Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.62-63 OF 2014

ANOKHILAL …Appellant

VERSUS

STATE OF MADHYA PRADESH …Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1.  These appeals by special leave challenge the final judgment and

order dated 27.06.2013 passed by the High Court1 in Criminal Reference

No.4 of 2013 and Criminal Appeal No.748 of 2013.   

2. The relevant facts for the purposes of these appeals, in brief, are as

under:

1  The High Court of Madhya Pradesh at Jabalpur

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(A) On 30.01.2013 a missing report was lodged by one Ramlal

that his daughter (hereinafter referred to as ‘the victim’) aged about

nine  years  was  missing  since  6  pm  and  that  the  appellant,  his

neighbour had sent the victim to get a bidi from a kirana shop but the

victim never returned back.  Pursuant to this reporting, FIR No.38 of

2013  was  registered  on  30.01.2013  with  Police  Station  Chaigaon

Makhan, Khandwa for offences under Sections 363, 366 of the Indian

Penal Code.1860 (‘IPC’, for short) against the appellant.

(B) The  body  of  the  victim  was  found  in  an  open  field  on

01.02.2013.

(C) The  appellant  was  arrested  on  04.02.2013,  and  after

completion of investigation charge-sheet was filed on 13.02.2013 in

the concerned court and the case was committed to Sessions Court on

18.2.2013.  The case was posted for 19.02.2013 to consider whether

charges be framed or not.  

(D) It appears that since no Advocate had entered appearance on

behalf  of  the  appellant,  on  18.02.2013  a  learned  Advocate  was

appointed  by  the  Legal  Aid  Services  Authority  to  represent  the

appellant on 19.02.2013.  That learned Advocate, however, did not

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appear  on  19.02.2013  when  the  case  was  taken  up,  and  as  such

another learned Advocate came to be appointed through Legal Aid

Services to represent the appellant.  Such appointment was done on

19.02.2013 and on the same day the charges were framed against the

appellant for the offences punishable under Sections 302, 363, 366,

376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of

Children from Sexual Offences Act, 2012.

(E) In  the  next  seven  days  i.e.  by  26.2.2013,  all  thirteen

prosecution witnesses were examined.  

(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013,

1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial

Court were :-  

“(i) 27.02.2013

State through Shri B.L. Mandloi P.P.

Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.

The prosecution filed application together with letter of  District  Prosecution  Officer  and  with  copy  of warrant  etc  documents.  Copies  are  supplied.  The defense has no objection in taking above documents on  record,  hence  considering  the  reasons  of  as explained  for  delay  the  application  is  liable  to  be accepted and above documents are taken on record.

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The  prosecution  stated  that  it  does  not  want  to produce any other oral evidence it has been requested that  DNA report  and FSL report  will  be  placed on record  as  and  when  they  are  received,  which  is immediately  to  be  received,  not  any  other  oral evidence are  to  be  adduced and besides  placing on record above report, rest of evidence was declared to be ended.

It would be just and proper to examine accused under Section  313  Cr.P.C.  for  evidence  available.  Hence, accused  examined  under  Section  313  Cr.P.C.  On entering in defense,  the accused stated that  he does not want to adduce any evidence in defense. Not any written statement under Section 232 (2)  Cr.P.C.  has been filed.  

Put  up  on  28.02.2013  for  placing  on  record  DNA report etc and final arguments.

Sd/- (illegible) Sessions Judge and Special Judge

Under Protection of Children from Sexual Offences Act,

Khandwa   

(ii) 28.02.2013

State through Shri B.L. Mandloi P.P.

Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.

An  application  was  filed  on  behalf  of  prosecution with FSL reports. Copies supplied. Heard arguments.

Since  there  is  no  effective  objection  regarding allowing  above  application  and  taking  on  record above FSL report  and even otherwise these may be helpful in providing justice,  hence reports are taken on record.

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Above reports may be acceptable under Section 293 Cr.P.C., on this basis it was requested to mark exhibit on  above  reports.  Defense  has  not  raised  any objection in this regard, hence with consent of both the  parties  above  reports  presented  by  Regional Forensic Science Laboratory Jhumarghat Rau Indore (M.P.) are marked as ext. C-1, C-2 and C-3.

The prosecution has not yet received DNA report, the same  will  be  placed  on  record  as  and  when  it  is received, saying such like earlier it was stated that any other evidence is not to be produced, hence hearing final  arguments  in  case  started,  which  remained incomplete.  

Put  up  on  01.03.2013  for  placing  on  record  DNA report and rest final arguments.

Sd/- Sessions Judge Khandwa

(iii) 01.03.2013

State through Shri B.L. Mandloi P.P.

Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution has not received DNA report, same will be placed on record on receipt.

Hearing  of  rest  of  final  arguments  started  which remained incomplete.

Put  up  on  02.03.2013  for  placing  on  record  DNA report and rest of final arguments.

Sd/- Sessions Judge

Khandwa

(iv) 02.03.2013

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State through Shri B.L. Mandloi P.P.

Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.

The  accused  is  being  tried  under  Section  9  of Protection  of  Children  from  Sexual  Offences  Act, 2012 and according to Provisions of Section 5 (f) of above Act, the situation of previous conviction for the sexual offence under Section 377 IPC is also clear and above fact has found mention in charge No.8 framed in earlier with intention that despite being previously convicted for sexual offence under Section 377 IPC but  in  above  charge  date  time and place  etc  is  not mentioned  regarding  conviction  according  to provisions  of  Section  211  (7)  Cr.P.C.  Hence,  as  is provided  under  Section  211  (7)  Cr.P.C.  the  Court before passing order of conviction may add statement of  fact,  date  and place of  conviction,  hence in  this regard both the parties were heard. In earlier the copy of judgment of previous conviction was not filed due to which date, place etc were not mentioned in charge and during examination under Section 313 Cr.P.C. in question No.14 in this regard by giving reference of copy of judgment together with date, time and place etc conviction was passed and appeal was filed or not in this regard clear questions were asked, hence it also does not reflect that any prejudice has been caused to accused  nevertheless  to  avoid  technical  fault, according  to  provisions  of  Section  211  (7)  Cr.P.C. charge was modified and amended charge was read over  and  explained  to  accused  and  his  plea  was recorded.  

Giving  opportunity  of  additional  evidence/cross examination to both parties regarding amended charge would  be  just  and  proper,  in  this  regard  both  the parties were intimated.

Prosecution  today  by  placing  on  record  certain additional  documents  articles  etc.  led  additional

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evidence  and application  under  Section  311  Cr.P.C. has been filed.  Besides this, he stated not to adduce any other additional evidence in regard to amendment in  charge.   On  the  other  hand  defense  also  in  this regard  stated  not  to  conduct  cross  examine  any witness  already  examined  and  also  stated  not  to furnish  any  additional  evidence  or  evidence  in defense.

The prosecution presented articles relating to case in sealed condition and an application with documents was filed under Section 311 Cr.P.C.  Copy supplied. Arguments heard.

It  is  proposed  to  file  received  DNA  report  and correspondent of FSL/DNA and in above regard also request  has  been  made  to  re-examine  Investigating Officer  K.K.  Mishra  (PW-13)  and  Head  Constable Harikaran  PW-12  and  accordingly,  permission  has been sought.

