possible at any rate within an outer limit of three  

months  from the date  of  communication  of  this  order  and report  the  

same to this Court.       

........................……………………J.                                                                                  [H.L. DATTU]

New Delhi, January 11, 2012.

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REPORTABLE  

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 1091 OF 2006

Mohd. Hussain @ Julfikar Ali … Appellant

Versus

The State (Govt. of NCT) Delhi … Respondent

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. I have gone through the judgment prepared by  

my noble and learned Brother, H.L.Dattu, J. and I  

concur  that  the  conviction  and  sentence  of  the  

appellant is fit to be set aside as he was not given  

the assistance of a lawyer to defend himself during  

trial but, with profound respect, I find it difficult  

to  persuade  myself  that  it  is  a  fit  case  which  

deserves to be remanded to the Trial Court for fresh  

trial.

2. Facts which are necessary for the decision  

of this appeal are that the appellant, Mohd. Hussain  

@ Julfikar Ali is a national of Pakistan and he was  

put on trial for offences under Section 302 and 307  

of the Indian Penal Code and Section 3 and 4 of the  

Explosives Substances Act.  He was held guilty under  

Section 302 and 307 of the Indian Penal Code and  

Section 3 of Explosives Substances Act and sentenced  

to undergo imprisonment for life each under Section  

307  of  Indian  Penal  Code  and  Section  3  of  the  

Explosives Substances Act.  The trial court, however,  

punished him with death for offence under Section 302  

of the Indian Penal Code and submitted the proceeding  

for confirmation to the High Court.  The appellant  

preferred appeal before the High Court against his  

conviction and sentence.  Both the appeal and the  

reference  were  heard  together  and  by  an  impugned  

common  judgment  the  High  Court  has  dismissed  the  

appeal and confirmed the death sentence.

3. This is how the appellant is before us with the  

leave of the Court.  He challenges his conviction and  

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sentence  inter alia on the ground that he was not  

given  a  fair  trial,  which  alone  vitiates  his  

conviction  and  sentence.   India  is  the  world’s  

largest and most vibrant democracy and the judiciary  

is to ensure the rule of law.  This Court being the  

Court of last resort cannot brush aside  the claim  

without scrutiny only because the crime is serious  

and allegedly committed by the citizen of a country  

with which this country has no cordial relation.  

4. According  to  the  prosecution,  as  usual  in  a  

winter  evening of 30th December, 1997 at 6.20 P.M., a  

Blue-line  bus  carrying  passengers  was  on  way  to  

Nangloi from Ajmeri Gate, Delhi and when stopped at  

Rampura  bus  stand  on  Rohtak  Road  to  drop  the  

passengers, an explosion took place inside the bus in  

which four passengers died and 24 persons sustained  

serious injuries.  

5. A case under Section 302, 307 and 120-B of Indian  

Penal Code and Section 3 and 4 of the Explosives  

Substances  Act  was  registered  on  the  same  day.  

During  the  course  of  investigation,  one  Darshan  

Kumar, the conductor of the aforesaid blue line bus  

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disclosed  to  the  investigating  agency  that  one  

passenger  boarded  the  bus  from  Paharganj   with  a  

rexine-bag saying that he would go to Nangloi. He  

kept the rexine-bag underneath  the seat where he was  

sitting  but  got  down  at  Karol  Bagh  leaving  the  

rexine-bag.  Further  investigation  brought  to  light  

that  some  persons  belonging  to  terrorist  

organizations are operating in the Capital and their  

object  is  to  create  an  atmosphere  of  terror,  

insecurity and instability in the country by killing  

innocent citizens. This information prompted raids at  

different parts of the city in which hand grenades  

and materials used for making bombs were recovered.  

Some  persons  were  also  arrested  and  during  the  

interrogation  they  admitted  their  association  with  

terrorist organizations.  They also admitted to have  

come to this country  for ‘JEHAD’. This information  

received in bits and pieces  pointed the needle of  

suspicion on the  appellant in the crime in question  

and he was apprehended with pistol from his house at  

Lajpat Nagar. In order to ascertain his role, the  

Investigating  Agency  decided  to  hold  test  

47

identification parade for which the appellant did not  

object in the beginning but later on refused to join  

in the test identification parade.  

