TMI Blog2019 (12) TMI 1622X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat learned Advocate, however, did not appear on 19.02.2013 when the case was taken up, and as such another learned Advocate came to be appointed through Legal Aid Services to represent the appellant. Such appointment was done on 19.02.2013 and on the same day the charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012. (E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution witnesses were examined. (F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court were :- (i) 27.02.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution filed application together with letter of District Prosecution Officer and with copy of warrant etc documents. Copies are supplied. The defense has no objection in taking above documents on record, hence considering the reasons of as explained for delay the application is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution has not received DNA report, same will be placed on record on receipt. Hearing of rest of final arguments started which remained incomplete. Put up on 02.03.2013 for placing on record DNA report and rest of final arguments. Sd/- Sessions Judge Khandwa (iv) 02.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The accused is being tried under Section 9 of Protection of Children from Sexual Offences Act, 2012 and according to Provisions of Section 5 (f) of above Act, the situation of previous conviction for the sexual offence under Section 377 IPC is also clear and above fact has found mention in charge No.8 framed in earlier with intention that despite being previously convicted for sexual offence under Section 377 IPC but in above charge date time and place etc is not mentioned regarding conviction according to provisions of Section 211 (7) Cr.P.C. Hence, as is provided under Section 211 (7) Cr.P.C. the Court before passing order of conviction may add statement of fact, date and place of conviction, hence in this regard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses were additionally examined with consent of defense and they were discharged after reexamination. Prosecution stated not to adduce any other evidence as such closed its evidence. The packet of article so filed is in sealed condition, which was opened in presence of both the parties. After evidence let same be deposited in malkhana by duly sealing with memo of property. In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on entering in defense, the accused stated not to adduce any evidence in defense nor any written statement was filed under Section 232(2) Cr.P.C. and as such defense closed its evidence. Put up again for final arguments. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa Again State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, Advocate present on his behalf. Heard final arguments. Put up on 04.03.2013 for judgment. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, khandwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 363 IPC Seven years 1000 One month 3 366 IPC Seven years 1000 One month 4 377 IPC Seven years 1000 One month 5 376(2) IPC Life imprisonment 1000 One month Due to being similar act, no separate sentence is being awarded for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012. By preparing warrant of conviction in this regard let accused be sent to jail. The accused has been sentenced to death also and in above regard according to Section 366 Cr.P.C. it has also been directed that death penalty be not executed so long as it is not confirmed by the Hon ble High Court, hence in that regard according to provision of Section 366(2) Cr.P.C. warrant of handing over accused sentenced to death to taken in custody of jail, is attached separately with warrant. Copy of judgment is given to accused and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rous imprisonment. (Six) Considering the provisions of Section 42 of Act, where for similar act the accused has been convicted under the sections of Act and IPC, then he should be sentenced for the offences having larger punishment and in this regard principle of Section 71 IPC is also perusable and in Section 376(2)(f) IPC and in Section 6 of the Act, there is provision of punishment for imprisonment for life and minimum sentence of 10 yrs rigorous imprisonment and for similar act, order of sentence is being passed for the offence under Section 376(2) (f) and Secton 377 IPC also, hence separate order of sentence for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 is not being passed. All the sentences of imprisonment shall run concurrently. 67. The accused is in detention since 04.02.2013 hence, let certificate of the period undergone by him in detention during trial be attached with warrant as per provisions section 428 Cr.P.C. which may be used for setting off under Section 428 Cr.P.C. or as per requirement for computing sentence as provided in Section 433 Cr.P.C. 68. On payment of fine, entire amount of fine means Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the report, blood found on the underwear of accused was of the victim. The cremation of the body of victim was done on 1.2.2013 whereas the accused was arrested on 4.2.2013. There was, therefore, no possibility of the blood of victim having been put on the seized underwear of the accused. 11. The evidence on record clearly establishes that the accused was close to the family of Ramlal and the victim trusted him. She, therefore, on his asking immediately rushed to buy bidi for him from a kirana shop. The accused then followed the victim with a premeditated mind to commit the crime. The accused, taking advantage of the trust of victim, after kidnapping and subjecting her to brutal rape and carnal sex most gruesomely throttled her to death. The numerous injuries on the body of victim testify this fact. He even dumped the body of victim in the field. Earlier also, the accused was convicted vide judgment dated 21.10.2010, Ex.49, for committing carnal sex with a small boy. Thus, an innocent hapless girl of nine years was subjected to a barbaric treatment showing extreme depravity and arouses a sense of revulsion in the mind of a common man. We feel that the crime com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was any infraction or error on the part of the Trial Court in adopting the approach in the present matter. Other issues, namely applicability of Section 309 and advisability of having video-conferencing in the matter will be dealt with at a later stage and the consideration of these issues, for the time being, is deferred. 5. The consideration at present is thus confined to the issue as stated above. 6. In support of his submissions, Mr. Sidharth Luthra, learned Senior Advocate, relied upon certain decisions of this court and, particularly, in Bashira vs. State of U.P. (1969) 1 SCR 32 : AIR 1968 SC 1313 and Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi) (2012) 9 SCC 408 . Mr. Varun Chopra, Deputy Advocate General appearing for the State, however, submitted that the evidence on record, without any doubt, pointed towards the guilt of the accused and as such the order of conviction recorded by the Courts below was correct and did not call for any interference. 