It has been stated that concerned document and report since  were  received  in  delay  and  it  was  filed  as earliest and by virtue of this correspondence relating to above are being filed now.  It  is  mentioned that DNA report was received on 01.03.2013 itself hence considering the reason so disclosed during arguments defense has not raised any effective objection hence, application stands allowed and concerned documents are taken on record and witness K.K. Mishra PW-13 and  Hari  Karan  PW-12  are  permitted  to  be  re- examined.

It has been stated by the public prosecutor that above witnesses  are  present  today,  hence,  above  both  the witnesses were additionally examined with consent of defense  and  they  were  discharged  after  re- examination.   Prosecution  stated  not  to  adduce any other evidence as such closed its evidence.

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The packet of article so filed is in sealed condition, which  was  opened  in  presence  of  both  the  parties. After evidence let same be deposited in malkhana by duly sealing with memo of property.

In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on  entering  in  defense,  the  accused  stated  not  to adduce  any  evidence  in  defense  nor  any  written statement was filed under Section 232(2) Cr.P.C. and as such defense closed its evidence.  Put up again for final arguments.

Sd/- Sessions Judge and Special Judge

Under Protection of Children from Sexual Offences Act, Khandwa

Again

State through Shri B.L. Mandloi P.P.

Accused  Anokhilal  present  from  judicial  custody. Shri D.S. Chauhan, Advocate present on his behalf.

Heard  final  arguments.  Put  up  on  04.03.2013  for judgment.

Sd/- Sessions Judge and Special Judge

Under Protection of Children from Sexual Offences Act, khandwa

(v) 4.3.2013

State through Shri B.L. Mandloi P.P.

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Accused  Anokhilal  present  from  judicial  custody. Shri D.S. Chauhan, advocate present on his behalf. The  judgment  pronounced  and  signed  separately  in open court, according to which accused was convicted under  Section  363,  366,  377,  376(2)(f)  and Section 302 IPC read with Section 6 of Protection of Children from Sexual Offences Act, 2012.

Arguments were heard on the question of sentence.  It was informed to  both the  parties  that  if  they wish, they  may  adduce  evidence  regarding  order  of sentence. It was stated by the prosecution that due to framing charge  under  Section  211(7)  Cr.P.C.  regarding previous  conviction  of  accused,  it  has  already adduced  evidence  at  evidence  stage  regarding previous  conviction  of  accused  and  his  previous criminal  conduct,  hence  now  he  does  not  want  to adduce evidence regarding conviction. On the  other  hand,  learned counsel  for  the  defense Shri  D.S.  Chauhan he has  stated that  during whole trial  not  any  member  of  family  of  accused  has appeared  and  in  regard  to  his  conduct  in  jail  the prosecution itself has already adduced certificate etc. hence he stated not to adduce any evidence regarding order of sentence, nevertheless both the parties were informed that if they wish to adduce any evidence in this regard, then they may do so.  By giving above information  to  both  the  parties,  detailed  arguments were heard regarding order of sentence.  Put up again after some time for order of sentence.

Sd/- Sessions Judge and special Judge

Under Protection of Children from Sexual Offences Act, Khandwa

Again

State through Shri B.L. Mandloi P.P.

Accused  Anokhilal  present  from  judicial  custody. Shri D.S. Chauhan, Advocate present on his behalf.

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Both  the  parties  again  stated  not  to  adduce  any evidence regarding order of sentence, hence order of sentence  was  pronounced  separately  in  open  court according  to  which  accused  is  convicted  and sentenced as follows regarding charges:

No. Offence U/s

Sentence  of rigorous imprisonment

Fine In  default  of payment  of fine, additional sentence  of rigorous imprisonment

1. 302 IPC Death Sentence

- -

2. 363 IPC Seven years 1000/- One month 3. 366 IPC Seven years 1000/- One month 4. 377 IPC Seven years 1000/- One month 5. 376(2)

IPC Life imprisonment

1000/- One month

Due to being similar act, no separate sentence is being awarded for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012.

By preparing warrant of conviction in this regard let accused be sent to jail.

The accused has been sentenced to death also and in above regard according to Section 366 Cr.P.C. it has also been directed that death penalty be not executed so long as it  is not confirmed by the Hon’ble High Court, hence in that regard according to provision of Section  366(2)  Cr.P.C.  warrant  of  handing  over accused sentenced to death to taken in custody of jail, is  attached  separately  with  warrant.   Copy  of judgment  is  given  to  accused  and  according  to provisions  of  section  363  (4)  Cr.P.C.  accused  is informed  that  he  has  right  to  appeal  and period  of appeal.

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Let entire record of this case be sent for placing before the Hon’ble High Court forthwith for confirmation of death penalty as per provisions of Section 366 Cr.P.C.

Sd/- Sessions Judge and Special Judge

Under Protection of Children from Sexual Offences Act, Khandwa

(G) In its  judgment  and order  dated 4.3.2013,  the Trial  Court

accepted the case of the prosecution and stated:-  

“65. From above analysis it is clear that present case having similar facts like judicial citation of Rajendra Prahladrao Vasnic is in the category of ‘rarest of rare’ case and excess to that in the present case accused is previous convict in sexual offence of similar nature. Hence, in view of above analysis imposing punishing of only imprisonment for life cannot be adequate and death sentence is necessary.

66. Accused  Anokhilal  son  of  Sitaram  has  been convicted  in  charge  of  offence  punishable  under Section  363,  366,  376(2)(f),  377  and  302  IPC and Section  6  of  Protection  of  Children  from  Sexual Offences  Act,  2012 hence,  according to  analysis  so done:

(one) for the offence under Section302 IPC accused Anokhilal son of Sitaram is awarded ‘death sentence’. By tying knot in neck, he be hanged till his death.  It is  also  directed  that  above  death  sentence  be  not executed unless it is confirmed by the Hon’ble High Court.

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(two)  For  the  offence  under  Section  363  IPC  the accused  is  sentenced  to  seven  years  rigorous imprisonment  with  fine  of  Rs.1000/-,  in  default  of payment of fine, he is directed to undergo another one month rigorous imprisonment.

(three) For the offence under Section 366 IPC, the accused  is  sentenced  to  seven  years  rigorous imprisonment  with  fine  of  Rs.1,000/-,  in  default  of payment of fine,  the accused is  directed to undergo another one month rigorous imprisonment.  

(four) For  the  offence under  Section 376 (2)(f) IPC the accused is sentenced to imprisonment for life with fine of Rs.1000/-, in default of payment of fine, he is directed to undergo another one month rigorous imprisonment.

(five) For the offence under Section 377 IPC the accused is sentenced to imprisonment for seven years with fine of Rs.1,000/- in default of payment of fine, he is directed to undergo another one month rigorous imprisonment.

(Six) Considering the provisions of Section 42 of  Act,  where  for  similar  act  the  accused has  been convicted under the sections of Act and IPC, then he should  be  sentenced  for  the  offences  having  larger punishment and in this regard principle of Section 71 IPC is also perusable and in Section 376(2)(f) IPC and in  Section  6  of  the  Act,  there  is  provision  of punishment for imprisonment for life and minimum sentence  of  10  yrs  rigorous  imprisonment  and  for similar act, order of sentence is being passed for the offence under Section 376(2) (f) and Secton 377 IPC also, hence separate order of sentence for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 is not being passed.