6. After usual investigation, the Police submitted  

charge-sheet under Section 302, 307 and 120-B of the  

Indian Penal Code and under Section 3 and 4 of the  

Explosives  Substances  Act.  The  charge-sheet  along  

with  the  police  papers  were  laid  before  the  

Metropolitan Magistrate for commitment. The appellant  

was in jail  and produced  before the  Committal  

Magistrate on 6th July, 1998.  He disclosed to the  

learned Magistrate that he was  “not in a position  

to engage a lawyer and be provided with a lawyer  

through legal aid”.  It seems that the assistance of  

one Mr. V.K.Jain, Advocate was made available to the  

appellant who appeared before the Committing Court on  

20th July, 1998 and prayed for time for scrutiny of  

documents. Ultimately, the appellant was committed to  

the  Court  of  Session  on  6th August,  1998.  The  

appellant was produced before the  Trial Court from  

time  to  time  and  on  18th February,  1999  was  

represented  by  Mr.Firoz  Khan  and  Mr.  Riyaj  Ahmed,  

48

Advocates.  On that date, the argument on framing of  

charge was heard and the Trial Court framed charges  

under Section 302 and 307 of the Indian Penal Code  

and  under  Section  3  and  4  of  the  Explosives  

Substances  Act  against  the  appellant  to  which  he  

pleaded not guilty and the prosecution was directed  

to produce its witnesses to substantiate the charge.  

On 18th May, 1999,  the appellant was produced before  

the Trial Court  but his counsel did not put in his  

appearance.   Despite that, P.W.l- Darshan Kumar, the  

conductor of the bus was examined in part and his  

cross- examination was deferred at the request of the  

appellant.  However,  on  the  same  day,  P.W.2-  Vijay  

Kumar was examined  and discharged.  On the next date  

fixed  in the case i.e. 3rd June, 1999 two witnesses  

namely; P.W.3- Moin Khan and P.W.4- Imtiaz Khan were  

examined and discharged.  But cross-examination of  

P.W.1-  Darshan  Kumar  did  not  take  place  at  the  

request  of  the  defence  counsel.  The  next  date  

relevant is 20th July, 1999 when the appellant was  

represented by his counsel and on that date, P.W.5-  

Ganesh Sharma, P.W.6- Basant Verma and P.W.7- Manohar  

49

Lal were examined and discharged.  Thereafter, the  

case was adjourned to 30th August, 1999 and from that  

date till 1st October, 2003,  though the appellant was  

not  represented  by  any  counsel,  altogether  56  

prosecution  witnesses  were  examined  to  prove   the  

charges against him.  Obviously in the absence of the  

counsel  the  truthfulness  or  otherwise  of  their  

evidences were not tested by cross-examination.

7. It  is  relevant  to  note  that  the  Trial  Court,  

during all this long period, did not realize that the  

appellant was not represented by any counsel  and it  

is on 4th December, 2003  the appellant brought to the  

notice of the Trial Court that  for the last several  

dates, the counsel appointed by the Court  was not  

present and hence a new counsel be appointed. It is  

on  the  appellant’s  prayer  that  one  Ms.  Sadhana  

Bhatia, Advocate present in the Court on the said  

date, was appointed to defend the appellant at the  

expenses of the State.  Thereafter, on 22nd December,  

2003, in the presence of said Ms. Sadhana Bhatia,  

counsel  for  the  appellant,  evidences  of  P.W.57-  

Dr.Mamtesh, P.W.58- Dr.Narendra Bhambri and P.W.59-  

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ASI  Mahender  Singh  were  recorded.  Thereafter,  the  

statements of the witnesses from P.Ws.60 to 65 were  

recorded  in  the  presence  of  appellant’s  counsel,  

Ms. Sadhana Bhatia.  Ultimately the  statement of the  

appellant  was  recorded  on  6th October,  2004  and  

argument on behalf of prosecution was heard in part.  

Next hearing took place on 8th October, 2004 when the  

argument on behalf of the prosecution was concluded  

and the case was adjourned to 12th October, 2004 for  

defence argument.  It is relevant here to state that  

during all this period the appellant was in custody.  

It  is  only  when  the  argument  on  behalf  of  the  

appellant was to be heard, counsel representing him  

later  i.e.  Ms.  Bhatia  realized  that  the  witnesses  

have  been  examined  and  discharged  without  cross-

examination in the absence of the defence counsel and  

accordingly, an application was filed for recall of  

P.W.1- Darshan Kumar for cross-examination.  The said  

prayer  was  allowed  and  P.W.1-  Darshan  Kumar  was  

cross-examined and discharged on 23rd October, 2004.  

