ANOKHILAL versus STATE OF MADHYA PRADESH on 18 December 2019

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ANOKHILAL

v.

STATE OF MADHYA PRADESH

(Criminal Appeal Nos.62–63 of 2014)

BDECEMBER 18, 2019

[UDAY UMESH LALIT, INDU MALHOTRA ANDKRISHNA MURARI, JJ.]

Legal Services: Grant of free legal aid – Real and meaningfulassistance – Entitlement to – On facts, in the case of rape and murderCof a minor girl, appointment of counsel through legal services torepresent the accused-appellant – The day the counsel appointed,on the same day charges framed against the appellant for offencepunishable u/ss. 363, 366, 377, 376(2)(f) and 302 IPC r/w s. 6 ofPOCSO Act – Thereafter, conviction of appellant and imposition ofDdeath sentence and other sentences by courts below – On appeal,held: The day Amicus Curiae was named, on the same date, the counselwas called upon to defend the accused at the stage of framing ofcharges – Amicus Curiae did not have sufficient time to go througheven the basic documents, nor the advantage of any discussion orinteraction with the accused, and time to reflect over the matter –EEven before the Amicus Curiae could come to grips of the matter,the charges were framed and trial itself was concluded within afortnight – Approach adopted by the trial court, may have expeditedthe conduct of trial, but did not further the cause of justice – It leftglaring gaps – Thus, in the process, the assistance that the appellantFwas entitled to in the form of legal aid, could not be real andmeaningful – Counsel ought to have been afforded sufficientopportunity to study the matter and the infraction in that behalfresulted in miscarriage of justice – Judgment of conviction andorders of sentence passed by courts below against the appellant setaside directing de novo consideration wherein the counsel wouldGtake up the remaining issue – Penal Code, 1860 – ss. 363, 366,377, 376(2)(f) and 302 – Protection of Children from SexualOffences Act, 2012 – s. 6.

Advocates/Lawyer: Appointment as Amicus Curiae –Guidelines for, in cases where there is a possibility of life sentenceH

or death sentence – Held: Advocates having put in minimum of 10years practice at the Bar alone be considered to be appointed asAmicus Curiae or through legal services to represent an accused –In all matters dealt with by the High Court concerning confirmationof death sentence, Senior Advocates of the Court must first beconsidered to be appointed as Amicus Curiae – Counsel appointedas Amicus Curiae, to be provided some reasonable time to preparethe matter – Minimum seven days’ time may normally be consideredto be appropriate and adequate.

Criminal Trial – Expeditious disposal – Necessity of – Held:Expeditious disposal is required in criminal matters and that wouldnaturally be part of guarantee of fair trial – However, the attemptto expedite the process should not be at the expense of the basicelements of fairness and the opportunity to the accused – The causeof justice must never be allowed to suffer or be sacrificed which isparamount – Thus, the process may be expedited, but fast trackingof process must never ever result in burying the cause of justice –Administration of criminal justice.

Constitution of India: Art. 39A – Equal justice and free legalaid – Held: Article 39-A provides for free legal aid to ensure thatopportunities for securing justice are not denied to any citizen byreason of economic or other disabilities – Right to Free LegalServices is an essential ingredient of ‘reasonable, fair and just’procedure for a person accused of an offence – Trial must beconducted in such a manner as will punish the innocent and punishthe guilty – Counsel must be given sufficient and adequate time toprepare for the defence – Legal Services Authorities Act, 1987.

Disposing of the appeals with direction to list the matteron 18.02.2020 for consideration of other related issues, the Court

Conclusion

HELD: 1.1 Article 39-A inserted by the 42[nd]amendment tothe Constitution, effected in the year 1977, provides for free legalaid to ensure that opportunities for securing justice are not deniedto any citizen by reason of economic or other disabilities. Thestatutory regime put in place including the enactment of the LegalServices Authorities Act, 1987 is designed to achieve the mandateof Article 39-A. It has been well accepted that Right to Free LegalServices is an essential ingredient of ‘reasonable, fair and just’

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Aprocedure for a person accused of an offence and it must be heldimplicit in the right guaranteed by Article 21. The decision ofthis Court in Best Bakery case emphasizes that the object ofcriminal trial is to search for the truth and the trial is not a boutover technicalities and must be conducted in such manner as willprotect the innocent and punish the guilty. Even before insertionBof Article 39-A in the Constitution, the decision of this Court inBashira’case stated with clarity that mere formal compliance ofthe rule under which sufficient time had to be given to the counselto prepare for the defense would not carry out the objectunderlying the rule. It was further stated that the opportunityCmust be real where the counsel is given sufficient and adequatetime to prepare. In Bashira as well as in Ambadas makingsubstantial progress in the matter on the very day after a counselwas engaged as Amicus Curiae, was not accepted by this Courtas compliance of ‘sufficient opportunity’ to the counsel. [Para13][1231-B-H; 1232-A]D

1.2 In the instant case, the Amicus Curiae, was appointedon 19.02.2013, and on the same date, the counsel was called uponto defend the accused at the stage of framing of charges. One cansay with certainty that the Amicus Curiae did not have sufficienttime to go through even the basic documents, nor the advantageEof any discussion or interaction with the accused, and time toreflect over the matter. Thus, even before the Amicus Curiaecould come to grips of the matter, the charges were framed. [Para14][1232-A-B]

1.3 The trial court on its own, ought to have adjourned theFmatter for some time so that the Amicus Curiae could have hadthe advantage of sufficient time to prepare the matter. Theapproach adopted by the trial court, may have expedited theconduct of trial, but did not further the cause of justice. Not onlywere the charges framed the same day, but the trial itself wasGconcluded within a fortnight thereafter. In the process, theassistance that the appellant was entitled to in the form of legalaid, could not be real and meaningful. [Para 15][1232-D-E]

1.4 There are other issues which also arise in the matternamely that the examination of 13 witnesses within seven days, H

the examination of the accused under the provisions of the Section313 of the Code even before the complete evidence was led bythe prosecution, and not waiting for the FSL and DNA reports inthe present case. DNA report definitely formed the foundation ofdiscussion by the High Court. However, the record shows thatthe DNA report was received almost at the fag end of the matter,and after such receipt, though technically an opportunity was givento the accused, the issue on the point was concluded the verysame day. The concluding paragraphs of the judgment of the trialcourt show that the entire trial was completed in less than onemonth with the assistance of the prosecution as well as thedefense, but, such expeditious disposal definitely left glaring gaps.[Para 16][1232-F-H; 1233-A]

1.5 Expeditious disposal is undoubtedly required in criminalmatters and that would naturally be part of guarantee of fair trial.However, the attempts to expedite the process should not be atthe expense of the basic elements of fairness and the opportunityto the accused, on which postulates, the entire criminaladministration of justice is founded. In the pursuit for expeditiousdisposal, the cause of justice must never be allowed to suffer orbe sacrificed. What is paramount is the cause of justice andkeeping the basic ingredients which secure that as a core ideaand ideal, the process may be expedited, but fast tracking ofprocess must never ever result in burying the cause of justice.[Para 18][1233-C-D]

1.6 In the circumstances, going by the principles laid downin Bashira, the submission made by the Amicus Curiae is acceptedand held that the counsel appointed through Legal Services torepresent the appellant in the instant case ought to have beenafforded sufficient opportunity to study the matter and theinfraction in that behalf resulted in miscarriage of justice. In lightof the conclusion, there is no necessity to consider othersubmissions advanced by the Amicus Curiae. It is said by way ofcaution that in matters where death sentence could be one of thealternative punishments, the courts must be completely vigilantand see that full opportunity at every stage is afforded to theaccused. [Para 19][1233-E-G]

