Constitution of India, 1950 - Arts. 21, 22(1) & 39A - Absence of counsel to defend the Accused when he stood his trial and prosecution witnesses went unchallenged, the entire trial is vitiated.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble Mrs. Vijay Lakshmi, J. & Hon'ble J.J. Munir,J.
Order Date :- 18.5.2018
JAIL APPEAL No. - 242 of 2013
Rakesh Vs. State of U.P.
Counsel
for Appellant :- From Jail,Raj Kumar Dhama
(Delivered
by Hon'ble J.J. Munir, J.)
1. This
criminal appeal is directed against a judgment and order of Sri Rajendra Babu
Sharma, the then Ist Additional Sessions Judge, Baghpat dated 9th July, 2012 in Sessions Trial No.167 of
2008 (State Vs. Bablu and others) convicting the appellant Rakesh of an offence
punishable under Section 302 read with Section 34 IPC and sentencing him to
suffer imprisonment for life with a fine in the sum of Rs.10,000/- attended
with a direction that in the event of default in the payment of fine, the
appellant would have to undergo a further term of one year rigorous
imprisonment.
2. It may be mentioned at the
outset that the present appeal was filed from Jail by the appellant through the
Senior Superintendent, District Jail, Meerut in the prescribed proforma dated
19.12.2012 forwarded by the Senior Superintendent along with a covering memo addressed
to the Deputy Registrar of this Court. The appeal was belated. This Court by an
order dated 15.01.2013 condoned the delay, admitted the appeal to hearing and
summoned the record.
3. Heard Sri Raj Kumar Dhama,
learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. on
behalf of the State.
4. It must be placed on record
here that this appeal was heard during a single stretch of hearing on
17.03.2018 and judgment was reserved.
5. It is also required to be
said at the outset that three accused were arraigned at the trial, to wit,
Bablu son of Pem Nath, Nandu son of Jasveer and Rakesh son of Dharmveer. Bablu
was murdered pending trial, whereas Nandu died pending trial a natural death.
Thus, the trial proceeded against the present appellant Rakesh alone leading to
the impugned judgment of conviction.
6.
The facts giving rise to the present appeal of
the earliest account are best given out by the First Information Report. It is
stated by the first informant, one Kanwarpal son of Ratan Singh that the
informant was a native of Village Dhikauli. The sister of one Bablu son of
Prem, another native of the same village is said to have eloped with one Mukesh,
a native of Bijraul. According to the informant, his brother Omveer (the
deceased) was frequented by Mukesh, who had eloped with Bablu’s sister, on
account of which Bablu harboured ill will against the deceased. In the evening
hours of 29th September,
2007 the informant and his brother Omveer were proceeding to their Gher carrying meal for their
father. His brother Omveer was walking a few paces ahead of the informant; the
two, as they reached the house of one Satyapal @ Ballam son of Nanak Harijan,
Bablu son of Prem, Rakesh son of Dharmveer (the appellant) and Nandu son of
Jasveer waylaid the informant’s brother wielding country-made pistols, where each
of them in order to do his brother Omveer (now deceased), to death, opened
fire, which hit Omveer. It is said that on hearing Omveer cry out, witnesses
Devendra son of Sheeshpal, Ranpal son of Risal, Satish son of Mahak Singh
arrived at the scene of occurrence and witnessed the incident. Bablu and others
fired indiscriminately, which led the gathered multitude into a state of
commotion and stampede while residents of the locality closed their doors out
of fear and while some were peeping through their windows; the accused still
firing to scare, brandishing their weapons, moved away. The occurrence is said to
have taken place at 17:30 hours. The informant mentions that his brother Omveer
was injured in consequence of the assault, and, while he along with others were
carrying him for medical aid to Meerut, he died on way. With the informant
saying further that his brother’s dead body was placed in his Gher he requested that his report
may be lodged for necessary action.
7. On the basis of a written
report, Ex. Ka-1, by the informant, case crime no.180 of 2007 was registered
against the accused Bablu, Rakesh (appellant) and Nandu for the offence under
Section 302 IPC, which was entered in the General Diary as G.D. Entry No.48 at
20.50 hours on 29.09.2017.
8. The investigation was handed
over to S.O. Sunil Kumar Sharma, who inspected the place of incident, recorded
the statements of the witnesses, prepared the site plan of the place of
occurrence Ex. Ka-3, and, after inviting Panchas, drew up the inquest report, Ex. Ka-2 and other relating documents
i.e. photograph of the body (Photo Lash), Ex. Ka-5, Report
to the Reserve Inspector, Ex. Ka-6, Challan
Lash, Ex. Ka- 7 and a letter written to the C.M.O.,
Ex. Ka-8, and, thereafter, the cadaver was sent for autopsy.
9. PW-4, Dr. Yatish Kumar
conducted autopsy on the dead body of deceased Omveer and found following
anti-mortem injuries on his person:-
(1)
Gunshot wound of entry 1.5cm x 1cm x muscle deep on lateral aspect of right
forearm just 1.5 cm below elbow. Blackening
was found around the wound of size 5 cm x 3 cm. Margins
were inverted.
(2)
Gunshot wound of exit size 2cm x 15 cm x muscle deep on medial aspect of right
upper arm just 1 cm above the elbow margins everted. This wound correspond to
injury no.1 by prob.
(3)
Gunshot wound of entry 1.5cm x 1cm x cavity deep on the right side of the
chest, 17 cm below right nipple at 7 o' clock position. Colour of abrasion was
present around the wound. Margins
were inverted.
(4)
Gunshot wound of exit 2.5cm x 1.5cm on left side of abdomen 12 cm lateral to
umbilicus at 3 o' clock position. Margins
everted and a small piece of gut appeared outside the wound. This wound
correspond to injury no.3 by prob.
(5)
Lacerated wound size 1.5cm x 1cm x muscle deep on medial aspect of left ankle
joint.”
10. After conclusion of investigation,
the Investigating Officer submitted a charge-sheet, Ex. Ka-9 against the
accused Bablu, Rakesh and Nandu for the offence under Section 302 IPC. The case
being exclusively triable by the Court of Sessions, it was committed to the Sessions,
where charges under Section 302 read with Section 34 IPC were framed against
the appellant as well as two other co-accused, who denied the same and claimed
trial. As already noted above, coaccused Nandu died and co-accused Bablu was
murdered. Hence the trial against these co-accused, to wit, Nandu and Bablu
abated and the appellant Rakesh alone stood his trial.
11. During the course of trial,
the prosecution examined four witnesses:- (i) PW-1, Kunwarpal is brother of the
deceased. He is also the first informant; (ii) PW-2, Satish is an eye witness,
whose name finds place in the F.I.R. as a witness; (iii) PW-3, SI Sunil Kumar
Sharma is the Investigating Officer of the case; (iv) PW-4, Dr. Yatish Kumar,
conducted the autopsy.
12. After conclusion of the
prosecution evidence, the statement of the appellant under Section 313 Cr.P.C.
was recorded, wherein he denied the prosecution story. He did not enter defence.