All  the  sentences  of  imprisonment  shall  run concurrently.

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67. The  accused  is  in  detention  since  04.02.2013 hence, let certificate of the period undergone by him in detention during trial be attached with warrant as per provisions section 428 Cr.P.C. which may be used for  setting  off  under  Section  428  Cr.P.C.  or  as  per requirement  for  computing  sentence  as  provided  in Section 433 Cr.P.C.

68. On payment of fine, entire amount of fine means Rs.4000/-  unless  otherwise  directed,  after  expiry  of period of appeal be paid to Shantubai PW-3 mother of deceased as compensation.

69. According to  provisions  of  Section 366 Cr.P.C. let entire records and proceeding of the case be placed before  the  Hon’ble  High  Court,  Jabalpur  for confirmation of death sentence and death sentence be not  executed  till  it  is  confirmed  by  the  Hon’ble Madhya Pradesh High Court and for keeping accused in custody in above period let he be handed over with warrant in above regard for jail custody.

70. I appreciate for assistance of all where in regard to  incident  which  happened  in  mid  night  of  30-31 January,  after  arrest  of  accused  on  04.02.2013, completing  investigation  immediately  charge-sheet was  submitted  on  18th February  and  to  prosecution which ensured quick trial by placing entire evidence from 19 February to 02 March, 2013 and specially for assistance  of  defence  because  disposal  of  case  is ensured within only 1 month of incident only because of above assistance and completing trial  only in 12 working days could be possible.”

(H) Criminal Reference No.4/2013 was accordingly registered in

the High Court for confirmation of death sentence. The appellant also

preferred Criminal Appeal No.748 of 2013 challenging his conviction

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and sentence.  The High Court by its  judgment and order presently

under appeal, affirmed the view taken by the Trial Court and upheld

the death sentence and other sentences imposed by the Trial Court. It

was observed by the High Court as under:-

“8. ……. The victim was, thus, last seen alive with the accused by Kirti  Bai  whose evidence discloses  that the victim and accused were seen together at the point of  time in proximity  with the  time and date  of  the commission of crime. Also after the incident no one saw the accused alone because he had absconded. We are,  therefore,  of  the  view that  the  prosecution  has successfully established the last seen theory beyond any reasonable doubt against the accused.   9. We also find that the report, Ex.58, of the DNA Finger Printing Unit completely connects the accused with  the  commission  of  crime.  The  report  clearly states that the hairs seized from the fist of victim and the skin found in the cut-nails of victim belonged to the accused. The report further states that the semen found on the paijama of victim was of the accused. Not only this, according to the report, blood found on the  underwear  of  accused  was  of  the  victim.  The cremation of the body of victim was done on 1.2.2013 whereas the accused was arrested on 4.2.2013. There was, therefore, no possibility of the blood of victim having  been  put  on  the  seized  underwear  of  the accused.

…   … …

11. The  evidence  on  record  clearly  establishes  that the accused was close to the family of Ramlal and the victim  trusted  him.  She,  therefore,  on  his  asking immediately  rushed  to  buy  “bidi”  for  him  from  a kirana  shop.  The  accused  then  followed  the  victim

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with a premeditated mind to commit the crime. The accused, taking advantage of the trust of victim, after kidnapping  and  subjecting  her  to  brutal  rape  and carnal sex most gruesomely throttled her to death. The numerous injuries on the body of victim testify this fact. He even dumped the body of victim in the field. Earlier also, the accused was convicted vide judgment dated 21.10.2010,  Ex.49,  for  committing  carnal  sex with a small  boy.  Thus,  an innocent hapless girl  of nine  years  was  subjected  to  a  barbaric  treatment showing  extreme  depravity  and  arouses  a  sense  of revulsion in the mind of a common man. We feel that the  crime  committed  satisfies  the  test  of  “rarest  of rare” cases. We, therefore, uphold the death sentence and also other sentences imposed by the trial court.”

3. During the pendency of these appeals in this Court, it was observed

by this Court in its Order dated 12.12.2018 as under:- “One of the issues that has arisen in the present case is compliance  with  the  statutory  timeframe  fixed  by proviso to Section 309(1)of the Cr.P.C.(as amended in 2018). That Section provides a time limit of 60 days within which the trial is supposed to be completed. In this context, we consider it appropriate to explore the possibility  of  using  video-conferencing  for  the purpose of recording evidence since it is believed that such use will eliminate the time taken for summoning the witnesses to Court.  

However,  an  apprehension is  expressed at  the  Bar that  the  video-conferencing  facility  is  not  always available throughout the trial in various parts of the country and in the present state of the art, it cannot be wholly  relied  on.  Since,  this  appears  to  be surmountable,  we  consider  it  appropriate  to  hear National Informatics Centre (NIC) and Department of Justice in the matter. Accordingly, issue notice … …”

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4. When these appeals came up for final hearing, certain issues were

highlighted  by  Mr.  Siddharth  Luthra,  learned  Senior  Advocate  who

appeared for the appellant on behalf of the Supreme Court Legal Services

Authority. According to him, the way the trial was conducted, there was no

fairness at all and the interest of the appellant-accused was put to prejudice

on more than one count.  The principal submission was recorded in the

order dated 10.12.2019 passed by this Court as under:-

“In  the  submission  of  the  learned  Senior  Counsel, following aspects are, therefore, very clear:

a) The learned Amicus Curiae came to be appointed the  same  day  when  the  charges  were  framed, which effectively means that the learned Amicus Curiae  did  not  have  sufficient  opportunity  to study the matter nor did he have any opportunity to have any interaction with the accused to seek appropriate instructions;

The other issues noted in the Order dated 12.12.2018 were referred

to but it was observed:-

“As presently advised, we will deal first with the issue pertaining  to  the  present  trial  and  whether  the approach adopted by the  Trial  Court  in  the  present matter  could be accepted or whether  there  was any infraction or error on the part  of the Trial  Court  in adopting the approach in the present matter.   Other issues,  namely  applicability  of  Section  309  and advisability  of  having  video-conferencing  in  the

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matter  will  be  dealt  with  at  a  later  stage  and  the consideration of  these  issues,  for  the time being,  is deferred.”

5. The consideration at present is thus confined to the issue as stated

above.   

6. In support of his submissions, Mr. Sidharth Luthra, learned Senior

Advocate, relied upon certain decisions of this court and, particularly, in

Bashira vs. State of U.P.2 and Mohd. Hussain Alias Julfikar Ali vs. State

(Government of NCT of Delhi)3.   Mr. Varun Chopra, Deputy Advocate

General appearing for the State, however, submitted that the evidence on

record, without any doubt, pointed towards the guilt of the accused and as

such the order of conviction recorded by the Courts below was correct and

did not call for any interference.  