It is worth mentioning here that the Trial Court has  

recorded  on  said  date  that   the  accused  has  not  

51

prayed for cross-examination of any other witness and  

accordingly,  it  heard  the  argument  and  posted  the  

case for judgment on 26th October, 2004. The appellant  

was held guilty and sentenced as above.

8. While  holding  the  appellant  guilty  the  trial  

court has not only relied upon the evidence of the  

witnesses  who  have  been  cross-examined  but  also  

relied upon the evidence of witnesses who were not  

cross-examined.   The  fate  of  the  criminal  trial  

depends  upon  the  truthfulness  or  otherwise  of  the  

witnesses  and,  therefore,  it  is  of  paramount  

importance.  To arrive at the truth, its veracity  

should  be  judged  and  for  that  purpose  cross-

examination  is  an  acid  test.   It  tests  the  

truthfulness of the statement made by a witness on  

oath  in  examination-in-chief.   Its  purpose  is  to  

elicit  facts  and  materials  to  establish  that  the  

evidence  of  witness  is  fit  to  be  rejected.   The  

appellant in the present case was denied this right  

only because he himself was not trained in law and  

not given the assistance of a lawyer to defend him.  

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Poverty also came in his way to engage a counsel of  

his choice.

9. Having  said  so,  it  needs  consideration  as  to  

whether assistance of the counsel would be necessary  

for fair trial.  It needs no emphasis that conviction  

and sentence can be inflicted only on culmination of  

the trial which is fair and just.  I have no manner  

of doubt that in our adversary system of criminal  

justice, any person facing trial can be assured a  

fair trial only when the counsel is provided to him.  

Its roots are many and find places in manifold ways.  

It  is  internationally  recognized  by  covenants  and  

Universal  Declaration  of  Human  Rights,  

constitutionally  guaranteed  and  statutorily  

protected.  

10. Article 14 of the International Covenant on Civil  

and Political Rights guarantees to the citizens of  

nations signatory to that covenant various rights in  

the determination of any criminal charge and confers  

on them the minimum guarantees.  Article 14 (2) and  

(3) of the said covenant read as under:

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“Article 14.

xxx xxx xxx

2. Everyone charged with a criminal offence  shall  have  the  right  to  be  presumed  innocent  until  proved  guilty  according  to law.

3.  In  the  determination  of  any  criminal  charge  against  him,  everyone  shall  be  entitled  to  the  following  minimum  guarantees, in full equality:  

(a)  To  be  informed  promptly  and  in  detail  in  a  language  which  he  understands of the nature and cause of  the charge against him;  

(b) To have adequate time and facilities  for the preparation of his defence and  to communicate with counsel of his own  choosing;  

(c) To be tried without undue delay;  

(d) To be tried in his presence, and to  defend  himself  in  person  or  through  legal assistance of his own choosing; to  be informed, if he does not have legal  assistance, of this right; and to have  legal assistance assigned to him, in any  case where the interests of justice so  require, and without payment by him in  any  such  case  if  he  does  not  have  sufficient means to pay for it;…….”

Article 14 (3) (d) entitles the person facing the  

criminal charge either to defend himself in person or  

54

through the assistance of a counsel of his choice and  

if he does not have legal assistance, to be informed  

of his right and provide him the legal assistance  

without payment in case he does not have sufficient  

means to pay for it.  It is accepted in the civilized  

world without exception that the poor and ignorant  

man is equal to a strong and mighty opponent before  

the law.   But  it is  of no  value for  a poor  and  

ignorant man if there is none to inform him what the  

law  is.  In  the  absence  of  such  information  that  

courts are open to him on the same terms as to all  

other persons the guarantee of equality is illusory.  

The  aforesaid  International  Covenant  on  Civil  and  

Political Rights guarantees to the indigent citizens  

of the member countries the right to be defended and  

right to have legal assistance without payment.

11. Not only this, the Universal Declaration on Human  

Rights  ensures  due  process  and  Article  10  thereof  

provides that everyone is entitled in full equality  

to a fair hearing by an independent and impartial  

tribunal  in  the  determination  of  his  rights  and  

obligations and of any criminal charges against him.  

55

Article 11 of Universal Declaration of Human Rights  

guarantees everyone charged with a penal offence all  

the guarantees necessary for the defence, the same  

reads as under:

“(1) Everyone charged with a penal offence  has the right to be presumed innocent until  proved guilty according to law in a public  trial  at  which  he  has  had  all  the  guarantees necessary for his defence.  

