9911796707
TMI Blog2012 (8) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... and also under Section 3 of The Explosive Substances Act, 1908. The case of the prosecution, as noticed by the High Court, which appears to be accurate statement of facts, proceeds on these lines : " 2. On 30-12-1997 at about 6.20 p.m. one blueline bus No.DL-IP-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at the Ram Pura Bus Stand on Rohtak Road for passengers to get down. The moment that bus stopped there an explosion took place inside the bus because of which its floor got ripped apart. Four passengers of that bus, namely, Ms. Tapoti, Taj Mohd. Narain Jha and Rajiv Verma died and twenty four passengers including the conductor of that bus were injured due to that explosion. Two policemen (PWs 41 & 52) were on checking duty at that but stop at the time of blast. On their informing the local police station police team reached the spot. Crime team and bomb disposal squad were also called and the damaged bus was inspected and from the spot debris etc. were lifted and sealed. 3. On the basis of the statement of Head Constable Suresh (PW-41), who was one of the two policemen on duty at the bus stop of Rampura, a case under Section 307 IPC and Section 3, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in his hand at that time but could not succeed and was apprehended. His pistol was seized. It appears that during the interrogation by the police the appellant and three more persons, namely, Abdul Rehman, Mohd. Ezaz Ahmed and Mohd. Maqsood confessed about their involvement in the present incident of bomb blast in the bus on 30.12.1997. That information was then passed over to Punjabi Bagh police station on 18.03.1998 by the Crime Branch and accordingly all these four persons were formally arrested for the present case also on 21.3.1998 for which date the investigating officer of the present case had sought their production in court by getting issued production warrants from the court seized of the above referred case of FIR No.49/1998. The investigating officer moved an application before the concerned court on the same day for holding of Test Identification Parade (TIP) in respect of the appellant in view of the suspicion expressed by PW-1 Darshan Kumar, the conductor of the bus involved in the blast regarding one passenger who had boarded his bus from Paharganj bus stop along with a rexine bag for going to Nangloi but instead of going upto Nangloi he had got down from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice that the appellant had pleaded, 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess was deferred at the request of the accused, who was ultimately discharged with nil cross-examination. This shows that accused himself was not interested in cross-examining the witnesses. As such, this submission is also without merit." 47. We have ourselves also perused the trial court record and we are convinced that it is not a case where it can be said that the accused did not have a fair trial or that he had been denied legal aid. We are in full agreement with the above quoted views of the learned Additional Sessions Judge on this objection of the accused and we refuse to accept the plea of the appellant that this case should be remanded back for a re-trial. " 4) I have heard learned counsel Mr. Mobin Akhtar for the appellant and Mr. J.S. Atri, learned senior counsel for the State. 5) In this Court, the judgments are assailed, apart from the merits, that the appellant is denied due process of law and the conduct of the trial is contrary to procedure prescribed under the provisions of Cr. P.C. and, in particular, that he was not given a fair and impartial trial and was denied the right of a counsel. Since the aforesaid issue is of vital importance, I have thought it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash 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 Curae (sic.) PW 5, 6 & PW7 are examined and discharged. PW Darshan Kumar served but absent despite service. Issue B/W in the sum of Rs. 500/-. PW Satya Prakash, Insp. is reported to be on leave upto 26.7.99. Now to come up for remaining P.E. for 13.8.99. Sd./- ASJ 20.7.99 13.8.99 Present : Spl. PP for the State Accused in j/c PW1, 8 and 9 examined and discharged. No other PW is present except IO of this case. PW Santosh Kr. Jha has shifted to Vill. Ghagjai, Distt. Madhumani Panna, P.S. Mani Patti, Post Office Ghagjari, Bihar. He be summoned at his new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in the sum of Rs. 500/-. Now, put up the case for entire RPE on 14/3/2001. Sd./- ASJ/Delhi 14.3.2001 Present: Spl. PP for the State. Accused in J/C with counsel. PW-25, PW-26, PW-27 examined, cross-examined and discharged. No other witness is present, as none else has been served. Now list the case for P.E. on 11.4.2001. Sd./- ASJ/Delhi 11.4.2001 Present: Sp. PP for the State. Accused in J/C. PW-28 examined, cross-examined and discharged. Witnesses Sunil Kumar, Md. Naria, Bhagirat Prasad and Raj Kumar Verma are reported to be not residing at the given addresses. They all be summoned through IO. No other PW is present. Last opportunity be granted to the prosecution to lead the entire R.P.E. Now to come up for (sic.) 8.5.2001. Sd./- ASJ/Delhi 4/7/2001 Pr. Spl. PP for the State. Accused in J/C. PWs. 29, 30, 31 & 32 examined, cross-examined and discharged. No other witness is served for today. Now put up the case for entire RPE on 13/8/01. Sd./- ASJ/Delhi 11.2.2002 Present: Addl. PP for the State. Accused is present in J/C. PW-33 examined, cross-examined and discharged. No other PW is present except the IO. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in J.C. Sh. Bakshish Singh, Ld. State Counsel is present PW-53 Ins. Data Ram has been examined, cross- examined and discharged. No other PW except the IO is present. PW Vinod Kumar is absent despite service. Issue B/w in the sum of Rs. 500/-. PW Bhagirathi Prasad and Sunil Kumar are reported to be not residing at the given address. IO of the present case is directed to produce these witnesses on his own responsibility. Last opportunity is granted to the prosecution to lead the entire evidence on 13.8.03. ASJ/Delh 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 Present : Spl. P.P. for the State. Accused in J.C. It is 2.35 PM. Heard. PW-56 recorded and discharged. Ins. Tandon and one more witness Vinod are present. However, they were discharged for today as they have some urgent work. Their prayer is allowed. Put up for RPE on 01/11/03. The accused is directed to bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, that too at the fag end of the trial, another learned counsel was appointed to assist the appellant. 9). The record further discloses that immediately, on completion of the investigation, a charge sheet punishable under Section 302/307/120-B of the IPC read with Section 3/4/5 of The Explosive Substances Act was filed in the court of learned Metropolitan Magistrate against the appellant and others by the prosecuting agency. After completing the necessary formalities, the case was committed to the Court of Sessions by the learned Metropolitan Magistrate. The learned Sessions Judge, after discharging the other accused persons, had framed charges against the appellant under Section 302/307 of the IPC read with Section 3/4 of The Explosive Substances Act, to which, the appellant denied his guilt and claimed to be tried. The appellant 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his testimony-in-chief was untrue and unbiased. The purpose of cross- examination of a witness has been succinctly explained by the Constitution Bench of this Court in Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 : "278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are : (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. " 10) The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said : "What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?" " 13) In Mohd. Sukur Ali Vs. State of Assam (2011) 4 SCC 729, it is observed : "9. In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation-wide legal service programme to provide free legal services to them. It is now well settled, as a result of the decision of this Court in Maneka Gandhi v. Union of India that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be "reasonable, fair and just". Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as "reasonable, fair and just". It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him. This Court pointed out in M.H.Hoskot v. State of Maharashtra : "Judicial justice, with proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Richard Argersinger v. Raymond Hamlin "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, 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 libert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding throughout the territory of India. Mr K.G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficult to do so owing to financial constraints. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise and it would fail of its purpose. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial: (a) The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law; (b) Right to fair trial; (c) Presumption of innocence (not guilty); (d) Prosecution must prove its case beyond reasonable doubt. 36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. "Prejudice" is incapable of being interpreted in its generic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1091 OF 2006 Mohd. Hussain @ Julfikar Ali ... Appellant Versus The State (Govt. of NCT) Delhi ... Respondent J U D G M E N T CHANDRAMAULI KR. PRASAD, J. 1. I have gone through the judgment prepared by my noble and learned Brother, H.L.Dattu, J. and I concur that the conviction and sentence of the appellant is fit to be set aside as he was not given the assistance of a lawyer to defend himself during trial but, with profound respect, I find it difficult to persuade myself that it is a fit case which deserves to be remanded to the Trial Court for fresh trial. 