7. In  Bashira2, the Trial Court had fixed 28th February, 1967 as the

date for starting the actual trial and, on that very day, before beginning the

trial, an  Amicus Curiae was appointed to represent the accused.  On that

very day, the Trial Court amended the charge to which the accused pleaded

not guilty and two principal  prosecution witnesses were examined. The

2  (1969) 1 SCR 32 : AIR 1968 SC 1313 3  (2012)  9 SCC 408

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other witnesses were examined on 1st March, 1967 and the accused was

also examined under Section 342 of the Code of Criminal Procedure, 1898

(equivalent to Section 313 of the Code of Criminal Procedure, 1973 or

“the Code”, for short). The case was thereafter fixed on 10th March, 1967

for arguments, on which date the Amicus Curiae presented an application

for  recall  of  one  of  the  prosecution  witnesses  for  further  cross-

examination. The application was rejected. Arguments were then heard on

the  same  day  and  the  judgment  was  delivered  on  13th March,  1967

convicting  the  accused  for  the  offence  under  Section  302  IPC  and

sentencing him to death. In the backdrop of these facts, the submissions of

the Amicus Curiae appearing in this Court were recorded as under:-  

“2. In this case, the principal ground urged on behalf of the appellant raises an important question of law. Learned  counsel  appearing  for  the  appellant emphasised the  circumstance that  the amicus curiae counsel to represent the appellant was appointed by the Sessions Judge on 28th February, 1967, just when the  trial  was  about  to  begin  and  this  belated appointment of the counsel deprived the appellant of adequate legal aid, so that he was unable to defend himself  properly.  It  was  urged  that  the  procedure adopted by the court was not in accordance with law, so  that,  if  the  sentence  of  death  is  carried  out,  the appellant will be deprived of his life in breach of his fundamental right under Article 21 of the Constitution which lays down that no person shall be deprived of his  life  or  personal  liberty,  except  according  to procedure established by law.”

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The submissions were dealt with as under:-

“8. There is nothing on the record to show that, after his  appointment  as  counsel  for  the  appellant,  Sri Shukla  was  given  sufficient  time  to  prepare  the defence.  The  order-sheet  maintained  by  the  Judge seems  to  indicate  that,  as  soon as  the  counsel  was appointed, the charge was read out to the accused and, after  his  plea  had  been  recorded,  examination  of witnesses began. The counsel, of course, did his best to  cross-examine the  witnesses  to  the  extent  it  was possible for him to do in the very short time available to him. It is true that the record also does not contain any  note  that  the  counsel  asked  for  more  time  to prepare  the  defence,  but  that,  in  our  opinion,  is immaterial. The Rule casts a duty on the court itself to grant sufficient time to the counsel for this purpose and  the  record  should  show  that  the  Rule  was complied with by granting him time which the court considered sufficient  in  the  particular circumstances of the case. In this case, the record seems to show that the  trial  was  proceeded  with  immediately  after appointing the amicus curiae counsel and that, in fact, if any time at all was granted, it was nominal. In these circumstances,  it  must  be  held  that  there  was  no compliance with the requirements of this Rule.

9. In this connection, we may refer to the decisions of two  of  the  High  Courts  where  a  similar  situation arose.  In  Re:  Alla  Nageswara  Rao,  Petitioner4

reference  was  made  to  Rule  228  of  the  Madras Criminal  Rules  of  Practice  which  provided  for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could  be  passed.  It  was  held  by  Subba  Rao,  Chief Justice as he then was, speaking for the Bench, that:

4 AIR 1957 AP 505

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“a mere formal compliance with this Rule will not carry out the object underlying the Rule. A sufficient time should be given to the advocate engaged on behalf  of  the  accused to  prepare his case and conduct it on behalf of his client. We  are  satisfied  that  the  time  given  was insufficient and, in the circumstances, no real opportunity was given to the accused to defend himself”.

This  view  was  expressed  on  the  basis  of  the  fact found  that  the  advocate  had  been  engaged  for  the accused  two  hours  prior  to  the  trial.  In  Mathai Thommen v. State5 the Kerala High Court was dealing with  a  Sessions  trial  in  which  the  counsel  was engaged to defend the accused on 2nd August, 1958, when  the  trial  was  posted  to  begin  on  4th  August, 1958,  showing  that  barely  more  than  a  day  was allowed  to  the  counsel  to  get  prepared  and  obtain instructions  from  the  accused.  Commenting  on  the procedure  adopted by the  Sessions  Court,  the  High Court finally expressed its opinion by saying:

“Practices like this would reduce to a farce the engagement of counsel under Rule 21 of the Criminal  Rules  of  Practice  which  has  been made  for  the  purpose  of  effectively  carrying out the duty cast on courts of law to see that no one is  deprived of  life  and liberty  without  a fair and reasonable opportunity being afforded to  him  to  prove  his  innocence.  We  consider that  in  cases  like  this  counsel  should  be engaged at least some 10 to 15 days before the trial and should also be furnished with copies of the records.”

In our opinion, no hard and fast rule can be laid down as  to  the  time  which  must  elapse  between  the appointment of the counsel and the beginning of the

5  AIR 1959 Kerala 241

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trial; but, on the circumstances of each case, the Court of Session must ensure that  the time granted to the counsel is sufficient to prepare for the defence. In the present  case,  when  the  counsel  was  appointed  just before the trial started, it is clear that there was failure to  comply  with  the  requirements  of  the  rule  of procedure in this behalf.

(Emphasis by us)

It was also stated that the violation of the mandate of the concerned

Rule  would  amount  to  breach  of  rights  conferred  by  Article  21  of  the

Constitution as under:

“In these circumstances, conviction of the appellant in a trial held in violation of that Rule and the award of sentence of death will result in the deprivation of his life in breach of the procedure established by law.”

The operative part of the decision was :-

 “As a consequence, we set aside the conviction and sentence of the appellant.  Since we are holding that the  conviction  is  void  because  of  an  error  in  the procedure  adopted  at  the  trial,  we  direct  that  the appellant  shall  be  tried  afresh  for  this  charge  after complying with the requirements of law, so that the case  is  remanded  to  the  Court  of  Session  for  this purpose.”

8.   In Hussainara Khatoon and others (IV) v. Home Secretary, State

of Bihar, Patna6 it was observed as under:  

6 (1980) 1 SCC 98

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“7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows:

“39-A. Equal justice and free legal aid.—The State  shall  secure  that  the  operation  of  the legal system promotes justice, on a basis of equal  opportunity,  and  shall,  in  particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities  for  securing  justice  are  not denied to any citizen by reason of economic or other disabilities.” (emphasis added)

This article also emphasises that free legal service is an unalienable element of “reasonable, fair and just” procedure  for  without  it  a  person  suffering  from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal  services  is,  therefore,  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.  This  is  a constitutional  right  of  every  accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado  situation  and  the  State  is  under  a 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. …….”   

9.   The developments  in  the matter  of  providing free Legal  Aid as

translated in various schemes and dealt with in the decisions of this Court,

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were noted in  Rajoo Alias  Ramakant v.  State  of  Madhya Pradesh7 as

under:

“6. By  the  Forty-second  Amendment  to  the Constitution,  effected  in  1977,  Article  39-A  was inserted.  This  article  provides  for  free  legal  aid  by suitable  legislation  or  schemes  or  in  any  other manner,  to  ensure  that  opportunities  for  securing justice  are  not  denied  to  any  citizen  by  reason  of economic or other disabilities.