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A1.7 There is no hesitation in setting aside the judgments ofconviction and orders of sentence passed by the trial court andthe High Court against the appellant and directing de novoconsideration. It shall be open to the counsel representing theappellant in the trial court to make any submissions touchingupon the issues whether the charges framed by the trial courtBare required to be amended or not; whether any of the prosecutionwitnesses need to be recalled for further cross–examination; andwhether any expert evidence is required to be led in response tothe FSL report and DNA report. The matter shall, thereafter, beconsidered on the basis of available material on record inCaccordance with law. [Para 20][1233-H; 1234-A-B]

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1.8 Certain norms are laid down that in all cases wherethere is a possibility of life sentence or death sentence, Advocateswho have put in minimum of 10 years practice at the Bar alone beconsidered to be appointed as Amicus Curiae or through legalservices to represent an accused; that in all matters dealt withDby the High Court concerning confirmation of death sentence,Senior Advocates of the Court must first be considered to beappointed as Amicus Curiae ; that whenever any counsel isappointed as Amicus Curiae, some reasonable time may beprovided to enable the counsel to prepare the matter. ThereEcannot be any hard and fast rule in that behalf. However, aminimum of seven days’ time may normally be considered to beappropriate and adequate; that any counsel, who is appointed asAmicus Curiae on behalf of the accused must normally be grantedto have meetings and discussion with the concerned accused.Such interactions may prove to be helpful as was noticed in ImtiyazFRamzan Khan. [Para 22][1234-D-G]

Bashira v. State of U.P., [1969] 1 SCR 32 : AIR 1968SC 1313 - relied on.

Mohd. Hussain Alias Julfikar Ali v. State (Governmentof NCT of Delhi), (2012) 9 SCC 408 : [2012] 10 SCRG480; Re: Alla Nageswara Rao, Petitioner AIR 1957 AP505; Mathai Thommen v. State AIR 1959 Kerala 241;Hussainara Khatoon and Others (IV) v. Home Secretary,State of Bihar, Patna (1980) 1 SCC 98 : [2012] 6 SCR1182; Rajoo Alias Ramakant v. State of MadhyaHPradesh (2012) 8 SCC 553; Khatri and Others (II) v.

State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408;Suk Das v. Union Territory of Arunachal Pradesh,(1986) 2 SCC 401 : [1986] 1 SCR 590; Machander v.State of Hyderabad AIR 1955 SC 792 : [1955] 2 SCR524; Gopi Chand v. Delhi Admn AIR 1959 SC 609 :1959 Crl. L. J. 782; Tyron Nazareth v. State of Goa(1994) 3 Suppl. SCC 321; S. Guin v. Grindlays BankLtd. (1986) 1 SCC 654 : [1985] 3 Suppl. SCR 818;Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC225 : [1991] 3 Suppl. SCR 325 ; Hussainara Khatoon(1) v. State of Bihar (1980) 1 SCC 81 : [1979] 3 SCR169; Hussainara Khatoon (3) v. State of Bihar (1980)1 SCC 93; Raghubir Singh v. State of Bihar (1986) 4SCC 481; Kartar Singh v. State of Punjab (1994) 3SCC 569; Zahira Habibulla H. Sheikh v. State ofGujarat (2004) 4 SCC 158; Ankush Maruti Shinde andOthers v. State of Maharashtra, (2009) 6 SCC 667;Ambadas Laxman Shinde and Others v. State ofMaharashtra (2018) 14 SCALE 730 : (2018) 18 SCC788; Ankush Maruti Shinde and Others v. State ofMaharashtra (2019) SCC Online SC 317; ImtiyazRamzan Khan v. State of Maharashtra (2018) 9 SCC160; Imtiyaz Ramzan Khan v. State of Maharashtra(2018) 9 SCC 163; V. K. Sasikala v. State Representedby Superintendent of Police (2012) 9 SCC 771 –referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 62-63 of 2014.

From the Judgment and Order dated 27.06.2013 of the HighCourt of Madhya Pradesh at Jabalpur in Criminal Reference No. 4 ofF2013 and Criminal Appeal No.748 of 2013.

Varun Chopra, Dy. AG, Sidharth Luthra, Ms. Sonia Mathur,Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Ms. K. V. BharathiUpadhyaya, Gurtejpal Singh, Harsh Parashar, Sushil Kumar Dubey,Ms. Divya A. Nair, Puneet Pathak, Anuj Aggarwal, Anmol Chandan,GMs. Priyanka Das, Sumit Upadhyay, Arvind Kumar Sharma, Advs. forthe appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. These appeals by special leave challenge the final judgmentand order dated 27.06.2013 passed by the High Court[1]in CriminalReference No.4 of 2013 and Criminal Appeal No.748 of 2013.

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

(A) On 30.01.2013 a missing report was lodged by one Ramlalthat his daughter (hereinafter referred to as ‘the victim’) aged aboutnine years was missing since 6 pm and that the appellant, his neighbourhad sent the victim to get a bidi from a kirana shop but the victim neverreturned back. Pursuant to this reporting, FIR No.38 of 2013 wasregistered on 30.01.2013 with Police Station Chaigaon Makhan, Khandwafor offences under Sections 363, 366 of the Indian Penal Code.1860(‘IPC’, for short) against the appellant.

(B) The body of the victim was found in an open field on01.02.2013.

(C) The appellant was arrested on 04.02.2013, and after completionof investigation charge-sheet was filed on 13.02.2013 in the concernedcourt and the case was committed to Sessions Court on 18.2.2013. Thecase was posted for 19.02.2013 to consider whether charges be framedor not.

(D) It appears that since no Advocate had entered appearanceon behalf of the appellant, on 18.02.2013 a learned Advocate wasappointed by the Legal Aid Services Authority to represent the appellanton 19.02.2013. That learned Advocate, however, did not appear on19.02.2013 when the case was taken up, and as such another learnedAdvocate came to be appointed through Legal Aid Services to representthe appellant. Such appointment was done on 19.02.2013 and on thesame day the charges were framed against the appellant for the offencespunishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC andunder Sections 4, 5 and 6 of Protection of Children from Sexual OffencesAct, 2012.

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

1 The High Court of Madhya Pradesh at Jabalpur A

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(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013,1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court were :- “(i) 27.02.2013

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

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

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

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It would be just and proper to examine accused under Section313 Cr.P.C. for evidence available. Hence, accused examinedunder Section 313 Cr.P.C. On entering in defense, the accusedstated that he does not want to adduce any evidence in defense.Not any written statement under Section 232 (2) Cr.P.C. has beenfiled.

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

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Sessions Judge and Special JudgeUnder Protection of Children from Sexual Offences Act, Khandwa A

(ii) 28.02.2013

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

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Since there is no effective objection regarding allowing aboveapplication and taking on record above FSL report and evenotherwise these may be helpful in providing justice, hence reportsare taken on record.

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

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

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

Sd/-Sessions JudgeFKhandwa

(iii) 01.03.2013

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

The prosecution has not received DNA report, same will be placedon record on receipt.

Hearing of rest of final arguments started which remainedincomplete.