13. In his examination-in-chief
on 13.04.2011, Kunwarpal, the first informant deposing as PW-1 said that on
29.08.2007 at about half past 5 in the evening, he and his brother Omveer were
proceeding to their Gher carrying dinner for their father. Omveer was proceeding a few paces
ahead of him. As soon as Omveer reached about the front of the house of one
Satyapal @ Ballam, Bablu son of Prem (since deceased), Rakesh son of Dharmveer
(the appellant) and Nandu son of Jasveer (since deceased) brandishing
country-made pistols waylaid his brother and with an intent to kill, opened
fire that hit him. It is stated that the deceased Omveer on being shot, cried
out, in consequence of which, Devendra son of Shishpal, Ranpal son of Risal,
Satish son of Mahak Singh, reached the scene of occurrence and all of them
witnessed it. It is stated by the witness that the accused firing away made
good their escape.
14. The witness goes on to say
that those present there including himself lifted the fallen Omveer, placed him
in a car (as he was alive) and proceeded to Meerut to secure medical aid, but
on way Omveer breathed his last. The witness further says that he gave a
written information the same day about the occurrence, which he dictated to one
Dharmpal Singh, who is the scribe of the First Information Report and handed it
over to the Police.
15. It is recorded in the
examination-in-chief of PW-1 that his written information was shown to this
witness, who saw it and acknowledged it to be the same First Information Report
that he had dictated and signed. Upon his identification, the written
information was marked Ex. Ka-1. The
witness has further down in his examination-in-chief said that the inquest
report (Panchayatnama) was filled up by the police in his presence and below the signatures
of other Pancha witnesses, he was also asked to sign as a witness. He appended his
signatures to the inquest. The inquest report bearing paper no.7-A/3 was shown
to the witness, who after perusal of the same said that it bore his signatures on
the reverse of the document and that he was asked to sign the said document
when it was drawn up. He identified the inquest report under reference,
whereupon the same was marked Ex. Ka-2.
16. At this stage of the
proceeding, learned counsel appearing for the accused instead of proceeding to
cross-examine the witness sought adjournment, and, in consequence
cross-examination was deferred to the adjourned date, which appears to be
24.05.2012.
17. It is indeed intriguing that
on the adjourned date, which was specifically set down for the
cross-examination of PW-1, the witness took stand in the dock to be
cross-examined, but the learned counsel appearing for the accused declined to
cross-examine. The trial court recorded the following order, that would,
otherwise, have been the space, which would have been replete with record of
the crossexamination. The order of
the court of the day reads:-
“Adequate
and sufficient time given, Declined to cross-examine, hence declared NIL. Chief
was postponed on request of accused appro.. more than one year before.
Signed:
illegible 24.5.12”
18. It appears that on the
same day i.e. 24.05.2012, the prosecution produced Satish son of Mahak Singh,
PW-2, who said in his examination-in-chief that on 29.09.2007 in the evening
hours at about 5.30, Kunwarpal and his brother Omveer were carrying meal for
their father to the Gher. When Omveer reached in front of the house of Satyapal @ Ballam,
Bablu son of Prem, Rakesh son of Dharmveer and Nandu son of Jasveer waylaid
Omveer brandishing country-made pistols and opened fire, that hit him. Omveer
cried out for help, hearing which Devendra son of Shishpal, Ranpal son of Risal
and PW-1 reached the place of occurrence. The witness states that he saw the entire
occurrence. He further said that having shot the deceased, the accused firing
away (presumably to be scare those, who might have attempted to apprehend) made
good their escape. Omveer while being rushed to medical aid, died on way.
19. It is all the more surprising
that this witness, who was the second and the only remaining witness of fact,
also was not cross-examined by learned counsel for the accused. The court
proceeded to record the following order on the running sheets in the space
meant for recording the cross-examination:-
“Adequate
and sufficient occasion given upto 4.35 PM, cross-examination declined by
accused, hence declared NIL.
Signed:
illegible 24.5 (Seal of the Judge)”
20. The
third witness to be called in by the prosecution was Sub- Inspector Sunil Kumar
Sharma, who took stand in the witness box on 30.05.2012. He said in his
examination-in-chief shorn of unnecessary detail that on that day (date of
registration of the crime) case crime no.180 of 2007, under Section 302 IPC
against Bablu, Nandu and Rakesh, was registered in his presence. The
investigation was done by him. He said that on 29.09.2007, he had copied out
contents of Chik, copy of the G.D. entry, statement of the scribe of the FIR, Head Moharrir
Gopal Singh and the statement of the first informant Kunwarpal. He went on to
depose that on 30.09.2007, he recorded the statements of witnesses Devendra,
Ranpal and Satish and further at the pointing out of the informant and the
witnesses inspected the place of occurrence, and, drew up a site plan. He
proved the site plan before paper no.831/1, which he said was the document that
was before him and bore his signature. Upon that the site plan was marked Ex.
Ka-3. He further
stated that he recorded other relevant evidence in the Case Diary, in
particular, copied out the Panchayatnama.
21. On 07.10.2007, he received a
carbon copy of the postmortem relating to deceased Omveer, which the
Investigating Officer stated that he perused. He went on to say that on
05.10.2007, he recorded the statements of Pancha
witnesses Prempal Singh, Devendra, Mahaveer Singh,
Kisanpal and the informant Kunwarpal (who was also a Panch witness). The
Investigating Officer went on to state that on 07.11.2007 with prior leave of
the court, he went to the District Jail, Meerut and recorded the statement of
accused Vipin @ Nandu on 08.11.2007 from 2 o' clock in the morning hours to
09.11.2007 upto 2 o' clock in the afternoon hours. The Investigating Officer
took Nandu into Police Custody Remand and on his pointing out, recovered the
weapon of offence, a country-made pistol of .315 bore that had the empty stuck into
its barrel. He drew up a memorandum of recovery, which was copied in the case
diary. The witness stated that he investigated this case until 22.11.2007,
whereafter on account of his transfer, the investigation went out of his hands.
The witness further said that Head Constable Bhopal Singh had been posted along
with him at the Police Station. He had seen Bhopal Singh write and sign and,
therefore, recognizes his signature and handwriting. The witness was shown the Chik FIR relating to case crime
no.180 of 2007 and on seeing the same he states that it was in the handwriting
of HCP Bhopal Singh and signed by him. He identified it. According the Chik FIR was exhibited and marked
Ex. Ka-4. The witness also stated that Bhopal Singh had recorded a summary of
the Chik in
the GD. A certified copy of an extract of the GD, that is on record, was proved
by the witness, and was marked Ex. Ka-5.
22. The witness went on to say
that Sub-Inspector Ramdas had been posted along with him at the Police Station.
He had seen him read and write and, therefore, was well acquainted with his
signatures as well as his handwriting. The witness stated that on his
instructions, Sub-Inspector Ramdas had carried out the inquest. The inquest
report was marked Ex. Ka-2 upon the witness identifying his signatures and that
of Sub-Inspector Ramdas. The witness was shown Photo Nash, report to the Reserve
Inspector, Challan Nash and letter to the Chief Medical Officer. The witness stated that on
his instructions, Sub- Inspector R.D. Singh (earlier referred to a Ram Das) had
drawn up these documents. He further stated that on those documents, he identifies
the signatures of SI R.D. Singh, that were marked respectively as Exs. Ka-5 to
Ka-8.
23. The witness further deposed
that after the investigation went out of his hand, it was taken up by SO M.M.
Ansari, who had been posted in the district along with him. He had seen him (SO
M.M. Ansari) read, write and sign and, therefore, he was well acquainted with
his handwriting and signatures. The witness on perusal of record and being
shown the charge sheet paper no.331/1, said that the same bore signatures of SO
M.M. Ansari and was in his handwriting, which he recognizes. Thereupon the
charge-sheet was marked Ex. Ka-9.