7. Article 39-A of the Constitution reads as follows:

“39-A. Equal justice and free legal aid.—The State shall secure that the operation of the legal system promotes  justice,  on a basis  of  equal opportunity,  and  shall,  in  particular,  provide free  legal  aid,  by  suitable  legislation  or schemes  or  in  any other  way,  to  ensure  that opportunities  for  securing  justice  are  not denied to any citizen by reason of economic or other disabilities.”

8. Subsequently, with the intention of providing free legal aid, the Central Government resolved (on 26-9- 1980)  and  appointed  the  “Committee  for Implementing  the  Legal  Aid  Schemes”.  This Committee was to monitor and implement legal aid programs on a uniform basis throughout the country in fulfilment of the constitutional mandate.

9. Experience gained from a review of the working of the Committee eventually led to the enactment of the Legal Services Authorities Act, 1987 (for short “the Act”).

7 (2012) 8 SCC 553

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10. The Act provides, inter alia, for the constitution of a National Legal Services Authority, a Supreme Court Legal  Services  Committee,  State  Legal  Services Authorities  as  well  as  Taluk  Legal  Services Committees.  Section  12  of  the  Act  lays  down  the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services,  if  he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will  be  entitled  to  legal  services  provided  the authority concerned is satisfied that such person has a prima facie case to prosecute or defend.

11. It is important to note in this context that Sections 12  and  13  of  the  Act  do  not  make  any  distinction between  the  trial  stage  and  the  appellate  stage  for providing legal services.  In other words,  an eligible person is entitled to legal services at any stage of the proceedings  which  he  or  she  is  prosecuting  or defending. In fact the Supreme Court Legal Services Committee  provides  legal  assistance  to  eligible persons in this Court. This makes it abundantly clear that  legal  services  shall  be  provided  to  an  eligible person at all stages of the proceedings, trial as well as appellate. It is also important to note that in view of the  constitutional  mandate  of  Article  39-A,  legal services or legal aid is provided to an eligible person free of cost.

Decisions of this Court

12. Pending  the  enactment  of  the  Legal  Services Authorities  Act,  the  issue  of  providing  free  legal services or free legal aid or free legal representation (all terms being understood as synonymous) came up for consideration before this Court.

13. Among the  first  few decisions  in  this  regard  is Hussainara Khatoon (4) v. Home Secretary,  State of

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Bihar,  Patna6.  In  that  case,  reference  was  made  to Article 39-A of the Constitution and it was held that (SCC  p.  105,  para  7)  free  legal  service  is  an inalienable  element  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 [of the Constitution]”.  It  was noted that:  “This is  a constitutional  right  of  every  accused person who is unable  to  engage  a  lawyer  and  secure  [free]  legal services  on  account  of  reasons  such  as  poverty, indigence or  incommunicado situation.” It  was held that the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, subject of course to the accused person not objecting to the providing of a lawyer.

14. The  essence  of  this  decision  was  followed  in Khatri and others (II) v. State of Bihar8. In that case, it  was  noted  that  the  Judicial  Magistrate  did  not provide  legal  representation  to  the  accused  persons because they did not ask for it. This was found to be unacceptable. This Court went further and held that it was the obligation of the Judicial  Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that the right to free legal services would be illusory unless the Magistrate or  the  Sessions  Judge  before  whom the  accused  is produced  informs  him  of  this  right.  It  would  also 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  thereby  rendering  the  constitutional mandate a mere paper promise.

15. Suk Das v. Union Territory of Arunachal Pradesh9

reiterated  the  requirement  of  providing  free  and adequate  legal  representation  to  an  indigent  person and a person accused of an offence. In that case, it

8 (1981) 1 SCC 627 9 (1986) 2 SCC 401

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was reiterated that an accused need not ask for legal assistance—the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that (SCC p. 407, para 5) it was now

“settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his  life  or  personal  liberty  and  this fundamental  right  is  implicit  in  the requirement  of  reasonable,  fair  and  just procedure  prescribed  by  Article  21  [of  the Constitution]”.

16. Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held  that  there  was  a  violation  of  the  fundamental right  of  the  accused  under  Article  21  of  the Constitution.  The  trial  was  held  to  be  vitiated  on account  of  a  fatal  constitutional  infirmity  and  the conviction and sentence were set aside.

17. We propose to briefly digress and advert to certain

observations made, both in Khatri (2)8 and Suk Das9

In both cases, this Court carved out some exceptions in  respect  of  grant  of  free  legal  aid  to  an  accused person. It was observed that: (SCC p. 632, para 6)

“6. … 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.”

We have some reservations whether such exceptions can be carved out  particularly  keeping in  mind the

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constitutional  mandate  and  the  universally  accepted principle  that  a  person  is  presumed  innocent  until proven guilty. If such exceptions are accepted, there may be a tendency to add some more, such as in cases of  terrorism,  thereby  diluting  the  constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution. However, we need not say anything more on this subject since the issue is not before us.

18. The above discussion conclusively shows that this Court has taken a rather proactive role in the matter of providing free legal assistance to persons accused of an offence or convicted of an offence.”

10.  In Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of

Delhi)3 one of the submissions advanced on behalf of the accused was that

he was denied right of a counsel and thus was not given fair and impartial

trial.  H.L. Dattu, J. (as the learned Chief Justice then was) in para 7 of his

decision quoted orders passed by the Trial Court and in paras 10 to 12

observed that the evidence of 56 witnesses was recorded by the Trial Court

without providing a counsel to the appellant-accused.    It was stated: -

“18. Section 311 of  the  Code empowers  a criminal court to summon any person as a witness though not summoned as a witness or recall and re-examine any person already examined at any stage of any enquiry, trial or other proceeding and the court shall summon and examine or recall and re-examine any such person if  his  evidence  appears  to  be  essential  to  the  just decision of the case.

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19. If  the  appellate  court  in  an  appeal  from  a conviction under Section 386 orders the accused to be retried, on the matter being remanded to the trial court and on retrial of the accused, such trial court retains the  power  under  Section  311  of  the  Code  unless ordered otherwise by the appellate court.

20. In Machander v. State of Hyderabad10, it has been stated by this Court that while it is incumbent on the court to see that no guilty person escapes but the court also  has  to  see  that  justice  is  not  delayed  and  the accused  persons  are  not  indefinitely  harassed.  The Court further stated that the scale must be held even between the prosecution and the accused.

21. In  Gopi Chand v.  Delhi  Admn11,  a  Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried  as  a  warrant  case  by  following  the  procedure prescribed in the Criminal Procedure Code, 1898 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution  Bench  held  that  having  regard  to  the nature  of  the  charges  framed and the  character  and volume of evidence led, the appellant was prejudiced; the trial of the three cases against the appellant was vitiated  and  the  orders  of  conviction  and  sentence were  rendered  invalid.  The  Court,  accordingly,  set aside  the  orders  of  conviction  and  sentence.  While dealing with the question as to what final order should be passed in the appeals, the Constitution Bench held as under: (AIR pp. 619-20, para 29)

10 AIR 1955 SC 792 : (1955) 2 SCR 524 11 AIR 1959 SC 609 : 1959 Crl. L. J. 782

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“29.  …  The  offences  with  which  the appellant  stands  charged  are  of  a  very serious nature; and though it is true that he has had to undergo the ordeal of a trial and has  suffered  rigorous  imprisonment  for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against  the appellant,  the ends of justice require that we should direct that he should be tried for the said offences de  novo  according  to  law.  We also  direct that the proceedings to be taken against the appellant  hereafter  should  be  commenced without  delay  and  should  be  disposed  as expeditiously as possible.”