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

Sd/-Sessions JudgeKhandwa

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(iv) 02.03.2013

CThe accused is being tried under Section 9 of Protection ofChildren from Sexual Offences Act, 2012 and according toProvisions of Section 5 (f) of above Act, the situation of previousconviction for the sexual offence under Section 377 IPC is alsoclear and above fact has found mention in charge No.8 framed inearlier with intention that despite being previously convicted forDsexual offence under Section 377 IPC but in above charge datetime and place etc is not mentioned regarding convictionaccording to provisions of Section 211 (7) Cr.P.C. Hence, as isprovided under Section 211 (7) Cr.P.C. the Court before passingorder of conviction may add statement of fact, date and place ofEconviction, hence in this regard both the parties were heard. Inearlier the copy of judgment of previous conviction was not fileddue to which date, place etc were not mentioned in charge andduring examination under Section 313 Cr.P.C. in question No.14in this regard by giving reference of copy of judgment togetherwith date, time and place etc conviction was passed and appealFwas filed or not in this regard clear questions were asked, henceit also does not reflect that any prejudice has been caused toaccused nevertheless to avoid technical fault, according toprovisions of Section 211 (7) Cr.P.C. charge was modified andamended charge was read over and explained to accused and hisplea was recorded.

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

Prosecution today by placing on record certain additionaldocuments articles etc. led additional evidence and application H

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

The prosecution presented articles relating to case in sealedcondition and an application with documents was filed under Section311 Cr.P.C. Copy supplied. Arguments heard.

It is proposed to file received DNA report and correspondentof FSL/DNA and in above regard also request has been made tore-examine Investigating Officer K.K. Mishra (PW-13) and HeadConstable Harikaran PW-12 and accordingly, permission has beensought.

It has been stated that concerned document and report since werereceived in delay and it was filed as earliest and by virtue of thiscorrespondence relating to above are being filed now. It ismentioned that DNA report was received on 01.03.2013 itselfhence considering the reason so disclosed during argumentsdefense has not raised any effective objection hence, applicationstands allowed and concerned documents are taken on recordand witness K.K. Mishra PW-13 and Hari Karan PW-12 arepermitted to be re-examined.

It has been stated by the public prosecutor that above witnessesare present today, hence, above both the witnesses wereadditionally examined with consent of defense and they weredischarged after re-examination. Prosecution stated not to adduceany other evidence as such closed its evidence.

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

In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on entering indefense, the accused stated not to adduce any evidence in defensenor any written statement was filed under Section 232(2) Cr.P.C.and as such defense closed its evidence. Put up again for finalarguments.

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Sessions Judge and Special JudgeUnder Protection of Children from Sexual OffencesAct, Khandwa Again

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

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

Heard final arguments. Put up on 04.03.2013 for judgment.

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Sessions Judge and Special JudgeUnder Protection of Children from Sexual OffencesAct, khandwa D

(v) 4.3.2013

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

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The judgment pronounced and signed separately in open court,according to which accused was convicted under Section 363,366, 377, 376(2)(f) and Section 302 IPC read with Section 6 ofProtection of Children from Sexual Offences Act, 2012.

Arguments were heard on the question of sentence. It wasinformed to both the parties that if they wish, they may adduceevidence regarding order of sentence.

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It was stated by the prosecution that due to framing charge underSection 211(7) Cr.P.C. regarding previous conviction of accused,it has already adduced evidence at evidence stage regardingprevious conviction of accused and his previous criminal conduct,hence now he does not want to adduce evidence regardingconviction.

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On the other hand, learned counsel for the defense Shri D.S.Chauhan he has stated that during whole trial not any member ofHfamily of accused has appeared and in regard to his conduct in jail the prosecution itself has already adduced certificate etc. hencehe stated not to adduce any evidence regarding order of sentence,nevertheless both the parties were informed that if they wish toadduce any evidence in this regard, then they may do so. Bygiving above information to both the parties, detailed argumentswere heard regarding order of sentence.

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Put up again after some time for order of sentence.

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Sessions Judge and special Judge

Under Protection of Children from Sexual Offences Act, Khandwa C

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

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

No. Offence Sentence of FineIn default ofEU/s rigorouspayment of imprisonmentfine, additionalsentenceof rigorous imprisonmentF1. 302 IPC Death - - Sentence2. 363 IPC Seven years 1000/- One month3. 366 IPC Seven years 1000/- One monthG4. 377 IPC Seven years 1000/- One month5. 376(2) IPC Life 1000/- One month imprisonment H

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ADue to being similar act, no separate sentence is being awardedfor the offence under Section 6 of Protection of Children fromSexual Offences Act, 2012.

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

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

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

Sd/-Sessions Judge and Special JudgeUnder Protection of Children from Sexual OffencesAct, Khandwa E

(G) In its judgment and order dated 4.3.2013, the Trial Courtaccepted the case of the prosecution and stated:- “65. From above analysis it is clear that present case havingsimilar facts like judicial citation of Rajendra Prahladrao Vasnic isFin the category of ‘rarest of rare’ case and excess to that in thepresent case accused is previous convict in sexual offence ofsimilar nature. Hence, in view of above analysis imposing punishingof only imprisonment for life cannot be adequate and deathsentence is necessary.

G66. Accused Anokhilal son of Sitaram has been convicted in chargeof offence punishable under Section 363, 366, 376(2)(f), 377 and302 IPC and Section 6 of Protection of Children from SexualOffences Act, 2012 hence, according to analysis so done:

(one) for the offence under Section 302 IPC accused AnokhilalHson of Sitaram is awarded ‘death sentence’. By tying knot inneck, he be hanged till his death. It is also directed that above death sentence be not executed unless it is confirmed by theHon’ble High Court.

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

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

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

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

(Six) Considering the provisions of Section 42 of Act, where forsimilar act the accused has been convicted under the sections ofAct and IPC, then he should be sentenced for the offences havinglarger punishment and in this regard principle of Section 71

IPC is also perusable and in Section 376(2)(f) IPC and in Section6 of the Act, there is provision of punishment for imprisonmentfor life and minimum sentence of 10 yrs rigorous imprisonmentand for similar act, order of sentence is being passed for the offenceunder Section 376(2) (f) and Secton 377 IPC also, hence separateorder of sentence for the offence under Section 6 of Protectionof Children from Sexual Offences Act, 2012 is not being passed.

All the sentences of imprisonment shall run concurrently.

All the sentences of imprisonment shall run concurrently.

67. The accused is in detention since 04.02.2013 hence, letcertificate of the period undergone by him in detention during trialbe attached with warrant as per provisions section 428 Cr.P.C.which may be used for setting off under Section 428 Cr.P.C. oras per requirement for computing sentence as provided in Section433 Cr.P.C.

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

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

C70. I appreciate for assistance of all where in regard to incidentwhich happened in mid night of 30-31 January, after arrest ofaccused on 04.02.2013, completing investigation immediatelycharge-sheet was submitted on 18[th]February and to prosecutionwhich ensured quick trial by placing entire evidence from 19February to 02 March, 2013 and specially for assistance of defenceDbecause disposal of case is ensured within only 1 month of incidentonly because of above assistance and completing trial only in 12working days could be possible.”