24. At this state of proceeding,
the witness was made over to crossexamination by the accused, but the counsel
for the accused did not appear nor did accused himself come forward to
cross-examine, as a result of which, the opportunity to cross-examine for the
witness was closed by the trial judge with the following order recorded on the running
sheet in the space reserved for recording of crossexamination:-
“For accused Not availed despite adequate occasion given and there
are 2 ld. counsel on record for the accused.
Hence
declared NIL.
Signed:
illegible (Seal of the Judge)”
25. The last
witness produced on behalf of the prosecution was Dr. Yatish
Kumar, PW-4, who entered the witness box on 30.05.2012. He stated that on
30.09.2007, he was posted as Medical Officer, CHC Baghpat. On that day, the
dead body of Omveer aged about 35 years son of Ratan Singh, resident of Village
Dhikauli, Chandinagar, District Baghpat was forwarded by the police of Police
Station Chandi Nagar for the purpose of autopsy. He stated that he conducted
the postmortem examination on the dead body of the deceased Omveer and found
the following injuries:- (description of injuries translated from Hindi
vernacular into English)
(1)
Gunshot wound of entry 1.5cm x 1cm x muscle deep on lateral aspect of right
forearm just 1.5 cm below elbow. Blackening
was found around the wound of size 5 cm x 3 cm. Margins
were inverted.
(2)
Gunshot wound of exit size 2cm x 15 cm x muscle deep on medial aspect of right
upper arm just 1 cm above the elbow margins everted. This wound correspond to
injury no.1 by prob.
(3)
Gunshot wound of entry 1.5cm x 1cm x cavity deep on the right side of the
chest, 17 cm below right nipple at 7 o' clock position. Colour of abrasion was
present around the wound. Margins
were inverted.
(4)
Gunshot wound of exit 2.5cm x 1.5cm on left side of abdomen 12 cm lateral to
umbilicus at 3 o' clock position. Margins
were everted and a small piece of gut appeared outside the wound. This wound
correspond to injury no.3 by prob.
(5)
Lacerated wound size 1.5cm x 1cm x muscle deep on medial aspect of left ankle
joint.
26. The witness further stated
that on internal examination he found the head and the thorax to be normal, but
in the abdomen he found about 1200 milliliter coagulated and uncoagulated
blood. The intestines were empty, the liver was ruptured due to bullet injury
and the urinary bladder was filled and normal. The witness further said that
the entire body had rigor mortis and the probable time of death was about 18 hours
before autopsy was conducted. The witness also said that in his opinion the
cause of death was the bullet injury that led to excessive bleeding. The
witness further stated that the postmortem report on record was before him that
was in his handwriting and signed by him. He
identified the same, on the basis of which, it was marked Ex. Ka-10.
27. At the conclusion of the
examination-in-chief of PW-4, he was made over to the cross-examination of the
accused, but no one appeared to cross-examine him, resulting in the opportunity
to crossexamine being closed. The judge recorded the following order on the running
sheet, where cross-examination would have been scribed:-
“Not availed despite adequate occasion given and 2 ld. counsel
are on record for accused. Hence declared NIL.
Signed:
illegible 30.5.12
28. The proceedings of the
trial show that prosecution witnesses were examined, two of fact and two
formal, but all of immence consequence. It is on the basis of their
unchallenged evidence that the appellant has come to be convicted and sentenced
to life. The record of the trial does not spare a shadow of doubt that four
witnesses were not at all cross-examined. The learned defence counsel, who
appeared for the appellant, arraigned as the accused, did not come forward at
all to cross-examine. Rather, on the first day i.e. 13.04.2011, at the conclusion
of the examination-in-chief when the witness Kunwarpal, PW-1 was made over to
the defence to be cross-examined, learned counsel for the accused was present,
but instead of proceeding to cross-examine him forthwith, he requested for an
adjournment for the purpose of cross-examination, that was granted. The witness
next entered the dock for his cross-examination on 24.05.2012, when
crossexamination was declined, presumably, as the counsel did not appear or he
appeared, but refused. The order dated 24.05.2012 passed by the court does not
make it vivid whether the counsel appeared and refused or he just absented. In
either case, the effect would be the same for the accused, who is decidedly not
a lawyer by training, and, scantily educated could not be expected to
cross-examine a witness in a Sessions Trial with the consequence of a capital
charge hanging over his head. More about this aspect of the matter would be
said lateron in this judgment.
29. Likewise, in the case of
PW-2, it is recorded by the trial Judge that adequate and sufficient
opportunity was given to cross-examine, but declined by the accused, and,
therefore, the cross-examination is declared NIL. The hearing of the two formal
witnesses, the Doctor and the Investigating Officer, also carry similar orders
in a similar situation where no cross-examination was undertaken on behalf of
accused, and, therefore, opportunity was closed. It may also be noticed that on
30.05.2012 when the case of PW-4, after the examination-in-chief was over, and,
the witness was made over to be cross-examined, the accused did not avail
opportunity, but the learned Trial Judge in his order has recorded that two
learned counsel appear on record, but the opportunity to cross-examine has not
been availed. The record does not indicate as to who were those two learned
counsels appearing on behalf of the accused before the trial court. It is also
not clear whether they were counsel engaged by him privately through the
resources of his family and friends or they were counsel engaged at State
expense. The fact
that before this Court the accused has not been able to manage a regular appeal
being filed from conviction and has filed a Jail Appeal belatedly, does show
that he is a man possessed of no financial resource and of little social
connection. No friend or family have volunteered to appeal on behalf of
appellant to this Court leaving him to the option of a Jail Appeal that is the
resort of the most indigent, the most neglected and the most marginalized
section of the society.
30. The question, therefore, that
would arise in the circumstances is whether the appellant was given a fair
trial and effective opportunity to defend himself as postulated by Articles 21,
22(1) and 39A of the Constitution? And, if not, what would be the effect of the
deprivation on the validity of the judgment, and, the further course of action.
By further course of action what the Court has in mind is whether the trial
held would remain intact (upto the stage of the examination-in-chief) held in absence
of counsel or in his presence, which was such a disinterested or disabled
presence, that he refused to cross-examine the witnesses. In case the
trial is to be held valid, but the judgment vitiated, the matter would go back
to the trial court to be resumed from the stage where the deprivation of
opportunity occurred, and, that denial made up for by provision of a competent,
willing and enthusiastic lawyer at State expense to enter at the stage of
proceedings, where they were truncated, to faithfully undertake and conclude
his/her duties to the best of his/ her abilities. If this course of action is
to be adopted, there would be no de
novo trial. However, in case it is held by us
that the absence or the virtual presence of defence counsel during time when
the prosecution examined their witnesses leading to the impugned judgment
vitiates the entire trial, a de
novo trial would have to be ordered. The first
question to be dealt with as set out above is what is the impact of the absence
or the virtual presence of the counsel for the accused on the validity of the
impugned judgment.
31. We proceed on the assumption that whoever was the
defence counsel, private or one provided through legal aid, either remained actually
absent after 13.04.2011 when he had sought adjournment to cross-examine or
virtually absent throughout the trial, even if he was physically present. Not
much has to be reasoned by us to reach these conclusions as to the course of
proceedings before the Trial Court speak for themselves.