22. A  two-Judge  Bench  of  this  Court  in  Tyron Nazareth v.  State  of  Goa12,  after  holding  that  the conviction of the appellant was vitiated as he was not provided with legal aid in the course of trial, ordered retrial. The brief order reads as follows: (SCC p. 322, para 2)

“2.  We have heard the learned counsel for the  State.  We  have  also  perused  the decisions of this Court in Khatri (2) v. State of Bihar8 and  Sukh Das v.  UT, Arunachal Pradesh9. We find that the appellant was not assisted by any lawyer and perhaps he was not  aware  of  the  fact  that  the  minimum sentence provided under the statute was 10 years’ rigorous imprisonment and a fine of Rs 1 lakh. We are, therefore, of the opinion that in the circumstances the matter should go back to the tribunal. The appellant if not represented by a lawyer may make a request to the court  to provide him with a lawyer under  Section  304  of  the  Criminal Procedure Code or under any other legal aid

12 1994 Supp (3) SCC 321

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scheme and the court may proceed with the trial  afresh  after  recording  a  plea  on  the charges. The appeal is allowed accordingly. The order of conviction and sentence passed by the Special Court and confirmed by the High Court are set aside and a de novo trial is ordered hereby.”

23. This Court in S. Guin v. Grindlays Bank Ltd.13 was concerned  with  the  case  where  the  trial  court acquitted  the  appellants  of  the  offence  punishable under Section 341 IPC read with Section 36-AD of the Banking Regulation Act, 1949. The charge against the  appellants  was  that  they  had  obstructed  the officers of the Bank, without reasonable cause, from entering the premises of a branch of the Bank and also obstructed the transaction of normal banking business. Against their acquittal, an appeal was preferred before the High Court which allowed it after a period of six years and remanded the case for retrial. It was from the order of remand for retrial that the matter reached this Court. This Court while setting aside the order of remand in para 3 of the Report held as under: (SCC pp. 655-56)

“3. After going through the judgment of the Magistrate  and of  the  High Court  we feel that  whatever  might  have  been  the  error committed  by  the  Magistrate,  in  the circumstances  of  the  case,  it  was  not  just and  proper  for  the  High  Court  to  have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years  before  the  judgment  of  the  High Court. The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in  serious  prejudice  to  the  appellants.  We are  of  the  view that  having  regard  to  the

13 (1986) 1 SCC 654

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nature  of  the  acts  alleged  to  have  been committed  by  the  appellants  and  other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 42 of the  Criminal  Procedure  Code  even  if  for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven  years  after  the  alleged  incident  is bound to result in harassment and abuse of judicial process.”

24. The Constitution  Bench of  this  Court  in  Abdul Rehman Antulay v. R.S. Nayak14 considered right of an accused to speedy trial in light of Article 21 of the Constitution and various provisions of the Code. The Constitution  Bench  also  extensively  referred  to  the earlier decisions of this Court in Hussainara Khatoon (1) v.  State  of  Bihar15,  Hussainara  Khatoon  (3) v. State of Bihar16,  Hussainara Khatoon (4) v.  State of Bihar6 and  Raghubir  Singh v.  State  of  Bihar17 and noted that the provisions of the Code are consistent with  the  constitutional  guarantee  of  speedy  trial emanating from Article 21. In para 86 of the Report, the Court framed guidelines. Sub-paras (9) and (10) thereof read as under: (Abdul Rehman Antulay case14, SCC p. 272)

“86.  (9)  Ordinarily  speaking,  where  the court comes to the conclusion that right to speedy  trial  of  an  accused  has  been infringed the charges or the conviction,  as the case may be, shall be quashed. But this is not the only course open. The nature of the  offence  and  other  circumstances  in  a given  case  may  be  such  that  quashing  of

14 (1992) 1 SCC 225 15 (1980) 1 SCC 81 16 (1980) 1 SCC 93 17 (1986) 4 SCC 481

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proceedings  may not  be  in  the  interest  of justice. In such a case, it is open to the court to  make  such  other  appropriate  order— including  an  order  to  conclude  the  trial within  a  fixed  time  where  the  trial  is  not concluded or  reducing the  sentence where the trial has concluded—as may be deemed just  and equitable  in  the  circumstances  of the case.

(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of  complaint  of  denial  of  right  to  speedy trial,  it  is  primarily  for  the  prosecution  to justify and explain the  delay.  At the  same time, it is the duty of the court to weigh all the  circumstances  of  a  given  case  before pronouncing  upon  the  complaint.  The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment.  Nor do we think  that  not  fixing  any  such  outer  limit ineffectuates  the  guarantee  of  right  to speedy trial.”

25. In Kartar Singh v. State of Punjab18, it was stated by this Court that no doubt liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system  of  judicial  administration  and  indulge  in private retribution. In that case, the Court was dealing with a case under the TADA Act.”

18  (1994) 3 SCC 569

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It was thus held that the impugned judgment was required to be

reversed and the matter was to be remanded for fresh trial.  C.K. Prasad, J.

concurred  with  H.L.  Dattu,  J.  and  accepted  that  the  Judgments  of

conviction and sentence  be  set  aside  as  the  appellant-accused was not

given assistance of a lawyer to defend himself during trial. However, in

his view, the case was not required to be remanded for fresh trial and the

benefit of complete acquittal be given to the appellant-accused.   

 On this difference of opinion, the matter went to a Bench of three

Judges which accepted the view taken by H.L. Dattu, J. and directed  de

novo trial.  It was observed3:-  

“15. Section 304 of the Code mandates legal aid to the  accused at  State’s  expense  in  a  trial  before  the Court of Session where 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.

… … …

38. In  Best  Bakery case19,  the  Court  also made the following observations: (SCC p. 187, paras 38-40)

“38.  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

19 Zahira Habibulla H. Sheikh  vs.  State of Gujarat – (2004) 4 SCC 158

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to the discovery of the fact 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.

39.  Failure to accord fair  hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real  one,  not  sham  or  a  mere  farce  and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be  vitiated  and  violated  by  an  overhasty, stage-managed, tailored and partisan trial.

40.  The  fair  trial  for  a  criminal  offence consists not only in technical observance of the  frame  and  forms  of  law,  but  also  in recognition  and  just  application  of  its principles in substance, to find out the truth and prevent miscarriage of justice.”

The Bench emphasised that: (Best Bakery case19, SCC p. 192, para 52)

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“52. Whether a retrial under Section 386 of the Code or taking up of additional evidence under Section 391 of the Code [in a given case] is the proper procedure will depend on the facts and circumstances of each case for which  no  straitjacket  formula  of  universal and  invariable  application  can  be formulated.”