2. Facts which are necessary for the decision of this appeal are that the appellant, Mohd. Hussain @ Julfikar Ali is a national of Pakistan and he was put on trial for offences under Section 302 and 307 of the Indian Penal Code and Section 3 and 4 of the Explosives Substances Act. He was held guilty under Section 302 and 307 of the Indian Penal Code and Section 3 of Explosives Substances Act and sentenced to undergo imprisonment for life each under Section 307 of Indian Penal Code and Section 3 of the Explosives Substances Act. The trial court, however, punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `JEHAD'. This information received in bits and pieces pointed the needle of suspicion on the appellant in the crime in question and he was apprehended with pistol from his house at Lajpat Nagar. In order to ascertain his role, the Investigating Agency decided to hold test identification parade for which the appellant did not object in the beginning but later on refused to join in the test identification parade. 6. After usual investigation, the Police submitted charge-sheet under Section 302, 307 and 120-B of the Indian Penal Code and under Section 3 and 4 of the Explosives Substances Act. The charge-sheet along with the police papers were laid before the Metropolitan Magistrate for commitment. The appellant was in jail and produced before the Committal Magistrate on 6th July, 1998. He disclosed to the learned Magistrate that he was "not in a position to engage a lawyer and be provided with a lawyer through legal aid". It seems that the assistance of one Mr. V.K.Jain, Advocate was made available to the appellant who appeared before the Committing Court on 20th July, 1998 and prayed for time for scrutiny of documents. Ultimately, the appellant was committed to the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr.Narendra Bhambri and P.W.59- ASI Mahender Singh were recorded. Thereafter, the statements of the witnesses from P.Ws.60 to 65 were recorded in the presence of appellant's counsel, Ms. Sadhana Bhatia. Ultimately the statement of the appellant was recorded on 6th October, 2004 and argument on behalf of prosecution was heard in part. Next hearing took place on 8th October, 2004 when the argument on behalf of the prosecution was concluded and the case was adjourned to 12th October, 2004 for defence argument. It is relevant here to state that during all this period the appellant was in custody. It is only when the argument on behalf of the appellant was to be heard, counsel representing him later i.e. Ms. Bhatia realized that the witnesses have been examined and discharged without cross- examination in the absence of the defence counsel and accordingly, an application was filed for recall of P.W.1- Darshan Kumar for cross-examination. The said prayer was allowed and P.W.1- Darshan Kumar was cross-examined and discharged on 23rd October, 2004. It is worth mentioning here that the Trial Court has recorded on said date that the accused has not prayed for cross-examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;......." Article 14 (3) (d) entitles the person facing the criminal charge either to defend himself in person or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... triable by Court of Sessions at State expense and the same reads as follows: "304. Legal aid to accused at State expense in certain cases. (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State. (2) The High Court may, with the previous approval of the State Government make rule providing for- (a) The mode of selecting pleaders for defence under sub-section (2); (b) The facilities to be allowed to such pleaders by the courts; (c) The fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session." From a plain reading of the aforesaid provision it is evident that in a trial before the Court of Sessions if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge number of witnesses have been examined in the absence of the counsel. Those witnesses have not been cross-examined and many of them have been relied upon for holding the appellant guilty. The learned Judge in seisin of the trial forgot that he has an overriding duty to maintain public confidence in the administration of justice, often referred to a duty to vindicate and uphold the majesty of law. He failed to realize that for an effective instrument in dispensing justice he must cease to be a spectator and a recording machine but a participant in the trial evincing intelligence and active interest so as to elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community itself. Fundamental principles based on reason and reflection in no uncertain term recognize that the appellant haled into court in our adversary system of criminal justice and ultimately convicted and sentenced without a fair trial. There are high authorities of this Court which take this view and I do not deem it expedient to multiply and burden this judgment with those authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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