(2) No one shall be held guilty of any penal  offence on account of any act or omission  which  did  not  constitute  a  penal  offence,  under national or international law, at the  time  when  it  was  committed.  Nor  shall  a  heavier penalty be imposed than the one that  was applicable at the time the penal offence  was committed.”

12. These  salutary  features  forming  part  of  the  

International Covenants and Universal Declaration on  

Human Rights are deep rooted in our constitutional  

scheme.   Article  21  of  the  Constitution  of  India  

commands in emphatic terms that no person shall be  

deprived  of  his  life  or  personal  liberty  except  

according  to  the  procedure  established  by  law  and  

Article 22 (1) thereof confers on the person charged  

to be defended by a legal practitioner of his choice.  

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Article 39 A of the Constitution of India casts duty  

on the State to ensure that justice is not denied by  

reason of economic or other disabilities in the legal  

system and to provide free legal aid to every citizen  

with economic or other disabilities.   

13. Besides  the  International  Covenants  and  

Declarations  and  the  constitutional  guarantees  

referred  to  above,  Section  303  of  the  Code  of  

Criminal Procedure gives right to any person accused  

of an offence before a criminal court to be defended  

by a pleader of his choice.  Section 304 of the Code  

of  Criminal  Procedure  contemplates  legal  aid  to  

accused facing charge in a case triable by Court of  

Sessions  at  State  expense  and  the  same  reads  as  

follows:

      “304. Legal aid to accused at State  expense in   certain cases.

(1) Where, in a trial before the Court of  Session, the accused is not represented by a  pleader, and where it appears to the court  that the accused has not sufficient means to  engage a pleader, the court shall assign a  pleader for his defence at the expense of  the State.  

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(2) The High Court may, with the previous  approval of the State Government make rule  providing for-  

(a)  The  mode  of  selecting  pleaders  for  defence under sub-section (2);  

(b)  The  facilities  to  be  allowed  to  such  pleaders by the courts;  

(c) The fee payable to such pleaders by the  Government, and generally, for carrying out  the purposes of sub-section (1).  

(3)  The  State  Government  may,  by  notification, direct that, as from such date  as may be specified in the notification, the  provisions of sub-sections (1) and (2) shall  apply  in  relation  to  any  class  of  trials  before  other  courts  in  the  State  as  they  apply  in  relation  to  trials  before  the  Courts of Session.”

From a plain reading of the aforesaid provision  

it is evident that in a trial before the Court of  

Sessions  if  the  accused  is  not  represented  by  a  

pleader and has not sufficient means, the court shall  

assign a pleader for his defence at the expense of  

the State.  The entitlement to free legal aid is not  

dependent  on  the  accused  making  an  application  to  

that effect, in fact, the court is obliged to inform  

the accused of his right to obtain free legal aid and  

provide him with the same.   

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14. In my opinion, the right of a person charged with  

crime to have the services of a lawyer is fundamental  

and  essential  to  fair  trial.   The  right  to  be  

defended  by  a  legal  practitioner,  flowing  from  

Article 22 (1) of the Constitution has further been  

fortified  by  the  introduction  of  the  Directive  

Principles of State Policy embodied in Article 39 A  

of the Constitution by the 42nd Amendment Act of 1976  

and enactment of sub-section 1 of Section 304 of the  

Code of Criminal Procedure.  Legal assistance to a  

poor  person  facing  trial  whose  life  and  personal  

liberty is in jeopardy is mandated not only by the  

Constitution and the Code of Criminal Procedure but  

also  by  International  Covenants  and  Human  Rights  

Declarations.  If an accused too poor to afford a  

lawyer  is  to  go  thorough  the  trial  without  legal  

assistance,  such  a  trial  cannot  be  regarded  as  

reasonable, fair and just.  The right to be heard in  

criminal  trial  would  be  inconsequential  and  of  no  

avail if within itself it does not include right to  

be heard through counsel.  One cannot lose sight of  

the fact that even intelligent and educated men, not  

59

trained in law, have more than often no skill in the  

science  of  law  if  charged  with  crime.   Such  an  

accused not only lacks both the skill and knowledge  

adequately to prepare his defence but many a time  

looses his equilibrium in face of the charge.  A  

guiding  hand  of  counsel  at  every  step  in  the  

proceeding is needed for fair trial.  If it is true  

of men of intelligence, how much true is it of the  

ignorant  and  the  illiterate  or  those  of  lower  

intellect!  An accused without the lawyer faces the  

danger of conviction because he does not know how to  

establish his innocence.  