(H) Criminal Reference No.4/2013 was accordingly registered inthe High Court for confirmation of death sentence. The appellant alsoEpreferred Criminal Appeal No.748 of 2013 challenging his convictionand sentence. The High Court by its judgment and order presently underappeal, affirmed the view taken by the Trial Court and upheld the deathsentence and other sentences imposed by the Trial Court. It was observedby the High Court as under:-F“8. ……. The victim was, thus, last seen alive with the accused “8. ……. The victim was, thus, last seen alive with the accusedby Kirti Bai whose evidence discloses that the victim and accusedwere seen together at the point of time in proximity with the timeand date of the commission of crime. Also after the incident noone saw the accused alone because he had absconded. We are,Gtherefore, of the view that the prosecution has successfullyestablished the last seen theory beyond any reasonable doubtagainst the accused.

9. We also find that the report, Ex.58, of the DNA Finger PrintingUnit completely connects the accused with the commission of H

crime. The report clearly states that the hairs seized from the fistof victim and the skin found in the cut-nails of victim belonged tothe accused. The report further states that the semen found onthe paijama of victim was of the accused. Not only this, accordingto the report, blood found on the underwear of accused was ofthe victim. The cremation of the body of victim was done on1.2.2013 whereas the accused was arrested on 4.2.2013. Therewas, therefore, no possibility of the blood of victim having beenput on the seized underwear of the accused.

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11. The evidence on record clearly establishes that the accusedwas close to the family of Ramlal and the victim trusted him.She, therefore, on his asking immediately rushed to buy “bidi”for him from a kirana shop. The accused then followed the victimwith a premeditated mind to commit the crime. The accused, takingadvantage of the trust of victim, after kidnapping and subjectingher to brutal rape and carnal sex most gruesomely throttled her todeath. The numerous injuries on the body of victim testify thisfact. He even dumped the body of victim in the field. Earlier also,the accused was convicted vide judgment dated 21.10.2010, Ex.49,for committing carnal sex with a small boy. Thus, an innocenthapless girl of nine years was subjected to a barbaric treatmentshowing extreme depravity and arouses a sense of revulsion inthe mind of a common man. We feel that the crime committedsatisfies the test of “rarest of rare” cases. We, therefore, upholdthe death sentence and also other sentences imposed by the trialcourt.”

3. During the pendency of these appeals in this Court, it wasobserved by this Court in its Order dated 12.12.2018 as under:- “One of the issues that has arisen in the present case is compliancewith the statutory timeframe fixed by proviso to Section 309(1)ofthe Cr.P.C.(as amended in 2018). That Section provides a timelimit of 60 days within which the trial is supposed to be completed.In this context, we consider it appropriate to explore the possibilityof using video-conferencing for the purpose of recording evidencesince it is believed that such use will eliminate the time taken forsummoning the witnesses to Court.

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

4. When these appeals came up for final hearing, certain issueswere highlighted by Mr. Siddharth Luthra, learned Senior Advocate whoappeared for the appellant on behalf of the Supreme Court Legal ServicesAuthority. According to him, the way the trial was conducted, there wasCno fairness at all and the interest of the appellant-accused was put toprejudice on more than one count. The principal submission was recordedin the order dated 10.12.2019 passed by this Court as under:- “In the submission of the learned Senior Counsel, following aspectsare, therefore, very clear:

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a) The learned Amicus Curiae came to be appointed the sameday when the charges were framed, which effectively meansthat the learned Amicus Curiae did not have sufficientopportunity to study the matter nor did he have any opportunityto have any interaction with the accused to seek appropriateEinstructions; The other issues noted in the Order dated 12.12.2018 werereferred to but it was observed:- “As presently advised, we will deal first with the issue pertainingto the present trial and whether the approach adopted by the TrialFCourt in the present matter could be accepted or whether therewas any infraction or error on the part of the Trial Court in adoptingthe approach in the present matter. Other issues, namelyapplicability of Section 309 and advisability of having video-conferencing in the matter will be dealt with at a later stage andGthe consideration of these issues, for the time being, is deferred.”5. The consideration at present is thus confined to the issue asstated above.

6. In support of his submissions, Mr. Sidharth Luthra, learned SeniorAdvocate, relied upon certain decisions of this court and, particularly, inH

Bashira vs. State of U.P.[2]and Mohd. Hussain Alias Julfikar Ali vs.State (Government of NCT of Delhi)[3]. Mr. Varun Chopra, DeputyAdvocate General appearing for the State, however, submitted that theevidence on record, without any doubt, pointed towards the guilt of theaccused and as such the order of conviction recorded by the Courtsbelow was correct and did not call for any interference.

7. In Bashira[2], the Trial Court had fixed 28[th] February, 1967as the date for starting the actual trial and, on that very day, beforebeginning the trial, an Amicus Curiae was appointed to represent theaccused. On that very day, the Trial Court amended the charge to whichthe accused pleaded not guilty and two principal prosecution witnesseswere examined. The other witnesses were examined on 1[st]March, 1967and the accused was also examined under Section 342 of the Code ofCriminal Procedure, 1898 (equivalent to Section 313 of the Code ofCriminal Procedure, 1973 or “the Code”, for short). The case wasthereafter fixed on 10[th]March, 1967 for arguments, on which date theAmicus Curiae presented an application for recall of one of theprosecution witnesses for further cross-examination. The applicationwas rejected. Arguments were then heard on the same day and thejudgment was delivered on 13[th]March, 1967 convicting the accusedfor the offence under Section 302 IPC and sentencing him to death. Inthe backdrop of these facts, the submissions of the Amicus Curiaeappearing in this Court were recorded as under:- “2. In this case, the principal ground urged on behalf of theappellant raises an important question of law. Learned counselappearing for the appellant emphasised the circumstance that theamicus curiae counsel to represent the appellant was appointedby the Sessions Judge on 28th February, 1967, just when the trialwas about to begin and this belated appointment of the counseldeprived the appellant of adequate legal aid, so that he was unableto defend himself properly. It was urged that the procedureadopted by the court was not in accordance with law, so that, ifthe sentence of death is carried out, the appellant will be deprivedof his life in breach of his fundamental right under Article 21 ofthe Constitution which lays down that no person shall be deprivedof his life or personal liberty, except according to procedureestablished by law.”

2 (1969) 1 SCR 32 : AIR 1968 SC 1313

3 (2012) 9 SCC 408

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The submissions were dealt with as under:- “8. There is nothing on the record to show that, after hisappointment as counsel for the appellant, Sri Shukla was givensufficient time to prepare the defence. The order-sheet maintainedby the Judge seems to indicate that, as soon as the counsel wasappointed, the charge was read out to the accused and, after hisplea had been recorded, examination of witnesses began. Thecounsel, of course, did his best to cross-examine the witnesses tothe extent it was possible for him to do in the very short timeavailable to him. It is true that the record also does not containany note that the counsel asked for more time to prepare thedefence, but that, in our opinion, is immaterial. The Rule casts aduty on the court itself to grant sufficient time to the counsel forthis purposeand the record should show that the Rule wascomplied with by granting him time which the court consideredsufficient in the particular circumstances of the case. In this case,the record seems to show that the trial was proceeded withimmediately after appointing the amicus curiae counsel and that,in fact, if any time at all was granted, it was nominal. In thesecircumstances, it must be held that there was no compliance withthe requirements of this Rule.

