TMI Blog2012 (1) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... o be accurate statement of facts, proceeds on these lines: 2. On 30-12-1997 at about 6.20 p.m. one blueline bus No. DL-IP-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at the Ram Pura Bus Stand on Rohtak Road for passengers to get down. The moment that bus stopped there an explosion took place inside the bus because of which its floor got ripped apart. Four passengers of that bus, namely, Ms. Tapoti, Taj Mohd. Narain Jha and Rajiv Verma died and twenty four passengers including the conductor of that bus were injured due to that explosion. Two policemen (PWs 41 52) were on checking duty at that but stop at the time of blast. On their informing the local police station police team reached the spot. Crime team and bomb disposal squad were also called and the damaged bus was inspected and from the spot debris etc. were lifted and sealed. 3. On the basis of the statement of Head Constable Suresh (PW-41), who was one of the two policemen on duty at the bus stop of Rampura, a case under Section 307 Indian Penal Code and Section 3, 4 and 5 of the Explosive Substances Act was registered at Punjabi Bagh police station. Investigation commenced immediately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that during the interrogation by the police the Appellant and three more persons, namely, Abdul Rehman, Mohd. Ezaz Ahmed and Mohd. Maqsood confessed about their involvement in the present incident of bomb blast in the bus on 30.12.1997. That information was then passed over to Punjabi Bagh police station on 18.03.1998 by the Crime Branch and accordingly all these four persons were formally arrested for the present case also on 21.3.1998 for which date the investigating officer of the present case had sought their production in court by getting issued production warrants from the court seized of the above referred case of FIR No. 49/1998. The investigating officer moved an application before the concerned court on the same day for holding of Test Identification Parade (TIP) in respect of the Appellant in view of the suspicion expressed by PW-1 Darshan Kumar, the conductor of the bus involved in the blast regarding one passenger who had boarded his bus from Paharganj bus stop along with a rexine bag for going to Nangloi but instead of going upto Nangloi he had got down from the bus at Karol Bagh leaving his rexine bag underneath the seat which he had taken and which was ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded, both before the Trial Court and the High Court, that he was not given a fair and impartial trial and he was denied the right of a Counsel. The High Court has noticed this contention and has answered against the Appellant. In the words of the High Court: 45. Faced with this situation Mr. Luthra came out with an arguments that this case, in fact, needs to be remanded back to the trial back for a fresh trial because the trial court record would reveal that the accused did not have a fair trial inasmuch as on most of the hearing when material witnesses were examined he was unrepresented and the trial court did not bother to provide him legal aid at State expense and by not doing that the Trial Court, in fact, failed to discharge its pious duty of ensuring that the accused was defended properly and effectively at all stages of the trial either by his private Counsel or in the absence of private Counsel by an experienced and responsible amicus curiae. Mr. Luthra also submitted that, in fact, the learned Additional Sessions Judge himself should have taken active part at the time of recording of evidence of prosecution witnesses by putting questions to the witnesses who had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used, who was ultimately discharged with nil cross-examination. This shows that accused himself was not interested in cross-examining the witnesses. As such, this submission is also without merit. 47. We have ourselves also perused the trial court record and we are convinced that it is not a case where it can be said that the accused did not have a fair trial or that he had been denied legal aid. We are in full agreement with the above quoted views of the learned Additional Sessions Judge on this objection of the accused and we refuse to accept the plea of the Appellant that this case should be remanded back for a re-trial. 4. I have heard Learned Counsel Mr. Mobin Akhtar for the Appellant and Mr. J.S. Atri, learned senior Counsel for the State. 5. In this Court, the judgments are assailed, apart from the merits, that the Appellant is denied due process of law and the conduct of the trial is contrary to procedure prescribed under the provisions of Code of Criminal Procedure and, in particular, that he was not given a fair and impartial trial and was denied the right of a Counsel. Since the aforesaid issue is of vital importance, I have thought it fit to answer that issue b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. PW.2 examined and discharged. No other PW. Present except IO Satya Prakash present. To come up for remaining evidence on 3/6/99. Sd./- ASJ/Delhi 18/5/99 3/6/99 Pr: Spl. PP for the State. Accused present in j/c with Counsel. PW.3, 4 present, examined and discharged. PW.1, Darshan Kumar, Ganesh Sharma are present but they are not examined on the request of defence Counsel as he has not gone through the statement. Considering the request, both the witnesses are bound down for next date of hearing. Inspector Satya Prakash IO is also and ischarged (sic.). Now to come for P.E. on 20/7/99. Sd/- ASJ/Delhi 3/6/99 20.7.99 Pr: Spl PP for the State Accused in J.C. with Sh. Feroz Khan, Adv., Amicus Curiae (sic.) PW 5, 6 PW7 are examined and discharged. PW Darshan Kumar served but absent despite service. Issue B/W in the sum of ₹ 500/-. PW Satya Prakash, Insp. is reported to be on leave upto 26.7.99. Now to come up for remaining P.E. for 13.8.99. Sd./- ASJ 20.7.99 13.8.99 Present: Spl. PP for the State Accused in j/c PW1, 8 and 9 examined and discharged. No other PW is present except IO of this