32. It is by far now well settled
for a legal proposition that it is duty of the Court to see and ensure that an
accused put on a criminal trial is effectively represented by a defence
counsel, and, in the event on account of indigence, poverty or illiteracy or
any other disabling factor, he is not able to engage a counsel of his choice,
it becomes the duty of the Court to provide him legal aid at State expense.
What is meant by the duty of the State to ensure a fair defence to an accused
is not the employment of a defence counsel for namesake. It has to be the provision
of a counsel, who defends the accused diligently to the best of his abilities.
While the quality of the defence or the caliber of the counsel would not
militate against the guarantee to a fair trial sanctioned by Articles 21 &
22 of the Constitution, a threshold level of competence and due diligence in
the discharge of his duties as a defence counsel would certainly be the
constitutional guaranteed expectation. In the present case we find that the
consistent abstinence from his duties and obligations by the learned counsel
appearing for the defence are far for fulfillment of that constitution
guarantee. The Court in that situation was under an obligation to take a
proactive role limited to the facet of provision of opportunity of effective
defence to the accused by atleast offering him alternate counsel at State
expense, who would faithfully and diligently discharge his duties in defending
the accused. This Court is of opinion that finding the accused going absolutely
undefended against the prosecution witnesses on two successive occasions, the
statutory obligation in Section 304(1) Cr.P.C. could not
have been ignored by the Trial Judge by being content to record that the
accused was represented by two counsel as he has said in his order dated
30.05.2012. The presence of counsel on record means effective, genuine and
faithful presence and not a mere farcical, sham or a virtual presence that is
illusory, if not fraudulent. In the present case it was in the consistent
cognizance of the Trial Judge that the accused was going undefended and whoever
was the defence counsel on record had forsaken their basic duties and not that
they were just performing poorly. The counsel had absolutely refused to act leaving
the accused undefended.
33. In that kind of a situation,
we are of opinion that it was the duty of the Trial Judge to enquire of the
accused if he had means to engage another counsel and if he did not have those
means, to provide him legal assistance at State expense of a counsel, who would
faithfully, diligently and to the best of his abilities discharge his duties in
defence of the accused/ appellant at the trial. To our minds the words employed
in Section 304(1) Cr.P.C. “…………… the accused is not represented by a pleader,
…………… do not and cannot mean a kind of paper and sham representation as
distinguished from a substantial, bona
fide and diligent representation. Not ensuring
the reasonable and diligent representation by counsel or pleader to the accused
would not relieve the State of its obligation under Section 304(1) Cr.P.C. and
could not pass the test of fairness which every action of the State must
withstand in keeping with the obligation under Articles 14 and 21 of the Constitution.
34. What an accused put on a
criminal trial in relation to his rights to be effectively represented by a
defence counsel would mean now in the contemporary times can well be imagined
by the following observations of Sutherland, J. almost 78 years ago in Powell Vs. Alabama1 in the context of a hurried
defence of accused undertaken by counsel in a case involving a capital charge:-
“It is not enough to assume that counsel
thus precipitated into the case thought there was no defense, and exercised
their best judgment in proceeding to trial without preparation. Neither they
nor the court could say what a prompt and thorough-going investigation might 1 77 L Ed 8158: 287 US 45 disclose as to the facts. No attempt was made to investigate.
No opportunity to do so was given. Defendants were immediately hurried to
trial. Chief Justice Anderson, after disclaiming any intention to criticize
harshly counsel who attempted to represent defendants at the trials, said: “The
record indicates that the appearance was rather pro forma than zealous and
active.” Under the circumstances disclosed, we hold that defendants were not
accorded the right of counsel in any substantial sense. To decide otherwise,
would simply be to ignore actualities”. This conclusion finds ample support in
the reasoning of an overwhelming array of state decisions, among which we cite
the following: Sheppard v. State, 165 Ga. 460, 464, 141 S.E. 196; Reliford v.
State, 140 Ga. 777, 79 S.E. 1128; McArver v. State, 114 Ga. 514, 40 S.E. 779;
Sanchez v. State, 199 Ind. 235, 246, 157 N.E. 1; Batchelor v. State, 189 Ind.
69, 76, 125 N.E. 773; Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W.(2d) 823;
Jackson v. Commonwealth, 215 Ky. 800, 287 S.W. 17; State v. Collins, 104 La.
629, 29 So. 180, 81 Am.St.Rep. 150;
State v. Pool, 50 La.Ann. 449, 23 So. 503; People ex rel. Burgess
v. Risley, 66 How.Pr.(N.Y.) 67; State ex rel. Tucker v. Davis, 9 Okl.Cr. 94,
130 P. 962, 44 L.R.A.(N.S.) 1083; Commonwealth v. O'Keefe,
*[59] 298 Pa. 169, 148 A. 73; Shaffer v. Territory, 14 Ariz. 329, 333, 127 P. 746.”
(Emphasis by us)
35. At this juncture we must pause and mention that during the course
of hearing of this appeal though it did occur to us after a short while into
the hearing and perusal of records that it appears to be a case where
reasonable opportunity to be defended at the trial has been denied to the
appellant, it did hang heavy on our conscience that any kind of remand order
would result in delay of the trial reaching its final conclusion and justice
requited. This is, particularly, so as much is made to appear in contemporary
times that delay in criminal justice which, of course, should be eschewed in
all eventualities is a phenomenon of the present day that has come with
explosion of litigation which courts combat in every possible manner under the
law. It is absolutely
sound and true that there should not be any delay in delivery of any justice,
let alone criminal justice. The right to speedy trial is a necessary
concomitant of Article 21 of the Constitution. It is by accident that we
chanced upon an observation in Powell
just following what was relied upon by us, in the
context in the present of this case that is illuminating to read:-
“It is true that great and inexcusable delay in the enforcement
of our criminal law is one of the grave evils of our time. Continuances are frequently
granted for unnecessarily long periods of time, and delays incident to the
disposition of motions for new trial and hearings upon appeal have come in many
cases to be a distinct reproach to the administration of justice. The prompt
disposition of criminal cases is to be commended and encouraged. But in
reaching that result a defendant, charged with a serious crime, must not be
stripped of his right to have sufficient time to advise with counsel and
prepare his defense. To do that is not to proceed promptly in the calm spirit
of regulated justice but to go forward with the haste of the mob.” (Emphasis by us)
36. Though
we are not solaced or encouraged by what was said 78 years ago in the context
of American justice, it nevertheless remains true that a fair trial has to be
ensured balancing it reasonably with concern for speedy justice.
37. We may place on record here
that whatever was said about the right to a fair trial in Powell and in many
American decisions thereafter was in the context of the due process clause
under the American Constitution, which in the earlier authorities in India was
held to be very different, in fact, generically different from the guarantee in
Article 21 of the Constitution of India that speaks only about the procedure established
by law distinguished from the due process laws in the 14th Amendment of the U.S. Constitution. But
by now with the expanding scope of procedural fairness brought in about by
authority of their Lordships of the Hon’ble Supreme Court beginning with the
decisions in Maneka Gandhi Vs.
Union of India, 1978 (1) SCC 248 a concept of procedural fairness as now almost bordered on to
substantive fairness, if precisely substantive due process. The lateron
decisions of their Lordships of the Hon’ble Supreme Court, in particular, the
one in Om Kumar Vs. Union of India, 1981 (2) SCC 335 expands the concept of
procedural fairness to almost the levels of substantive due process,
particularly, where what is at stake is a fundamental right of the citizen to
life and liberty guaranteed under Article 21 of the Constitution of India.