 15. Bearing  in  mind  the  aforesaid  principles,  I  

proceed to examine the facts of the present case.  In  

the case in hand the accused is a Pakistani and seems  

illiterate.  He asked for engagement of a counsel to  

defend him at State expenditure which was provided  

but unfortunately for him the counsel so appointed  

remained absent and a large number of witnesses have  

been examined in the absence of the counsel.  Those  

witnesses have not been cross-examined and many of  

them have been relied upon for holding the appellant  

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guilty.  The learned Judge in seisin of the trial  

forgot that he has an overriding duty to maintain  

public confidence in the administration of justice,  

often referred to a duty to vindicate and uphold the  

majesty of law.  He failed to realize that for an  

effective instrument in dispensing justice he must  

cease to be a spectator and a recording machine but a  

participant in the trial evincing intelligence and  

active  interest  so  as  to  elicit  all  relevant  

materials  necessary  for  reaching  the  correct  

conclusion,  to  find  out  the  truth  and  administer  

justice with fairness and impartiality both to the  

parties  and  to  the  community  itself.   Fundamental  

principles  based  on  reason  and  reflection  in  no  

uncertain  term  recognize  that  the  appellant  haled  

into  court  in  our  adversary  system  of  criminal  

justice  and  ultimately  convicted  and  sentenced  

without a fair trial.  There are high authorities of  

this Court which take this view and I do not deem it  

expedient to multiply and burden this judgment with  

those authorities as the same have been referred in  

the judgment of my learned Brother Dattu, J. except  

61

to refer to a judgment of this Court in the case of  

Hussainara Khatoon & Others v. Home Secy., State of  

Bihar, (1980) 1 SCC 98, in which it has been held as  

follows:  

“6.  …………………………Now,  a  procedure  which  does  not  make  available  legal  services  to  an  accused person who is too poor to afford a  lawyer and who would, therefore, have to go  through the trial without legal assistance,  cannot possibly be regarded as “reasonable,  fair  and  just”.  It  is  an  essential  ingredient  of  reasonable,  fair  and  just  procedure to a prisoner who is to seek his  liberation through the court's process that  he should have legal services available to  him………….”

16. Having found that the appellant has been held  

guilty and sentenced to death in a trial which was  

not reasonable, fair and just, the next question is  

as to whether it is a fit case in which direction be  

given for the de novo  trial of the appellant after  

giving him the assistance of a counsel.  I have given  

my most anxious consideration to this aspect of the  

matter and have no courage to direct for his de novo  

trial at such a distance of time.  For an occurrence  

of 1997, the appellant was arrested in 1998 and since  

then he is in judicial custody.  The charge against  

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him was framed on 18.02.1999 and it took more than  

five  years  for  the  prosecution  to  produce  its  

witnesses.  True it is that in the incident four  

persons have lost their lives and several innocent  

persons have sustained severe injuries.  Further, the  

crime  was  allegedly  committed  by  a  Pakistani  but  

these factors do not cloud my reason.  After all, we  

are proud to be a democratic country and governed by  

rule  of  law.   The  appellant  must  be  seeing  the  

hangman’s noose in his dreams and dying every moment  

while awake from the day he was awarded sentence of  

death,  more  than  seven  years  ago.   The  right  of  

speedy  trial  is  a  fundamental  right  and  though  a  

rigid time limit is not countenanced but in the facts  

of the present case I am of the opinion that after  

such  a  distance  of  time  it  shall  be  travesty  of  

justice to direct for the appellant’s de novo trial.  

By passage of time, it is expected that many of the  

witnesses may not be found due to change of address  

and various other reasons and few of them may not be  

in this world.  Hence, any time limit to conclude the  

trial would not be pragmatic.

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17. Accordingly,  I  am  of  the  opinion  that  the  

conviction and sentence of the appellant is vitiated,  

not on merit but on the ground that his trial was not  

fair and just.

18. Appellant  admittedly  is  a  Pakistani,  he  has  

admitted this during the trial and in the statement  

under Section 313 of the Code of Criminal Procedure.  

I have found his conviction and sentence illegal and  

the natural consequence of that would be his release  

from the prison but in the facts and circumstances of  

the case, I direct that he be deported to his country  

in accordance with law and till then he shall remain  

in jail custody.   

19. In the result the appeal is allowed, appellant’s  

conviction  and  sentence  is  set  aside  with  the  

direction aforesaid.  

………………………………………………………….J. (CHANDRAMAULI KR PRASAD)

New Delhi, January 11, 2012.  

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