case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14/2/2001 Pr: Addl. PP for the State. Accused in J/C. PW. 23 24 examined, cross-examined and discharged. No other witness served for today. IO, SI Om Prakash is absent despite service. Issue B/Ws against him in the sum of ₹ 500/-. Now, put up the case for entire RPE on 14/3/2001. Sd./- ASJ/Delhi 14.3.2001 Present: Spl. PP for the State. Accused in J/C with Counsel. PW-25, PW-26, PW-27 examined, cross-examined and discharged. No other witness is present, as none else has been served. Now list the case for P.E. on 11.4.2001. Sd./- ASJ/Delhi 11.4.2001 Present: Sp. PP for the State. Accused in J/C. PW-28 examined, cross-examined and discharged. Witnesses Sunil Kumar, Md. Naria, Bhagirat Prasad and Raj Kumar Verma are reported to be not residing at the given addresses. They all be summoned through IO. No other PW is present. Last opportunity be granted to the prosecution to lead the entire R.P.E. Now to come up for (sic.) 8.5.2001. Sd./- ASJ/Delhi 4/7/2001 Pr. Spl. PP for the State. Accused in J/C. PWs. 29, 30, 31 32 examined, cross-examined and discharged. No other witness is served for today ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the state Accused in JC PW-52 has been examined, cross-examined and discharged. No other PW is present. None has been served. Both the remaining witnesses be summoned through I.O. In the interest of justice, one more opportunity is granted to the prosecution to read entire evidence on 15/07/03. ASJ/Delhi 09/05/03 1102/97 15.07.03 Present: Accused in J.C. Sh. Bakshish Singh, Ld. State Counsel is present PW-53 Ins. Data Ram has been examined, crossexamined and discharged. No other PW except the IO is present. PW Vinod Kumar is absent despite service. Issue B/w in the sum of ₹ 500/-. PW Bhagirathi Prasad and Sunil Kumar are reported to be not residing at the given address. IO of the present case is directed to produce these witnesses on his own responsibility. Last opportunity is granted to the prosecution to lead the entire evidence on 13.8.03. ASJ/Delhi 15.07.03 01/09/03 Present: Spl. P.P. for the State Accused in J.C. Ins. Satya Prakash, ZO is present. PW-54 PW-55 recorded and discharged. No other PW is present or served. IO is discharged for today only. Put up for RPE on 01/10/03. ASJ/Delhi 01/09/03 01/10/03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code read with Section 3/4/5 of The Explosive Substances Act was filed in the court of learned Metropolitan Magistrate against the Appellant and Ors. by the prosecuting agency. After completing the necessary formalities, the case was committed to the Court of Sessions by the learned Metropolitan Magistrate. The learned Sessions Judge, after discharging the other accused persons, had framed charges against the Appellant under Section 302/307 of the Indian Penal Code read with Section 3/4 of The Explosive Substances Act, to which, the Appellant denied his guilt and claimed to be tried. The Appellant was initially assisted by a Learned Counsel employed by the learned Sessions Judge. However, in the mid way, the Learned Counsel disappeared from the scene, that is, before conclusion of the trial. It is apparent from the records that he was not asked whether he is able to employ Counsel or wished to have Counsel appointed. When the parties were ready for the trial, no one appeared for the accused. The Court did not appoint any Counsel to defend the accused. of course, if he had a defence Counsel, I do not see the necessity of the court appointing anybody as a Counsel. If he did not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. 10. The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 wherein it is observed: 24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in- chief, cross-examination and re-examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. and the American jurist, Prof. Vance of Yale, sounded sense for India too when he said: What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is' Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee'. 13. In Mohd. Sukur Ali v. State of Assam (2011) 4 SCC 729, it is observed: 9. In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a Counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi v. Union of India that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be 'reasonable, fair and just'. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just'. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him. This Court pointed out in M.H. Hoskot v. State of Maharashtra: 'Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-America ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience 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. Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. The court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed... The court should consider the individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or indigence, he is entitled to obtain free legal services at the cost of the State. Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicable situation. The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a Counsel during the trial and such designation of Counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial: (a) The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond reasonable doubt. 36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. 'Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect, I find it difficult to persuade myself that it is a fit case which deserves to be remanded to the Trial Court for fresh trial. 23. Facts which are necessary for the decision of this appeal are that the Appellant, Mohd. Hussain @ Julfikar Ali is a national of Pakistan and he was put on trial for offences under Section 302 and 307 of the Indian Penal Code and Section 3 and 4 of the Explosives Substances Act. He was held guilty under Section 302 and 307 of the Indian Penal Code and Section 3 of Explosives Substances Act and sentenced to undergo imprisonment for life each under Section 307 of Indian Penal Code and Section 3 of the Explosives Substances Act. The trial court, however, punished him with death for offence under Section 302 of the Indian Penal Code and submitted the proceeding for confirmation to the High Court. The Appellant preferred appeal before the High Court against his conviction and sentence. Both the appeal and the reference were heard together and by an impugned common judgment the High Court has dismissed the appeal and confirmed the death sentence. 