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E9. In this connection, we may refer to the decisions of two of theHigh Courts where a similar situation arose. In Re: AllaNageswara Rao, Petitioner[4]reference was made to Rule 228of the Madras Criminal Rules of Practice which provided forengaging a pleader at the cost of the State to defend an accusedperson in a case where a sentence of death could be passed. ItFwas held by Subba Rao, Chief Justice as he then was, speakingfor the Bench, that:

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

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This view was expressed on the basis of the fact found that theadvocate had been engaged for the accused two hours prior tothe trial. In Mathai Thommen v. State[5]the Kerala High Courtwas dealing with a Sessions trial in which the counsel was engagedto defend the accused on 2nd August, 1958, when the trial wasposted to begin on 4th August, 1958, showing that barely morethan a day was allowed to the counsel to get prepared and obtaininstructions from the accused. Commenting on the procedureadopted by the Sessions Court, the High Court finally expressedits opinion by saying:

“Practices like this would reduce to a farce the engagementof counsel under Rule 21 of the Criminal Rules of Practice which has been made for the purpose of effectively carryingout the duty cast on courts of law to see that no one is deprivedof life and liberty without a fair and reasonable opportunitybeing afforded to him to prove his innocence. We considerthat in cases like this counsel should be engaged at least some10 to 15 days before the trial and should also be furnished withcopies of the records.”

In our opinion, no hard and fast rule can be laid down as to thetime which must elapse between the appointment of the counseland the beginning of the trial; but, on the circumstances of eachcase, the Court of Session must ensure that the time granted tothe counsel is sufficient to prepare for the defence. In the presentcase, when the counsel was appointed just before the trial started,it is clear that there was failure to comply with the requirementsof the rule of procedure in this behalf.

(Emphasis by us)

It was also stated that the violation of the mandate of the concernedRule would amount to breach of rights conferred by Article 21 of theConstitution as under:

“In these circumstances, conviction of the appellant in a trial heldin violation of that Rule and the award of sentence of death willresult in the deprivation of his life in breach of the procedureestablished by law.”

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AThe operative part of the decision was :- “As a consequence, we set aside the conviction and sentence ofthe appellant. Since we are holding that the conviction is voidbecause of an error in the procedure adopted at the trial, we directthat the appellant shall be tried afresh for this charge afterBcomplying with the requirements of law, so that the case isremanded to the Court of Session for this purpose.”

8. In Hussainara Khatoon and others (IV) v. Home Secretary,State of Bihar, Patna[6]it was observed as under:

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

“39-A. Equal justice and free legal aid.—The State shallsecure that the operation of the legal system promotes justice,on a basis of equal opportunity, and shall, in particular, providefree legal aid, by suitable legislation or schemes or in any otherDway, to ensure that opportunities for securing justice are notdenied to any citizen by reason of economic or other disabilities.”

(emphasis added)

This article also emphasises that free legal service is anunalienable element of “reasonable, fair and just” procedureEfor without it a person suffering from economic or otherdisabilities would be deprived of the opportunity for securingjustice. The right to free legal services is, therefore, clearlyan essential ingredient of “reasonable, fair and just”, procedurefor a person accused of an offence and it must be held implicitFin the guarantee of Article 21. This is a constitutional right ofevery accused person who is unable to engage a lawyer andsecure legal services on account of reasons such as poverty,indigence or incommunicado situation and the State is under amandate to provide a lawyer to an accused person if thecircumstances of the case and the needs of justice so require,Gprovided of course the accused person does not object to theprovision of such lawyer.…….”

9. The developments in the matter of providing free Legal Aid astranslated in various schemes and dealt with in the decisions of this H6 (1980) 1 SCC 98

Court, were noted in Rajoo Alias Ramakant v. State of MadhyaPradesh[7]as under:

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

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

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

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

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

10. The Act provides, inter alia, for the constitution of a NationalLegal Services Authority, a Supreme Court Legal ServicesCommittee, State Legal Services Authorities as well as TalukLegal Services Committees. Section 12 of the Act lays down thecriteria for providing legal services. It provides, inter alia, thatevery person who has to file or defend a case shall be entitled tolegal services, if he or she is in custody. Section 13 of the Actprovides that persons meeting the criteria laid down in Section 12of the Act will be entitled to legal services provided the authorityconcerned is satisfied that such person has a prima facie case toprosecute or defend.

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

Decisions of this Court

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

13. Among the first few decisions in this regard is HussainaraKhatoon (4) v. Home Secretary, State of Bihar, Patna[6]. In thatcase, reference was made to Article 39-A of the Constitution andit was held that (SCC p. 105, para 7) free legal service is aninalienable element of “‘reasonable, fair and just’, procedure fora person accused of an offence and it must be held implicit in theguarantee of Article 21 [of the Constitution]”. It was noted that:“This is a constitutional right of every accused person who isunable to engage a lawyer and secure [free] legal services onaccount of reasons such as poverty, indigence or incommunicadosituation.” It was held that the State is under a mandate to providea lawyer to an accused person if the circumstances of the caseand the needs of justice so require, subject of course to the accusedperson not objecting to the providing of a lawyer.

14. The essence of this decision was followed in Khatri andothers (II) v. State of Bihar[8]. In that case, it was noted that theJudicial Magistrate did not provide legal representation to theaccused persons because they did not ask for it. This was foundto be unacceptable. This Court went further and held that it was H8 (1981) 1 SCC 627

the obligation of the Judicial Magistrate before whom the accusedwere produced to inform them of their entitlement to legalrepresentation at State cost. In this context, it was observed thatthe right to free legal services would be illusory unless theMagistrate or the Sessions Judge before whom the accused isproduced informs him of this right. It would also make a mockeryof legal aid if it were to be left to a poor, ignorant and illiterateaccused to ask for free legal services thereby rendering theconstitutional mandate a mere paper promise.

15. Suk Das v. Union Territory of Arunachal Pradesh[9]reiterated the requirement of providing free and adequate legalrepresentation to an indigent person and a person accused of anoffence. In that case, it was reiterated that an accused need notask for legal assistance—the Court dealing with the case is obligedto inform him or her of the entitlement to free legal aid. ThisCourt observed that (SCC p. 407, para 5) it was now “settled law that free legal assistance at State cost is afundamental right of a person accused of an offence whichmay involve jeopardy to his life or personal liberty and thisfundamental right is implicit in the requirement of reasonable,fair and just procedure prescribed by Article 21 [of theConstitution]”.

16. Since the requirements of law were not met in that case, andin the absence of the accused person being provided with legalrepresentation at State cost, it was held that there was a violationof the fundamental right of the accused under Article 21 of theConstitution. The trial was held to be vitiated on account of afatal constitutional infirmity and the conviction and sentence wereset aside.

17. We propose to briefly digress and advert to certain observationsmade, both in Khatri (2)[8] and Suk Das[9]In both cases, this Courtcarved out some exceptions in respect of grant of free legal aidto an accused person. It was observed that: (SCC p. 632, para 6)

“6. … There may be cases involving offences such as economicoffences or offences against law prohibiting prostitution or child 9 (1986) 2 SCC 401

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abuse and the like, where social justice may require that freelegal services need not be provided by the State.”

We have some reservations whether such exceptions can becarved out particularly keeping in mind the constitutional mandateand the universally accepted principle that a person is presumedBinnocent until proven guilty. If such exceptions are accepted, theremay be a tendency to add some more, such as in cases ofterrorism, thereby diluting the constitutional mandate and thefundamental right guaranteed under Article 21 of the Constitution.However, we need not say anything more on this subject sincethe issue is not before us.