 40. “Speedy trial” and “fair trial” to a person accused of a crime are integral  part  of  Article 21.  There is, however,  qualitative  difference between the  right  to speedy  trial  and  the  accused’s  right  of  fair  trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal  trial  has  to  be  seen  in  the  facts  and circumstances  of  such  case.  Mere  lapse  of  several years  since  the  commencement  of  prosecution  by itself  may  not  justify  the  discontinuance  of prosecution  or  dismissal  of  indictment.  The  factors concerning the accused’s right to speedy trial have to be  weighed  vis-à-vis  the  impact  of  the  crime  on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does  not  preclude  the  rights  of  public  justice.  The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the  right  of  the  accused  to  speedy  trial  and  if  the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the  prosecution  may  be  brought  to  an  end.  These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.”

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11. In Ankush Maruti Shinde and others  vs.  State of Maharashtra20

the High Court had upheld the conviction and death sentence imposed

upon accused nos. 1, 2 and 4 while accused nos. 3, 5 and 6 were sentenced

to imprisonment for life.  The appeals were preferred by accused nos. 1, 2

and 4 against their conviction and sentence while Criminal Appeal Nos.

881-882  of  2009 were  preferred  by the  State  seeking  enhancement  of

sentence of life imprisonment to death sentence in respect of accused nos.

3, 5 and 6.  In the Appeals preferred by the State, notice was served upon

accused nos. 3, 5 and 6 only on 6.12.2008. However, even before service

of such notice,  the hearing in respect  of  all  the appeals had begun on

04.12.2008.  On 10.12.2008 the learned counsel who was appearing for

the accused nos. 1, 2 and 4 was appointed as Amicus Curiae to represent

accused nos. 3, 5 and 6.  The hearing was concluded the same day and the

judgment  was  reserved.   By  its  decision  dated  30.04.2009  this  Court

allowed the Appeals preferred by the State and imposed death sentence

upon accused  nos.  3,  5  and  6  while  confirming the  death  sentence  in

respect of accused  nos. 1, 2 and 4.  All six accused were thus sentenced to

death.   

20 (2009) 6 SCC 667

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Thereafter,  Review  Petition  (Crl.)Nos.34-35  of  2010  were

preferred by accused nos. 1, 2 and 4 while Review Petition (Crl.)Nos.18-

19 of 2011 were preferred by accused nos. 3, 5 and 6.  While allowing

Review Petitions by its Order dated 31.10.201821,  this Court observed:-

“From the above narration of facts, it is evident that Accused  Nos.3,  5  and  6  had  no  opportunity  to  be heard by the Bench, before the appeals filed by the State  of  Maharashtra  for  enhancement  of  sentence were  decided.   They  have  been  deprived  of  an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence  to  the  appeals  filed  by  the  State  for enhancement.”

This  Court,  therefore,  recalled  the  Judgment  and  order  dated

30.04.2009 and the Criminal Appeals were restored to the file of this Court

to be considered on merits.   

Subsequently,  a  Bench  of  three  Judges  by  its  decision  dated

05.03.201922 acquitted  the  concerned  accused  of  the  charges  levelled

against  them.  This  Court  also dismissed the appeals  preferred by the

State for enhancement of sentence qua accused Nos.3, 5 and 6.

21  Ambadas Laxman Shinde and others  vs.  State of Maharashtra - (2018) 14 SCALE  730 = (2018) 18 SCC 788 22 2019 SCC Online SC 317  - Ankush Maruti Shinde and others  vs.  State of       

Maharashtra

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12. In  Imtiyaz  Ramzan  Khan   vs.   State  of  Maharashtra23 it  was

observed by this Court:-

“4.  We  now come to  the  common feature  between these two matters.  Mr. Shikhil Suri, learned advocate appeared  for  the  accused  in  both  the  matters.   On previous dates letters were circulated by the learned advocate appearing for the petitioners that the matters be  adjourned  so  as  to  enable  the  counsel  to  make arrangements for conducting videoconferencing with the accused concerned.  The letter further stated that this  exercise  was  made  mandatory  as  per  the directions  of  the  Supreme  Court  Legal  Services Committee.   This  Court  readily  agreed24 and adjourned  the  matters.   On  the  adjourned  date,  we enquired  from  Mr.  Shikhil  Suri,  learned  advocate whether he could successfully get in touch with the accused  concerned.   According  to  the  learned advocate he could not get in touch with the accused in the first matter but could speak with his sister whereas in the second matter he could have video conference with the accused.  

5. In  our  view  such  a  direction  on  part  of  the Supreme  Court  Legal  Services  Committee  is  quite commendable and praiseworthy.   Very often we see that  the  learned  advocates  who  appear  in  matters entrusted  by  the  Supreme  Court  Legal  Services Committee, do not have the advantage of having had a dialogue with either the accused or those who are in the know of the details about the case.  This at times seriously hampers the efforts  on part  of the learned advocates.   All  such  attempts  to  facilitate  dialogue between the counsel and his client would further the cause of justice and make legal aid meaningful.  We, therefore,  direct  all  Legal  Services Authorities/Committees  in  every  State  to  extend similar such facility in every criminal case wherever

23 (2018) 9 SCC 160 24 (2018) 9 SCC 163 – Imtiyaz Ramzan Khan  vs.  State of Maharashtra

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the accused is lodged in jail.  They shall extend the facility of videoconferencing between the counsel on one hand and the accused or anybody in the know of the matter on the other, so that the cause of justice is well served.”

 13. The  following  principles,  therefore,  emerge  from  the  decisions

referred to hereinbove:-

a) Article  39-A  inserted  by  the  42nd amendment  to  the

Constitution,  effected  in  the  year  1977,  provides  for  free

legal aid to ensure that opportunities for securing justice are

not  denied to  any citizen by reason of  economic or  other

disabilities.  The statutory regime put in place including the

enactment  of  the  Legal  Services  Authorities  Act,  1987  is

designed to achieve the mandate of Article 39-A.

b) It has been well accepted that Right to Free Legal Services is

an  essential  ingredient  of  ‘reasonable,  fair  and  just’

procedure for a person accused of an offence and it must be

held  implicit  in  the  right  guaranteed  by  Article  21.   The

extract from the decision of this Court in Best Bakery case19

(as quoted in the decision in  Mohd. Hussain3) emphasizes

that the object of criminal trial is to search for the truth and

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the  trial  is  not  a  bout  over  technicalities  and  must  be

conducted in such manner as will protect the innocent and

punish the guilty.

c) Even before insertion of Article 39-A in the Constitution, the

decision of this Court in Bashira2 put the matter beyond any

doubt and held that the time granted to the Amicus Curiae in

that  matter  to  prepare  for  the  defense  was  completely

insufficient and that the award of sentence of death resulted

in deprivation of the life of the accused and was in breach of

the procedure established by law.  

d) The portion quoted in  Bashira2 from the judgment  of  the

Madras  High  Court  authored  by  Subba  Rao,  J.,  the  then

Chief Justice of the High Court, stated with clarity that mere

formal compliance of the rule under which sufficient time

had to be given to the counsel  to prepare for  the defense

would not carry out the object underlying the rule.  It was

further  stated that  the opportunity must  be real  where the

counsel is given sufficient and adequate time to prepare.