38. Reverting to the more precise
issue of the right of an accused to a fair hearing and what is the content of it in the context of
effective legal representation, one of the earlier decisions of the Hon’ble Supreme
Court though not the earliest is in Ranjan
Dwivedi Vs. Union of India, (1983) 3 SCC 307 where their Lordships after noticing earlier authority and dwelling
upon the content of the right to aid of counsel took note of the decision in Powell and held thus:-
“10. Read with Article 21, the Directive Principle in Article
39-A has been taken cognizance of by the court in M.H. Hoskot v. State of Maharashtra
[(1978) 3 SCC 544 : 1978 SCC (Cri) 468 : AIR 1978 SC 1548 : (1979) 1 SCR 192 :
1978 Cri LJ 1678] , State of Haryana v. Darshana
Devi [(1979) 2 SCC 236 : AIR 1979 SC 855 : (1979) 3 SCR 184] and Hussainara
Khatoon (IV) v. Home Secretary, State of Bihar, Patna [(1980) 1 SCC 98 : 1980
SCC (Cri) 40 : AIR 1979 SC 1369 : (1979) 3 SCR 532 : 1979 Cri LJ 1045] to lead
to certain guidelines in the administration of justice. One of these is that
when the accused is unable to engage a counsel owing to poverty or similar
circumstances, the trial would be vitiated unless the State offers free legal
aid for his defence to engage a lawyer whose engagement the accused does not object.
This more or less echoes the moving words of Sutherland, J. in Powell case [AIR
1951 SC 217 : 1951 SCR 344 : 1951 SCJ 320 : 52 Cri LJ 736] . “The right to the
aid of counsel,” wrote Sutherland, J., “is of a fundamental character”. In this
country (i.e. United States of America) ‘historically and in practice’, a
hearing has always included ‘the right to the aid of counsel when desired and
provided by the party asserting the right’. Sutherland, J. went on to indicate
why this should be so: 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, 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.” But he did not stop there. If
the accused were unable to get counsel, even though opportunity was offered,
then the ‘due process’ clause in the Fourteenth Amendment required the trial
court ‘to make effective appointment of counsel’. This was new law, and so it
was natural that the court would set careful limits for the new principle: Whether
this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it
is necessary now to decide, as we do decide, is that in a capital case, where
the defendant is unable to employ counsel, and is incapable adequately of
making his own defence because of ignorance, feeble-mindedness, illiteracy, or
the like, it is the duty of the Court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of law; and that duty
is not discharged by an assignment at such a time or under such circumstances
as to preclude the giving of effective aid in the preparation and trial of the
case.
12.
There was a clear departure
by the Supreme Court of the United States in Betts v. Brady [86 L Ed 1595 : 316
US 455 : 62 S Ct 1252 (1942)] where the court made an abrupt break and held
that the ‘due process’ clause of the Fourteenth Amendment did not impose upon the
States, as the Sixth Amendment imposed upon the Federal Government, an absolute
requirement to appoint counsel for all indigent accused in criminal cases. It
required the State to provide a counsel only where the particular circumstances
of a case indicated that the absence of counsel would result in a trial lacking
‘fundamental fairness’. Ever since the decision in Betts case [(1980) 1 SCC 98
: 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : (1979) 3 SCR 532 : 1979 Cri LJ 1045]
the problem of the constitutional right of an accused in a State court became a
continuing source of controversy until it was set at rest in the celebrated
case of Gideon v. Wainwright [9 L Ed 2d 799 : 372 US 335 : 83 S Ct 792 (1963)]
. Under the rule laid down in Betts case [(1980) 1 SCC 98 : 1980 SCC (Cri) 40 :
AIR 1979 SC 1369 : (1979) 3 SCR 532 : 1979 Cri LJ 1045] the court had to
consider the “special circumstances” in each case to determine whether the
denial of counsel had amounted to a constitutional defect in the trial and in an
era of constantly expanding federal restrictions on State criminal processes,
it was hardly startling that the court in Gideon case [86 L Ed 1595 : 316 US
455 : 62 S Ct 1252 (1942)] explicitly rejected the rule laid down in Betts case
[(1980) 1 SCC 98 : 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : (1979) 3 SCR 532 :
1979 Cri LJ 1045] and held that “Sixth Amendment's (unqualified) guarantee of
counsel for all indigent accused” was a “fundamental right made obligatory upon
the State by the Fourteenth Amendment”. We are however not in the United States
of America and therefore not strictly governed by the ‘due process’ clause in
the Fourteenth Amendment. We therefore need not dilate on the subject any
further.
14.
The Law Commission in its
Forty-eighth Report suggested for making provision for free legal assistance by
the State for all accused who are undefended by a lawyer for want of means. This
recommendation still remains to be implemented. Many a time, it may be
difficult for the accused to find sufficient means to engage a lawyer of
competence. In such a case, the court possesses the power to grant free legal
aid if the interests of justice so require. The remedy of the petitioner
therefore is to make an application before the Additional Sessions Judge making
out a case for the grant of free legal aid and if the learned Additional
Sessions Judge is satisfied that the requirements of sub-section (1) of Section
304 of the Code are fulfilled, he may make necessary directions in that behalf.
While fixing the fee of counsel appearing for the petitioner, the learned Additional
Sessions Judge shall fix the amount of fee having regard to the interim orders
passed by this court. But if he feels that he is bound by the constraints of
the rules framed by the Delhi High Court prescribing scales of remuneration for
empanelled lawyers, he shall make a reference to the High Court for suitable
directions. On such reference being made, the High Court shall consider in its
undoubted jurisdiction under Article 227(3) of the Constitution whether the
scales of remuneration prescribed for empanelled lawyers appearing in sessions
trials are not grossly insufficient and call for a revision. That however is a
matter which clearly rests with the High Court and we wish to say no more.”
39. It may be pointed out that we have spoken in earlier part of this judgment
that the accused in the present case was not a trained lawyer and, in that
context, let down by his counsel, he was a cast away at the trial when the
witnesses for the prosecution deposed against him. The appellant by all that is
on record is a man with little education, if any. In a court of law, contrary
to what many men of learning from other fields seem to believe, the most highly
educated of men other than a trained lawyer would be as helpless to defend
himself as an uneducated man. Being
learned in the science of law is a life times acquisition that involves
assimilation of a vast learning of different principles in an organized manner.
Advocacy is an art that is built upon day by day on the foundation of that
knowledge of law. No layman, educated or uneducated, can be expected to defend
himself at a criminal trial, particularly, one involving complicated legal
issues, and, on a capital charge at that. It is gratifying to note that their
Lordships of the Hon’ble Supreme Court in paragraph 10 of the report in Ranjan Dwivedi recognized
this inherent handicap of a man, not trained in the law quoting again from the
words of Sutherland, J. in Powell that express the position in the most eloquent terms:-
“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, 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
adequate y to prepare his defence, even though he have 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.”