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

D10. In Mohd. Hussain @ Julfikar Ali v. State (Government ofNCT of Delhi)[3]one of the submissions advanced on behalf of the accusedwas that he was denied right of a counsel and thus was not given fairand impartial trial. H.L. Dattu, J. (as the learned Chief Justice then was)in para 7 of his decision quoted orders passed by the Trial Court andin paras 10 to 12 observed that the evidence of 56 witnesses was recordedEby the Trial Court without providing a counsel to the appellant-accused.It was stated: - D

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

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

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20. In Machander v. State of Hyderabad[10], it has been statedby this Court that while it is incumbent on the court to see that noguilty person escapes but the court also has to see that justice isnot delayed and the accused persons are not indefinitely harassed.The Court further stated that the scale must be held even betweenthe prosecution and the accused.

21. In Gopi Chand v. Delhi Admn[11], a Constitution Bench of thisCourt was concerned with the criminal appeals wherein plea ofthe validity of the trial and of the orders of conviction and sentencewas raised by the appellant. That was a case where the appellantwas charged for three offences which were required to be triedas a warrant case by following the procedure prescribed in theCriminal Procedure Code, 1898 but he was tried under theprocedure prescribed for the trial of a summons case. Theprocedure for summons case and warrants case was materiallydifferent. The Constitution Bench held that having regard to thenature of the charges framed and the character and volume ofevidence led, the appellant was prejudiced; the trial of the threecases against the appellant was vitiated and the orders ofconviction and sentence were rendered invalid. The Court,accordingly, set aside the orders of conviction and sentence. Whiledealing with the question as to what final order should be passedin the appeals, the Constitution Bench held as under: (AIR pp.619-20, para 29)

“29. … The offences with which the appellant standscharged are of a very serious nature; and though it is true thathe has had to undergo the ordeal of a trial and has sufferedrigorous imprisonment for some time that would not justify hisprayer that we should not order his retrial. In our opinion, havingregard to the gravity of the offences charged against theappellant, the ends of justice require that we should direct thathe should be tried for the said offences de novo according tolaw. We also direct that the proceedings to be taken againstthe appellant hereafter should be commenced without delayand should be disposed as expeditiously as possible.”

10 AIR 1955 SC 792 : (1955) 2 SCR 524

11 AIR 1959 SC 609 : 1959 Crl. L. J. 782

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22. A two-Judge Bench of this Court in Tyron Nazareth v. Stateof Goa[12], after holding that the conviction of the appellant wasvitiated as he was not provided with legal aid in the course of trial,ordered retrial. The brief order reads as follows: (SCC p. 322,para 2)

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B“2. We have heard the learned counsel for the State. Wehave also perused the decisions of this Court in Khatri (2) v.State of Bihar[8]and Sukh Das v. UT, Arunachal Pradesh[9].We find that the appellant was not assisted by any lawyer andperhaps he was not aware of the fact that the minimumsentence provided under the statute was 10 years’ rigorousCimprisonment and a fine of Rs 1 lakh. We are, therefore, of theopinion that in the circumstances the matter should go back tothe tribunal. The appellant if not represented by a lawyer maymake a request to the court to provide him with a lawyer underSection 304 of the Criminal Procedure Code or under any otherDlegal aid scheme and the court may proceed with the trial afresh after recording a plea on the charges. The appeal is allowedaccordingly. The order of conviction and sentence passed bythe Special Court and confirmed by the High Court are setaside and a de novo trial is ordered hereby.”

E23. This Court in S. Guin v. Grindlays Bank Ltd.[13]was concernedwith the case where the trial court acquitted the appellants ofthe offence punishable under Section 341 IPC read with Section36-AD of the Banking Regulation Act, 1949. The charge againstthe appellants was that they had obstructed the officers of theBank, without reasonable cause, from entering the premises of aFbranch of the Bank and also obstructed the transaction of normalbanking business. Against their acquittal, an appeal was preferredbefore the High Court which allowed it after a period of six yearsand remanded the case for retrial. It was from the order of remandfor retrial that the matter reached this Court. This Court whileGsetting aside the order of remand in para 3 of the Report held asunder: (SCC pp. 655-56)

“3. After going through the judgment of the Magistrate and ofthe High Court we feel that whatever might have been the 12 1994 Supp (3) SCC 321H13 (1986) 1 SCC 654

error committed by the Magistrate, in the circumstances ofthe case, it was not just and proper for the High Court to haveremanded the case for fresh trial, when the order of acquittalhad been passed nearly six years before the judgment of theHigh Court. The pendency of the criminal appeal for six yearsbefore the High Court is itself a regrettable feature of thiscase. In addition to it, the order directing retrial has resulted inserious prejudice to the appellants. We are of the view thathaving regard to the nature of the acts alleged to have beencommitted by the appellants and other attendantcircumstances, this was a case in which the High Court shouldhave directed the dropping of the proceedings in exercise ofits inherent powers under Section 42 of the Criminal ProcedureCode even if for some reason it came to the conclusion thatthe acquittal was wrong. A fresh trial nearly seven years afterthe alleged incident is bound to result in harassment and abuseof judicial process.”

24. The Constitution Bench of this Court in Abdul RehmanAntulay v. R.S. Nayak[14]considered right of an accused to speedytrial in light of Article 21 of the Constitution and various provisionsof the Code. The Constitution Bench also extensively referred tothe earlier decisions of this Court in Hussainara Khatoon (1) v.State of Bihar[15], Hussainara Khatoon (3) v. State of Bihar[16],Hussainara Khatoon (4) v. State of Bihar[6]and Raghubir Singhv. State of Bihar[17]and noted that the provisions of the Code areconsistent with the constitutional guarantee of speedy trialemanating from Article 21. In para 86 of the Report, the Courtframed guidelines. Sub-paras (9) and (10) thereof read as under:(Abdul Rehman Antulay case14, SCC p. 272)

“86. (9) Ordinarily speaking, where the court comes to theconclusion that right to speedy trial of an accused has beeninfringed the charges or the conviction, as the case may be,shall be quashed. But this is not the only course open. Thenature of the offence and other circumstances in a given case 14 (1992) 1 SCC 22515 (1980) 1 SCC 81

16 (1980) 1 SCC 93

17 (1986) 4 SCC 481

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may be such that quashing of proceedings may not be in theinterest of justice. In such a case, it is open to the court tomake such other appropriate order—including an order toconclude the trial within a fixed time where the trial is notconcluded or reducing the sentence where the trial hasconcluded—as may be deemed just and equitable in thecircumstances of the case.

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

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25. In Kartar Singh v. State of Punjab[18], it was stated by thisCourt that no doubt liberty of a citizen must be zealouslyEsafeguarded by the courts; nonetheless the courts while dispensingjustice should keep in mind not only the liberty of the accused butalso the interest of the victim and their near and dear and aboveall the collective interest of the community and the safety of thenation so that the public may not lose faith in the system of judicialFadministration and indulge in private retribution. In that case, theCourt was dealing with a case under the TADA Act.”

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It was thus held that the impugned judgment was required to bereversed and the matter was to be remanded for fresh trial. C.K. Prasad,J. concurred with H.L. Dattu, J. and accepted that the Judgments ofconviction and sentence be set aside as the appellant-accused was notgiven assistance of a lawyer to defend himself during trial. However, inhis view, the case was not required to be remanded for fresh trial andthe benefit of complete acquittal be given to the appellant-accused.