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e) In  Bashira2 as  well  as  in  Ambadas21, making  substantial

progress in the matter on the very day after a counsel was

engaged as  Amicus Curiae, was not accepted by this Court

as compliance of ‘sufficient opportunity’ to the counsel.  

14. In  the  present  case,  the  Amicus  Curiae, was  appointed  on

19.02.2013, and on the same date, the counsel was called upon to defend

the accused at the stage of framing of charges. One can say with certainty

that the  Amicus Curiae did not have sufficient time to go through even

the basic documents, nor the advantage of any discussion or interaction

with the accused, and time to reflect over the matter.  Thus, even before

the  Amicus Curiae could come to grips of the matter, the charges were

framed.   

The concerned provisions viz. Sections 227 and 228 of the Code

contemplate framing of charge upon consideration of the record of the

case  and  the  documents  submitted  therewith,  and  after  ‘hearing  the

submissions of the accused and the prosecution in that behalf’.  If the

hearing for the purposes of these provisions is to be meaningful, and not

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just a routine affair, the right under the said provisions stood denied to the

appellant.

15. In our considered view, the Trial Court on its own, ought to have

adjourned the matter for some time so that the Amicus Curiae could have

had the advantage of sufficient time to prepare the matter.  The approach

adopted by the Trial Court, in our view, may have expedited the conduct

of trial, but did not further the cause of justice. Not only were the charges

framed the same day as stated above, but the trial itself was concluded

within  a  fortnight  thereafter.  In  the  process,  the  assistance  that  the

appellant was entitled to in the form of legal aid, could not be real and

meaningful.

16. There are other issues which also arise in the matter namely that

the examination of 13 witnesses within seven days, the examination of

the accused under the provisions of the Section 313 of the Code even

before the complete evidence was led by the prosecution, and not waiting

for the FSL and DNA reports in the present case.  DNA report definitely

formed the foundation of discussion by the High Court.  However, the

record shows that the DNA report was received almost at the fag end of

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the matter, and after such receipt, though technically an opportunity was

given to the accused, the issue on the point was concluded the very same

day.  The concluding paragraphs of the judgment of the Trial Court show

that  the  entire  trial  was  completed  in  less  than  one  month  with  the

assistance of the prosecution as well as the defense, but, such expeditious

disposal definitely left glaring gaps.   

17. In  V.K.  Sasikala   vs.   State  Represented by  Superintendent  of

Police25 a caution was expressed by this Court as under:-

“23.4   While the anxiety to bring the trial to its earliest  conclusion  has  to  be  shared  it  is fundamental that in the process none of the well- entrenched  principles  of  law  that  have  been laboriously  built  by  illuminating  judicial precedents are sacrificed or compromised.  In no circumstance, can the cause of justice be made to  suffer,  though,  undoubtedly,  it  is  highly desirable that the finality of any trial is achieved in the quickest possible time.”

18. Expeditious disposal is undoubtedly required in criminal matters

and that would naturally be part of guarantee of fair trial.    However, the

attempts to expedite the process should not be at the expense of the basic

elements  of  fairness  and  the  opportunity  to  the  accused,  on  which

postulates, the entire criminal administration of justice is founded.  In the

25 (2012) 9 SCC 771

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pursuit  for  expeditious  disposal,  the  cause  of  justice  must  never  be

allowed to suffer or be sacrificed.  What is paramount is the cause of

justice and keeping the basic ingredients which secure that as a core idea

and ideal,  the process may be expedited,  but  fast  tracking of  process

must never ever result in burying the cause of justice.

19. In  the  circumstances,  going  by  the  principles  laid  down  in

Bashira2, we accept  the submission made by Mr.  Luthra,  the learned

Amicus  Curiae and  hold  that  the  learned  counsel  appointed  through

Legal Services to represent the appellant  in the present  case ought to

have been afforded sufficient  opportunity to study the matter  and the

infraction in that behalf resulted in miscarriage of justice.  In light of the

conclusion that we have arrived at, there is no necessity to consider other

submissions advanced by Mr. Luthra, the learned Amicus Curiae.   

All that we can say by way of caution is that in matters where

death sentence could be one of the alternative punishments, the courts

must be completely vigilant and see that full opportunity at every stage

is afforded to the accused.  

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20. We, therefore, have no hesitation in setting aside the judgments of

conviction and orders of sentence passed by the Trial Court and the High

Court against the appellant and directing de novo consideration.  It shall

be open to the learned counsel  representing the appellant  in the Trial

Court to make any submissions touching upon the issues  (i) whether the

charges framed by the Trial Court are required to be amended or not;  (ii)

whether any of the prosecution witnesses need to be recalled for further

cross-examination; and (iii) whether any expert evidence is required to

be led in response to the FSL report and DNA report.  The matter shall,

thereafter, be considered on the basis of available material on record in

accordance with law.

21. It  must  be  stated  that  the  discussion  by this  Court  was  purely

confined  to  the  issue  whether,  while  granting  free  Legal  Aid,  the

appellant  was  extended  real  and  meaningful  assistance  or  not.  The

discussion in the matter shall not be taken to be a reflection on the merits

of the matter, which shall be considered and gone into, uninfluenced by

any observations made by us.  

22. Before  we  part,  we  must  lay  down  certain  norms  so  that  the

infirmities that we have noticed in the present matter are not repeated:-

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i) In all cases where there is a possibility of life sentence or

death  sentence,  learned  Advocates  who  have  put  in

minimum  of  10  years  practice  at  the  Bar  alone  be

considered to  be appointed  as  Amicus  Curiae  or  through

legal services to represent an accused.

ii) In  all  matters  dealt  with  by  the  High  Court  concerning

confirmation  of  death  sentence,  Senior  Advocates  of  the

Court must first be considered to be appointed as  Amicus

Curiae.

iii) Whenever  any  learned  counsel  is  appointed  as  Amicus

Curiae,  some reasonable time may be provided to enable

the counsel to prepare the matter.  There cannot be any hard

and fast rule in that behalf.  However, a minimum of seven

days’ time may normally be considered to be appropriate

and adequate.

iv) Any learned counsel, who is appointed as Amicus Curiae on

behalf  of  the  accused  must  normally  be  granted  to  have

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meetings and discussion with the concerned accused.  Such

interactions  may  prove  to  be  helpful  as  was  noticed  in

Imtiyaz Ramzan Khan23.   

23. In  the  end,  we  express  our  appreciation  and  gratitude  for  the

assistance given by Mr. Luthra, the learned  Amicus Curiae and request

him to assist this Court for deciding other issues as noted in the Orders

dated 12.12.2018 and 10.12.2019 passed by this Court, for which purpose

these matters be listed on 18.02.2020 before the appropriate Bench.

24. With  the  aforesaid  observations,  the  substantive  appeals  stand

disposed of,  but the matter be listed on 18.02.2020 as directed.

    ………………………….J. [Uday Umesh Lalit]

………………………….J. [Indu Malhotra]

………………………….J. [Krishna Murari]

New Delhi; December 18, 2019.