40. In the context of what would be the duty of the court to an accused,
who did not apply for the free legal aid, but in the notice of the court, is
placed in a situation where he is going unrepresented, a beacon light authority
of the Hon’ble Supreme Court is the decision of their Lordships in Suk Das Vs. Union Territory of Arunachal Pradesh5 where the obligation of the
judge, duty to the accused (of the Judge and the State) and the right of fair
and effective representation at the trial has been expressed thus:-
“6. But the question is whether this fundamental right could
lawfully be denied to the appellant if he did not apply for free legal aid. Is
the exercise of this fundamental right conditioned upon the accused applying
for free legal assistance so that if he does not make an application for free
legal assistance the trial may lawfully proceed without adequate legal
representation being afforded to him? Now it is common knowledge that about 70
per cent of the people living in rural areas are illiterate and even more than
that percentage of the people are not aware of the rights conferred upon them
by law. Even literate people do not know what are their rights and entitlements
under the law. It is this absence of legal awareness which is responsible for
the deception, exploitation and deprivation of rights and benefits from which
the poor suffer in this land. Their legal needs always stand to become
crisis-oriented because their ignorance prevents them from anticipating legal
troubles and approaching a lawyer for consultation and advice in time and their
poverty magnifies the impact of the legal troubles and difficulties when they
come. Moreover, because of their ignorance and illiteracy, they cannot become
self-reliant: they cannot even help themselves. The law ceases to be their
protector because they do not know that they are entitled to the protection of
the law and they can avail of the legal service programme for putting an end to
their exploitation and winning their rights. The result is that poverty becomes
with them a condition of total helplessness. This miserable condition in which
the poor find themselves can be alleviated to some extent by creating legal
awareness amongst the poor. That is why it has always been recognised as one of
the principal items of the programme of the legal aid movement in the country
to promote legal literacy. It would in these circumstances 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. This is the reason why in Khatri (II) v. State
of Bihar [(1981) 1 SCC 627 : 1981 SCC (Cri) 228 : (1981) 2 SCR 408] , we ruled
that the Magistrate or the Sessions Judge before 5 (1986) 2 SCC 401 whom an 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. We deplored that in that case where the
accused were blinded prisoners the Judicial Magistrates failed to discharge
their obligation and contented themselves by merely observing that no legal
representation had been asked for by the blinded prisoners and hence none was
provided. We accordingly directed “the Magistrates and Sessions Judges in the
country to inform every accused who appear 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. We also gave a
general direction to every State in the country “to make provision for grant of
free legal service to an accused who is unable to engage a lawyer on account of
reasons such as poverty, indigence or incommunicado situations,” the only
qualification being that the offence charged against an 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.
It
is quite possible that since the trial was held before the learned Additional
Deputy Commissioner prior to the declaration of the law by this Court in Khatri
(II) v. State of Bihar [(1981) 1 SCC 627 : 1981 SCC (Cri) 228 : (1981) 2 SCR
408] the learned Additional Deputy Commissioner did not inform the appellant
that if he was not in a position to engage a lawyer on account of lack of
material resources, he was entitled to free legal assistance at State cost nor
asked him whether he would like to have free legal aid. But it is surprising
that despite this declaration of the law in Khatri (II) v. State of Bihar
[(1981) 1 SCC 627 : 1981 SCC (Cri) 228 : (1981) 2 SCR 408] on December 19, 1980
when the decision was rendered in that case, the High Court persisted in taking
the view that since the appellant did not make an application for free legal
assistance, no unconstitutionality was involved in not providing him legal
representation at State cost. It is obvious that in the present case the
learned Additional Deputy Commissioner did not inform the appellant that he was
entitled to free legal assistance nor did he inquire from the appellant whether
he wanted a lawyer to be provided to him at State cost. The result was that the
appellant remained unrepresented by a lawyer and the trial ultimately resulted
in his conviction. This was clearly a violation of the fundamental right of the
appellant under Article 21 and the trial must accordingly be held to be
vitiated on account of a fatal constitutional infirmity, and the conviction and
sentence recorded against the appellant must be set aside.”
41. We may observe here that in the facts of Suk Das, their Lordships found for
the Judges and the Magistrates a duty to be offer legal aid to the accused if
they were going without the assistance of a lawyer on account of poverty,
ignorance or illiteracy instead of leaving it to the litigant to ask for legal
aid. Section 304(1) Cr.P.C. more or less takes care of the situation in the
case where the accused is not represented by a pleader as said in the earlier
part of this Judgment. True like as
it is said there, the duty would also extend for the court to ensure the
availability of diligent and effective defence counsel for the accused, where
there is a counsel representing him on record, but in fact is only a sham as in
the facts of the present case.
42. In a later authority of the
Hon’ble Supreme Court where the accused was absolutely unrepresented by a
lawyer facing trial for an offence punishable under Section 304 IPC, their
Lordships in Tyron Nazareth Vs.
State of Goa, 1994 Supp (3) SCC 321 in a short judgment relying on Khatri
(II) Vs. State of Bihar, (1981) 1 SCC 627 and Suk Das Vs. Union
Territory of Arunachal Pradesh (supra), held that
since accused was not assisted by any lawyer and perhaps he was not aware about
the fact that minimum sentence provided under the statute was 10 years’
rigorous imprisonment besides the fine of Rs.1 lakh, remanded the case to the trial
court for trial de novo. The paragraph 2 of the report in Tyron
Nazareth reads:-
“2.
We have heard the learned counsel for the State. We have also perused the
decisions of this Court in Khatri (II) v. State of Bihar [(1981) 1 SCC 627 :
1981 SCC (Cri) 228] and Sukh Das v. Union Territory of Arunachal Pradesh
[(1986) 2 SCC 401 : 1986 SCC (Cri) 166] . 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 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.”
43. In the
context of what would be the impact on the right to a fair trial resulting from
absence of counsel, whether deliberate or negligent, and, the impact on the
outcome of a criminal proceeding against an accused at the appellate stage,
where a criminal appeal is heard in the absence of counsel, their Lordships of
the Hon’ble Supreme Court in Mohd.
Sukur Ali Vs. State of Assam8, made illuminating observations, which say:-
“5.
We are of the opinion that
even assuming that the counsel for the accused does not appear because of the
counsel's negligence or deliberately, even then the court should not decide a
criminal case against the accused in the absence of his counsel since an
accused in a criminal case should not suffer for the fault of his counsel and
in such a situation the court should appoint another counsel as amicus curiae
to defend the accused. This is because liberty of a person is the most
important feature of our Constitution. Article 21 which guarantees protection
of life and personal liberty is the most important fundamental right of the
fundamental rights guaranteed by the Constitution. Article 21 can be said to be
the “heart and soul” of the fundamental rights.
6.
In our opinion, a criminal
case should not be decided against the accused in the absence of a counsel. We
are fortified in the view we are taking by a decision of the US Supreme Court
in Powell v. Alabama
[77 L Ed 158 : 287 US 45 (1932)] , in which it was observed: (L Ed pp. 170-71) “What,
then, does a hearing include? Historically and in practice, in our own country
at least, it has always included the right to the aid of counsel when desired
and provided by the party asserting the right. The right to be heard would be,
in many cases, of little avail if it did not comprehend the right to be heard
by the 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, 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 have 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. If in
any case, civil or criminal, a State or Federal Court were arbitrarily to
refuse to hear a party by counsel, employed by and appearing for him, it
reasonably may not be doubted that such a refusal would be a denial of a
hearing, and, therefore, of due process in the constitutional sense.” The above
decision of the US Supreme Court was cited with approval by this Court in A.S.
Mohammed Rafi v. State of T.N. [(2011) 1 SCC 688 : (2011) 1 SCC (Cri) 509 : AIR
2011 SC 308] vide para 24.
9.
In Maneka Gandhi v. Union
of India [(1978) 1 SCC 248 : AIR 1978 SCC 597] , 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, 8
(2011) 4 SCC 729 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.