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On this difference of opinion, the matter went to a Bench of threeJudges which accepted the view taken by H.L. Dattu, J. and directedde novo trial. It was observed[3]:- “15. Section 304 of the Code mandates legal aid to the accusedat State’s expense in a trial before the Court of Session where theaccused is not represented by a pleader and where it appears tothe court that the accused has not sufficient means to engage apleader.

… … …

38. In Best Bakery case[19], the Court also made the followingobservations: (SCC p. 187, paras 38-40)

“38. A criminal trial is a judicial examination of the issues inthe case and its purpose is to arrive at a judgment on an issueas to a fact or relevant facts which may lead to the discoveryof the fact issue and obtain proof of such facts at which theprosecution and the accused have arrived by their pleadings;the controlling question being the guilt or innocence of theaccused. Since the object is to mete out justice and to convictthe guilty and protect the innocent, the trial should be a searchfor the truth and not about over technicalities, and must beconducted under such rules as will protect the innocent, andpunish the guilty. The proof of charge which has to be beyondreasonable doubt must depend upon judicial evaluation of thetotality of the evidence, oral and circumstantial, and not byan isolated scrutiny.

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

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in recognition and just application of its principles in substance,to find out the truth and prevent miscarriage of justice.”

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

“52. Whether a retrial under Section 386 of the Code ortaking up of additional evidence under Section 391 of the Code[in a given case] is the proper procedure will depend on thefacts and circumstances of each case for which no straitjacketformula of universal and invariable application can beformulated.”

40. “Speedy trial” and “fair trial” to a person accused of acrime are integral part of Article 21. There is, however,qualitative difference between the right to speedy trial and theaccused’s right of fair trial. Unlike the accused’s right of fairtrial, deprivation of the right to speedy trial does not per seprejudice the accused in defending himself. The right to speedytrial is in its very nature relative. It depends upon diversecircumstances. Each case of delay in conclusion of a criminaltrial has to be seen in the facts and circumstances of suchcase. Mere lapse of several years since the commencementof prosecution by itself may not justify the discontinuance ofprosecution or dismissal of indictment. The factors concerningthe accused’s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence ofthe people in judicial system. Speedy trial secures rights to anaccused but it does not preclude the rights of public justice.The nature and gravity of crime, persons involved, social impactand societal needs must be weighed along with the right of theaccused to speedy trial and if the balance tilts in favour of theformer the long delay in conclusion of criminal trial should notoperate against the continuation of prosecution and if the rightof the accused in the facts and circumstances of the case andexigencies of situation tilts the balance in his favour, theprosecution may be brought to an end. These principles mustapply as well when the appeal court is confronted with thequestion whether or not retrial of an accused should beordered.”

11. In Ankush Maruti Shinde and others vs. State ofMaharashtra[20]the High Court had upheld the conviction and deathsentence imposed upon accused nos. 1, 2 and 4 while accused nos. 3, 5and 6 were sentenced to imprisonment for life. The appeals were preferredby accused nos. 1, 2 and 4 against their conviction and sentence whileCriminal Appeal Nos. 881-882 of 2009 were preferred by the Stateseeking enhancement of sentence of life imprisonment to death sentencein respect of accused nos. 3, 5 and 6. In the Appeals preferred by theState, notice was served upon accused nos. 3, 5 and 6 only on 6.12.2008.However, even before service of such notice, the hearing in respectof all the appeals had begun on 04.12.2008. On 10.12.2008 the learnedcounsel who was appearing for the accused nos. 1, 2 and 4 was appointedas Amicus Curiae to represent accused nos. 3, 5 and 6. The hearingwas concluded the same day and the judgment was reserved. By itsdecision dated 30.04.2009 this Court allowed the Appeals preferred bythe State and imposed death sentence upon accused nos. 3, 5 and 6while confirming the death sentence in respect of accused nos. 1, 2 and4. All six accused were thus sentenced to death.

Thereafter, Review Petition (Crl.) Nos. 34-35 of 2010 werepreferred by accused nos. 1, 2 and 4 while Review Petition (Crl.)Nos.18-19 of 2011 were preferred by accused nos. 3, 5 and 6. While allowingReview Petitions by its Order dated 31.10.2018[21], this Court observed:- “From the above narration of facts, it is evident that AccusedNos. 3, 5 and 6 had no opportunity to be heard by the Bench,before the appeals filed by the State of Maharashtra forenhancement of sentence were decided. They have beendeprived of an opportunity of engaging counsel and of urging suchsubmissions as they may have been advised to urge in defenceto the appeals filed by the State for enhancement.”

This Court, therefore, recalled the Judgment and order dated30.04.2009 and the Criminal Appeals were restored to the file of thisCourt to be considered on merits.

Subsequently, a Bench of three Judges by its decision dated05.03.2019[22] acquitted the concerned accused of the charges levelled 20 (2009) 6 SCC 667

21 Ambadas Laxman Shinde and others vs. State of Maharashtra - (2018) 14 SCALE730 = (2018) 18 SCC 788

22 2019 SCC Online SC 317 - Ankush Maruti Shinde and others vs. State of Maharashtra AB

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Aagainst them. This Court also dismissed the appeals preferred by theState for enhancement of sentence qua accused Nos.3, 5 and 6.

12. In Imtiyaz Ramzan Khan vs. State of Maharashtra[23]itwas observed by this Court:- “4. We now come to the common feature between these twoBmatters. Mr. Shikhil Suri, learned advocate appeared for theaccused in both the matters. On previous dates letters werecirculated by the learned advocate appearing for the petitionersthat the matters be adjourned so as to enable the counsel to makearrangements for conducting video conferencing with the accusedCconcerned. The letter further stated that this exercise was mademandatory as per the directions of the Supreme Court LegalServices Committee. This Court readily agreed[24] and adjournedthe matters. On the adjourned date, we enquired from Mr. ShikhilSuri, learned advocate whether he could successfully get in touchwith the accused concerned. According to the learned advocateDhe could not get in touch with the accused in the first matter butcould speak with his sister whereas in the second matter he couldhave video conference with the accused.

5. In our view such a direction on part of the Supreme CourtLegal Services Committee is quite commendable andEpraiseworthy. Very often we see that the learned advocates whoappear in matters entrusted by the Supreme Court Legal ServicesCommittee, do not have the advantage of having had a dialoguewith either the accused or those who are in the know of the detailsabout the case. This at times seriously hampers the efforts onFpart of the learned advocates. All such attempts to facilitatedialogue between the counsel and his client would further thecause of justice and make legal aid meaningful. We, therefore,direct all Legal Services Authorities/Committees in every Stateto extend similar such facility in every criminal case wherever theaccused is lodged in jail. They shall extend the facility of videoGconferencing between the counsel on one hand and the accusedor anybody in the know of the matter on the other, so that thecause of justice is well served.”