24. This is how the Appellant is before us with the leave of the Court. He challenges his conviction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 302, 307 and 120-B of the Indian Penal Code and under Section 3 and 4 of the Explosives Substances Act. The charge-sheet along with the police papers were laid before the Metropolitan Magistrate for commitment. The Appellant was in jail and produced before the Committal Magistrate on 6th July, 1998. He disclosed to the learned Magistrate that he was 'not in a position to engage a lawyer and be provided with a lawyer through legal aid'. It seems that the assistance of one Mr. V.K. Jain, Advocate was made available to the Appellant who appeared before the Committing Court on 20th July, 1998 and prayed for time for scrutiny of documents. Ultimately, the Appellant was committed to the Court of Session on 6th August, 1998. The Appellant was produced before the Trial Court from time to time and on 18th February, 1999 was represented by Mr. Firoz Khan and Mr. Riyaj Ahmed, Advocates. On that date, the argument on framing of charge was heard and the Trial Court framed charges under Section 302 and 307 of the Indian Penal Code and under Section 3 and 4 of the Explosives Substances Act against the Appellant to which he pleaded not guilty and the prosecution was directed to produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2004 for defence argument. It is relevant here to state that during all this period the Appellant was in custody. It is only when the argument on behalf of the Appellant was to be heard, Counsel representing him later i.e. Ms. Bhatia realized that the witnesses have been examined and discharged without cross- examination in the absence of the defence Counsel and accordingly, an application was filed for recall of P.W.1- Darshan Kumar for cross-examination. The said prayer was allowed and P.W. 1- Darshan Kumar was cross-examined and discharged on 23rd October, 2004. It is worth mentioning here that the Trial Court has recorded on said date that the accused has not prayed for cross-examination of any other witness and accordingly, it heard the argument and posted the case for judgment on 26th October, 2004. The Appellant was held guilty and sentenced as above. 29. While holding the Appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been cross-examined but also relied upon the evidence of witnesses who were not cross-examined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any such case if he does not have sufficient means to pay for it;.... Article 14(3)(d) entitles the person facing the criminal charge either to defend himself in person or through the assistance of a Counsel of his choice and if he does not have legal assistance, to be informed of his right and provide him the legal assistance without payment in case he does not have sufficient means to pay for it. It is accepted in the civilized world without exception that the poor and ignorant man is equal to a strong and mighty opponent before the law. But it is of no value for a poor and ignorant man if there is none to inform him what the law is. In the absence of such information that courts are open to him on the same terms as to all other persons the guarantee of equality is illusory. The aforesaid International Covenant on Civil and Political Rights guarantees to the indigent citizens of the member countries the right to be defended and right to have legal assistance without payment. 32. Not only this, the Universal Declaration on Human Rights ensures due process and Article 10 thereof provides that everyone is entitled in full equality to a fair hearing by an independent and impa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for: (a) The mode of selecting pleaders for defence under Sub-section (2); (b) The facilities to be allowed to such pleaders by the courts; (c) The fee payable to such pleaders by the Government, and generally, for carrying out the purposes of Sub-section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of Sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session. From a plain reading of the aforesaid provision it is evident that in a trial before the Court of Sessions if the accused is not represented by a pleader and has not sufficient means, the court shall assign a pleader for his defence at the expense of the State. The entitlement to free legal aid is not dependent on the accused making an application to that effect, in fact, the court is obliged to inform the accused of his right to obtain free legal aid and provide him with the same. 35. In my opinion, the right of a person charged with crime to have the services of a lawyer is fundamental and essential t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator and a recording machine but a participant in the trial evincing intelligence and active interest so as to elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community itself. Fundamental principles based on reason and reflection in no uncertain term recognize that the Appellant haled into court in our adversary system of criminal justice and ultimately convicted and sentenced without a fair trial. There are high authorities of this Court which take this view and I do not deem it expedient to multiply and burden this judgment with those authorities as the same have been referred in the judgment of my learned Brother Dattu, J. except to refer to a judgment of this Court in the case of Hussainara Khatoon and Ors. v. Home Secy., State of Bihar (1980) 1 SCC 98, in which it has been held as follows: 6... Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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