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 Gideon v. Wainwright [9
L Ed 2d 799 : 372 US 335 (1962)] , Mr Hugo Black, J. of the US Supreme Court
delivering the unanimous judgment of the Court observed: (L Ed p. 805) “…
lawyers in criminal courts are necessities, not luxuries.”
44. With all the evolution in the law that has taken place over the years
regarding the right of an accused to an effective defence in a criminal trial,
particularly, with a proactive regime of legal aid that has now become not only
a well established concept, but a system backed by institutional support
established under the Legal Services Authorities Act, 1987, a relatively
contemporary and authoritative guidance by the Hon’ble Supreme Court is to be
found in two successive decisions of their Lordships in the same case that is
to say Mohd. Hussain Zulfikar Ali Vs.
State (Government of NCT of Delhi), (2012) 2 SCC 584 and in Mohd. Hussain Zulfikar
Ali Vs. State (Government of NCT of Delhi), (2012) 9 SCC 408; the latter is a decision where the court answered the question
whether finding the trial vitiated on different counts including violation of
the right to a fair and effective defence by legal counsel, the matter required
to be remanded for trial de novo or the conviction merited be set aside. This happened as in Mohd. Hussain Zulfikar Ali Vs. State (Government of NCT of
Delhi), (2012) 2 SCC 584, the Hon’ble Judges
comprising the Bench though agreeing on most question of fact and law, had disagreed on the point whether a remand was the course to be adopted
or acquittal by their Lordships. As such, the matter was placed before a Bench
of 3 Hon’ble Judges, who went into the merits of the matter also on those
questions that had already been examined by their Lordships in the two Judge
Bench and decided to opt for a remand of the case, but all that is not the
issue and has been mentioned as an introduction to the background, in which two
sequel authorities have come in the same case. For the sake of convenience, Mohd. Hussain Zulfikar Ali Vs. State (Government of NCT of Delhi)
reported in (2012)
2 SCC 584 will hereinafter be referred to as “Mohd. Hussain
Zulfikar Ali (I), whereas Mohd. Hussain Zulfikar Ali Vs. State
(Government of NCT of Delhi), (2012) 9 SCC 408 will be referred to as “Mohd.
Hussain Zulfikar Ali (II).
45. The case of Mohd. Hussain Zulfikar Ali (I) that
carries copious reference to facts, in which the issue arose, is very close on
facts to the case in hand except certain very different features there, like
the one that it was a case of death sentence being handed down by the trial court
and confirmed by the High Court. It bears resemblance on facts and also in the
context of what effective legal representation would mean in that, that in Mohd. Hussain Zulfikar Ali (I), the
accused had the assistance of a counsel during proceeding before the Magistrate
and for some period of time after committal to the court of sessions, however,
as put by their Lordships “midway, the learned counsel disappeared from the
scene, that is, before the conclusion of the trial”. The prosecution
examined 65 witnesses, out of whom 56 witnesses, both of fact and formal, had
their evidence recorded at a time when the accused did not have his counsel by
his side and none of those 56 witnesses were, therefore, cross-examined on
behalf of the accused. No further
facts of the case need be detailed for the purpose of elucidating the principle
of law about a fair representation at the trial that was laid by their
Lordships in Mohd. Hussain
Zulfikar Ali (I) and Mohd. Hussain Zulfikar Ali (II).
46. In Mohd. Hussain Zulfikar Ali (I), His
Lordship Hon’ble Dattu, J (as His Lordship then was) writing a separate, but
concurring judgment on the issue of a right to a fair trial, particularly, in
the context of crossexamination (or the absence of it due to unavailability of
counsel) held as under:-
13.
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
the learned counsel and her appearance during the last stages of the trial was
rather pro forma than active. It cannot seriously be doubted at this late date
that the right of crossexamination 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 testimony-in-chief was untrue and
unbiased.
(Emphasis
by us)
14. The purpose of cross-examination of a witness has been succinctly
explained by the Constitution Bench of this Court in Kartar Singh v. State of
Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] : (SCC p. 686, para 278) “278.
Section 137 of the Evidence Act defines what crossexamination 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
crossexamination 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 crossexamination 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.”
15.
The aforesaid view is
reiterated by this Court in Jayendra Vishnu Thakur v. State of Maharashtra
[(2009) 7 SCC 104 : (2010) 2 SCC (Cri) 500] wherein it is observed: (SCC p.
117, para 24)
“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
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-Ã -vis opinion.”
16. 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 the charge in a criminal case.
17.
This Court in Zahira
Habibullah Sheikh (5) v. State of Gujarat [(2006) 3 SCC 374 : (2006) 2 SCC
(Cri) 8] 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: (SCC pp. 394-96, paras 35-37)
“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 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 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 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.”
18.
In M.H. Hoskot v. State of
Maharashtra [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] this Court has held: (SCC
p. 553, para 14) “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?’”
19. In Mohd. Sukur Ali v. State of Assam [(2011) 4 SCC 729 : (2011)
2 SCC (Cri) 481] it is observed: (SCC pp. 731-32, paras 9-10) “9. In Maneka
Gandhi v. Union of India [(1978) 1 SCC 248] , 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.
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.”
20. In Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC 98 : 1980
SCC (Cri) 40] it is held: (SCC pp. 103-05, para 6)
“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 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 [(1978) 1 SCC 248] 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 [(1978) 3 SCC 544 : 1978 SCC (Cri) 468] : (SCC p. 553, para 14)
‘14.
… 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 just’ procedure. Black, J., observed in Gideon v. Wainwright [9 L Ed
2d 799 : 372 US 335 (1962)] : (L Ed 2d p. 805) ‘… Not only these 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, few indeed, 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 it 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 following passage from the judgment
of Douglas, J. in Argersinger v. Hamlin [32 L Ed 2d 530 : 407 US 25 (1971)] :
(L Ed 2d pp. 535-36 & 554) ‘“… 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, 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.” [Ed.: Powell v. Alabama, 77 L Ed 158, p. 170 : 287 US 45 (1932)] *
* * Both Powell [ The reference is to Powell v. Alabama, 77 L Ed 158 : 287 US
45 (1932)] and Gideon [9 L Ed 2d 799 : 372 US 335 (1962)] 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.’”
21. In Khatri (2) v. State of Bihar [(1981) 1 SCC 627 : 1981 SCC
(Cri) 228] this Court has held: (SCC pp. 630-32, paras 5-6) “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 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 (4) case [(1980) 1 SCC 98 : 1980
SCC (Cri) 40] . This Court has pointed out in Hussainara Khatoon (4) case
[(1980) 1 SCC 98 : 1980 SCC (Cri) 40] which was decided as far back as 9-3-1979
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 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 [377 F Supp
995 (SDNY 1974)] ‘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 [404 F Supp 2d 571] , ‘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 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 the 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
incommunicado 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.”
22. In Ram Awadh v. State of U.P. [1999 Cri LJ 4083 (All)] the Allahabad
High Court held: (Cri LJ p. 4086, para 14) “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 of
justice and the Court has to guard against such an eventuality.”
23. 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 Criminal Procedure Code provides
that in all criminal prosecutions, the accused has a right to have the assistance
of a counsel and the Criminal Procedure Code 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.
(Emphasis
by us)
24. In the present case, not only was the accused denied the assistance
of a counsel during the trial but 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 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
CrPC.