23 (2018) 9 SCC 160H24 (2018) 9 SCC 163 – Imtiyaz Ramzan Khan vs. State of Maharashtra

13. The following principles, therefore, emerge from the decisionsreferred to hereinbove:- a)Article 39-A inserted by the 42nd amendment to theConstitution, effected in the year 1977, provides for freelegal aid to ensure that opportunities for securing justiceare not denied to any citizen by reason of economic orother disabilities. The statutory regime put in place includingthe enactment of the Legal Services Authorities Act, 1987is designed to achieve the mandate of Article 39-A.

b)It has been well accepted that Right to Free Legal Servicesis an essential ingredient of ‘reasonable, fair and just’procedure for a person accused of an offence and it mustbe held implicit in the right guaranteed by Article 21.The extract from the decision of this Court in Best Bakerycase[19](as quoted in the decision in Mohd. Hussain[3])emphasizes that the object of criminal trial is to search forthe truth and the trial is not about over technicalities andmust be conducted in such manner as will protect theinnocent and punish the guilty.

c)Even before insertion of Article 39-A in the Constitution,the decision of this Court in Bashira[2]put the matter beyondany doubt and held that the time granted to the AmicusCuriae in that matter to prepare for the defense wascompletely insufficient and that the award of sentence ofdeath resulted in deprivation of the life of the accused andwas in breach of the procedure established by law.

d)The portion quoted in Bashira[2]from the judgment of theMadras High Court authored by Subba Rao, J., the thenChief Justice of the High Court, stated with clarity thatmere formal compliance of the rule under which sufficienttime had to be given to the counsel to prepare for the defensewould not carry out the object underlying the rule. It wasfurther stated that the opportunity must be real where thecounsel is given sufficient and adequate time to prepare.

e)In Bashira[2]as well as in Ambadas[21], making substantialprogress in the matter on the very day after a counsel was A

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Aengaged as Amicus Curiae, was not accepted by this Courtas compliance of ‘sufficient opportunity’ to the counsel.

14. In the present case, the Amicus Curiae, was appointed on19.02.2013, and on the same date, the counsel was called upon to defendthe accused at the stage of framing of charges. One can say with certaintyBthat the Amicus Curiae did not have sufficient time to go through eventhe basic documents, nor the advantage of any discussion or interactionwith the accused, and time to reflect over the matter. Thus, even beforethe Amicus Curiae could come to grips of the matter, the charges wereframed.

CThe concerned provisions viz. Sections 227 and 228 of the Codecontemplate framing of charge upon consideration of the record of thecase and the documents submitted therewith, and after ‘hearing thesubmissions of the accused and the prosecution in that behalf’. Ifthe hearing for the purposes of these provisions is to be meaningful, andnot just a routine affair, the right under the said provisions stood deniedDto the appellant.

15. In our considered view, the Trial Court on its own, ought tohave adjourned the matter for some time so that the Amicus Curiaecould have had the advantage of sufficient time to prepare the matter.The approach adopted by the Trial Court, in our view, may have expeditedEthe conduct of trial, but did not further the cause of justice. Not onlywere the charges framed the same day as stated above, but the trialitself was concluded within a fortnight thereafter. In the process, theassistance that the appellant was entitled to in the form of legal aid,could not be real and meaningful.

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16. There are other issues which also arise in the matter namelythat the examination of 13 witnesses within seven days, the examinationof the accused under the provisions of the Section 313 of the Codeeven before the complete evidence was led by the prosecution, and notwaiting for the FSL and DNA reports in the present case. DNA reportGdefinitely formed the foundation of discussion by the High Court.However, the record shows that the DNA report was received almostat the fag end of the matter, and after such receipt, though technically anopportunity was given to the accused, the issue on the point was concludedthe very same day. The concluding paragraphs of the judgment of theTrial Court show that the entire trial was completed in less than one H

month with the assistance of the prosecution as well as the defense,but, such expeditious disposal definitely left glaring gaps.

17. In V.K. Sasikala vs. State Represented by Superintendentof Police[25]a caution was expressed by this Court as under:- “23.4 While the anxiety to bring the trial to its earliest conclusionhas to be shared it is fundamental that in the process none of thewell- entrenched principles of law that have been laboriously builtby illuminating judicial precedents are sacrificed or compromised.In no circumstance, can the cause of justice be made to suffer,though, undoubtedly, it is highly desirable that the finality of anytrial is achieved in the quickest possible time.”

18. Expeditious disposal is undoubtedly required in criminal mattersand that would naturally be part of guarantee of fair trial. However, theattempts to expedite the process should not be at the expense of thebasic elements of fairness and the opportunity to the accused, on whichpostulates, the entire criminal administration of justice is founded. In thepursuit for expeditious disposal, the cause of justice must never beallowed to suffer or be sacrificed. What is paramount is the cause ofjustice and keeping the basic ingredients which secure that as a coreidea and ideal, the process may be expedited, but fast tracking of processmust never ever result in burying the cause of justice.

19. In the circumstances, going by the principles laid down inBashira[2], we accept the submission made by Mr. Luthra, the learnedAmicus Curiae and hold that the learned counsel appointed throughLegal Services to represent the appellant in the present case ought tohave been afforded sufficient opportunity to study the matter and theinfraction in that behalf resulted in miscarriage of justice. In light of theconclusion that we have arrived at, there is no necessity to considerother submissions advanced by Mr. Luthra, the learned Amicus Curiae.

All that we can say by way of caution is that in matters wheredeath sentence could be one of the alternative punishment, the courtsmust be completely vigilant and see that full opportunity at every stage isafforded to the accused.

20. We, therefore, have no hesitation in setting aside the judgmentsof conviction and orders of sentence passed by the Trial Court and the 25 (2012) 9 SCC 771

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AHigh Court against the appellant and directing de novo consideration. Itshall be open to the learned counsel representing the appellant in theTrial Court to make any submissions touching upon the issues (i) whetherthe charges framed by the Trial Court are required to be amended ornot; (ii) whether any of the prosecution witnesses need to be recalledfor further cross-examination; and (iii) whether any expert evidence isBrequired to be led in response to the FSL report and DNA report. Thematter shall, thereafter, be considered on the basis of available materialon record in accordance with law.

21. It must be stated that the discussion by this Court was purelyconfined to the issue whether, while granting free Legal Aid, the appellantCwas extended real and meaningful assistance or not. The discussion inthe matter shall not be taken to be a reflection on the merits of thematter, which shall be considered and gone into, uninfluenced by anyobservations made by us.

22. Before we part, we must lay down certain norms so that theDinfirmities that we have noticed in the present matter are not repeated:-

i) In all cases where there is a possibility of life sentence or deathsentence, learned Advocates who have put in minimum of 10 yearspractice at the Bar alone be considered to be appointed as Amicus Curiaeor through legal services to represent an accused.Eii) In all matters dealt with by the High Court concerningconfirmation of death sentence, Senior Advocates of the Court mustfirst be considered to be appointed as Amicus Curiae.

iii) Whenever any learned counsel is appointed as Amicus Curiae,some reasonable time may be provided to enable the counsel to prepareFthe matter. There cannot be any hard and fast rule in that behalf.However, a minimum of seven days’ time may normally be consideredto be appropriate and adequate.

iv) Any learned counsel, who is appointed as Amicus Curiae onbehalf of the accused must normally be granted to have meetings andGdiscussion with the concerned accused. Such interactions may prove tobe helpful as was noticed in Imtiyaz Ramzan Khan[23].

23. In the end, we express our appreciation and gratitude for theassistance given by Mr. Luthra, the learned Amicus Curiae and requesthim to assist this Court for deciding other issues as noted in the OrdersH

dated 12.12.2018 and 10.12.2019 passed by this Court, for which purposethese matters be listed on 18.02.2020 before the appropriate Bench.

24. With the aforesaid observations, the substantive appeals standdisposed of, but the matter be listed on 18.02.2020 as directed.

Nidhi Jain

Appeals disposed of with directions.

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