(Emphasis
by us)
25. 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 be simply to ignore actualities and also would be to ignore
the fundamental postulates, already adverted to.
26.
The learned counsel for the
respondent State, Shri Attri contends that since no prejudice is caused to the
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 Criminal Procedure Code 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.
(Emphasis
by us)
47. In Mohd.
Hussain Zulfikar Ali (I), further in his
concurring judgment His Lordship Hon’ble C.K. Prasad, J held as under:-
42. 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 crossexamined.
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 the
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.
Poverty
also came in his way to engage a counsel of his choice.
(Emphasis
by us)
43. 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 recognised by covenants and the Universal
Declaration of Human Rights, constitutionally guaranteed and statutorily
protected.
45.
It is accepted in the
civilised 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.
48.
These salutary features
forming part of the international convenants and the Universal Declaration of
Humar Rights, 1948 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. Article 39- A of the Constitution of
India casts a 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.
51.
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 Forty-second 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 through 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 the right to be heard through counsel.
(Emphasis
by us)
52. One cannot lose sight of the fact that even intelligent and educated
men, not 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 loses his equilibrium in face
of the charge. A guiding hand of the 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 for 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.”
(Emphasis
by us)
48. In Mohd.
Hussain Zulfikar Ali (II), their Lordships were concerned
with the difference of opinion in Mohd.
Hussain Zulfikar Ali (I) between the two Hon’ble
Judges on the point whether the case was to be remanded for trial de novo or
the appellant was to be acquitted. As there
was, on this point, differing opinions in the Two Judge Bench, while taking a
view that the matter looking to the gravity of the offence merited a retrial/
trial de novo in Mohd. Hussain
Zulfikar Ali (II) also their Lordships were in
no doubt that the absence of counsel of the accused resulted in the trial being
vitiated, which would appear from the following observations of their Lordships
in Mohd. Hussain Zulfikar Ali (II):-
“42. Insofar as the present case is concerned, it has been concurrently
held by the two Judges [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012)
2 SCC 584 : (2012) 1 SCC (Cri) 919] who heard the criminal appeal that the
appellant was denied due process of law and the trial held against him was
contrary to the procedure prescribed under the provisions of the Code since he
was denied right of representation by counsel in the trial. The Judges differed
on the course to be followed after holding that the trial against the appellant
was flawed.
43. We have to
consider now, whether the matter requires to be remanded for a de novo trial in
the facts and the circumstances of the present case. The incident is of 1997.
It occurred in a public transport bus when that bus was carrying passengers and
stopped at a busstand. The
moment the bus stopped an explosion took place inside the bus that ultimately
resulted in death of four persons and injury to twenty-four persons. The nature
of the incident and the circumstances in which it occurred speak volume about
the very grave nature of offence. As a matter of fact, the appellant has been
charged for the offences under Sections 302/307 IPC and Section 3 and, in the alternative,
Section 4(b) of the ES Act. It is true that the appellant has been in jail
since 9-3-1998 and it is more than 14 years since he was arrested and he has
passed through mental agony of death sentence and the retrial at this distance
of time shall prolong the culmination of the criminal case but the question is
whether these factors are sufficient for the appellant's acquittal and
dismissal of indictment. We think not.”
49. Thus
seen in the context of this case the firm requirement of the law, the highest
guarantees of the Constitution embodied in Articles 21, 22 & 39A besides
international conventions on human rights, the right to a fair trial about
which there is no doubt or dissent, would be a empty formality and an
unrealized constitutional guarantee apart from a transgression of the statutory
provisions embodied in Section 304(1) Cr.P.C. Rather, the feeble submission put
forward on behalf of the State that the appellant stayed a mute spectator to
the deliberate absence of two counsel, whose appearance was on record, cannot
claim any right to appointment of counsel by the Court, who would diligently
and dutifully defend him, is completely misplaced only to be swept away under
the deluge consistent authority that enjoins the court, to come forward and
ensure that an accused, particularly, like the appellant, who does not appear
to be a very educated man or one possessed of good financial resources and
provide him with effective legal assistance to defend him at the trial
vigorously and dutifully.
50. The appellant, ex facie, was deserted by his
counsel on record and it is in the considered opinion of this Court a folly on
the part of Trial Judge not to have extended the facility of a counsel to
effectively defend him at State expense, if he so desired. A perusal of orders recorded
by the learned Trial Judge on 24.05.2012 and 30.05.2012 shows that no such
offer was made to the appellant to defend him at State expense. The learned
Trial Judge was aware that the accused had such a right in case of his counsel
deserting him. He knew the consequences of the prosecution witnesses going
unchallenged, and, that too in an offence involving a capital charge, that
would either result in a sentence of death or imprisonment. However, instead of
informing the accused that he was entitled to be defended at the expense of the
State exchequer, the learned Trial Judge appears to have gone by the letter of
Section 304(1) Cr.P.C., which says that the facility to be defended at State
expense in a court of sessions is for the accused, who is not represented by
pleader. Since the accused in this was, on record, represented by pleader/
counsel, who had appeared on 13.04.2011, but thereafter deserted the appellant
altogether when the entire trial went through, proved a sham by refusing to
cross-examine any of the witnesses certainly attracted the provisions of
Section 304(1) Cr.P.C. The Trial Judge under such a situation was duty bound to
inform the appellant that he could be provided a counsel to defend him at State
expense, if he did not have means to engage another counsel of his choice.
51. The appellant is apparently a
man of no education and no means. He would not know what would be the
consequence of his failure to cross-examine the prosecution witnesses. He would
perhaps not know what to do when two of his counsel engaged, in whatever manner,
deserted him. In all likelihood, going by the fact that he has filed a belated
Jail Appeal, he did not have a financial or the social support when he was
deserted to engage a counsel again. In the circumstances to pass orders of the
kind that the Trial Judge has done at the end of each testimony of the
prosecution witnesses, is wholesome and gross violation of the appellant’s
statutory right under Section 304(1) Cr.P.C. and his fundamental rights under
Articles 21, 22(1) of the Constitution besides a nullification of the guarantee
in Article 39A of the Constitution. This Court is, therefore, of the considered
opinion that the absence of counsel to defend the appellant when he stood his
trial and prosecution witnesses went unchallenged, the entire trial is
vitiated. However, going by the principles of Mohd. Hussain
Zulfikar Ali (II), the present case though not
one of such wide ramification as for one before their Lordship in Mohd. Hussain Zulfikar Ali (II) is nevertheless a heinous offence involving a capital charge that merits
a direction for a retrial in accordance with law.
52. We may pause here to speak
about a possibility of which we had thought at one stage; that is about
remanding proceedings to the trial after setting aside the judgment, to be
resumed from the stage of cross-examination. However, looking to the
preponderance of authority about the impact on a trial where the accused faces
it without aid of counsel, particularly, the law in this regard laid down in Mohd. Hussain Zulfikar Ali (I), we
think that a de novo trial is the right option that has imprimatur of the law.
53. In the result, this appeal
succeeds and is allowed. The impugned judgment and order passed by the First
Additional Sessions Judge, Baghpat dated 09.07.2012 in Sessions Trial No.167 of
2008, is hereby set aside with a remand to the Trial Court to hold a trial de novo. Under the
circumstances of the case, it is directed that the trial shall now be concluded,
in all eventualities, within six months in accordance with law on communication
of a certified copy of this judgment. Let this judgment be certified to the
Trial Court forthwith.
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