7. In Bashira (1969) 1 SCR 32 : AIR 1968 SC 1313 , the Trial Court had fixed 28th February, 1967 as the date for starting the actual trial and, on that very day, before beginning the trial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to him. It is true that the record also does not contain any note that the counsel asked for more time to prepare the defence, but that, in our opinion, is immaterial. The Rule casts a duty on the court itself to grant sufficient time to the counsel for this purpose and the record should show that the Rule was complied with by granting him time which the court considered sufficient in the particular circumstances of the case. In this case, the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that, in fact, if any time at all was granted, it was nominal. In these circumstances, it must be held that there was no compliance with the requirements of this Rule. 9. In this connection, we may refer to the decisions of two of the High Courts where a similar situation arose. In Re: Alla Nageswara Rao, Petitioner AIR 1957 AP 505 reference was made to Rule 228 of the Madras Criminal Rules of Practice which provided for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could be passed. It was held by Subba Rao, Chief Justice as he then was, speaking for the Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the procedure established by law. The operative part of the decision was :- As a consequence, we set aside the conviction and sentence of the appellant. Since we are holding that the conviction is void because of an error in the procedure adopted at the trial, we direct that the appellant shall be tried afresh for this charge after complying with the requirements of law, so that the case is remanded to the Court of Session for this purpose. 8. In Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 it was observed as under: 7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows: 39-A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added) This article also emphasises that free legal service is an unalienable element of reasonable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk Legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the authority concerned is satisfied that such person has a prima facie case to prosecute or defend. 11. It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending. In fact the Supreme Court Legal Services Committee provides legal assistance to eligible persons in this Court. This makes it abundantly clear that legal services shall be provided to an eligible person at all stages of the proceedings, trial as well as appellate. It is also impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person and a person accused of an offence. In that case, it was reiterated that an accused need not ask for legal assistance-the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that (SCC p. 407, para 5) it was now settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution] . 16. Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held that there was a violation of the fundamental right of the accused under Article 21 of the Constitution. The trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside. 17. We propose to briefly digress and advert to certain observations made, both in Khatri (2)8 and Suk Das9 In both cases, this Court carved out some exceptions in respect of grant of fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that while it is incumbent on the court to see that no guilty person escapes but the court also has to see that justice is not delayed and the accused persons are not indefinitely harassed. The Court further stated that the scale must be held even between the prosecution and the accused. 21. In Gopi Chand v. Delhi Admn AIR 1959 SC 609 : 1959 Crl. L. J. 782, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Criminal Procedure Code, 1898 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced; the trial of the three cases against the appellant was vitiated and the orders of conviction and sentence were rendered invalid. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge against the appellants was that they had obstructed the officers of the Bank, without reasonable cause, from entering the premises of a branch of the Bank and also obstructed the transaction of normal banking business. Against their acquittal, an appeal was preferred before the High Court which allowed it after a period of six years and remanded the case for retrial. It was from the order of remand for retrial that the matter reached this Court. This Court while setting aside the order of remand in para 3 of the Report held as under: (SCC pp. 655-56) 3. After going through the judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of the view that having regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. 25. In Kartar Singh v. State of Punjab (1994) 3 SCC 569, it was stated by this Court that no doubt liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution. In that case, the Court was dealing with a case under the TADA Act. It was thus held that the impugned judgment was required to be reversed and the matter was to be remanded for fresh trial. C.K. Prasad, J. concurred with H.L. Dattu, J. and accepted that the Judgments of conviction and sentence be set aside as the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent 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 or taking up of additional evidence under Section 391 of the Code [in a given case] is the proper procedure will depend on the facts and circumstances of each case for which no straitjacket formula of universal and invariable application can be formulated. 40. Speedy trial and fair trial to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused s right of fair trial. Unlike the accused s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused s right to speedy trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 SCALE 730 = (2018) 18 SCC 788) , this Court observed:- From the above narration of facts, it is evident that Accused Nos.3, 5 and 6 had no opportunity to be heard by the Bench, before the appeals filed by the State of Maharashtra for enhancement of sentence were decided. They have been deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the State for enhancement. This Court, therefore, recalled the Judgment and order dated 30.04.2009 and the Criminal Appeals were restored to the file of this Court to be considered on merits. Subsequently, a Bench of three Judges by its decision dated 05.03.2019 (2019 SCC Online SC 317 - Ankush Maruti Shinde and others vs. State of Maharashtra) acquitted the concerned accused of the charges levelled against them. This Court also dismissed the appeals preferred by the State for enhancement of sentence qua accused Nos.3, 5 and 6. 12. In Imtiyaz Ramzan Khan vs. State of Maharashtra (2018) 9 SCC 160 it was observed by this Court:- 4. We now come to the common feature between these two matters. Mr. Shikhil Suri, learned advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that Right to Free Legal Services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case19 (as quoted in the decision in Mohd. Hussain3) emphasizes that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty. c) Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira2 put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defense was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law. d) The portion quoted in Bashira2 from the judgment of the Madras High Court authored by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record shows that the DNA report was received almost at the fag end of the matter, and after such receipt, though technically an opportunity was given to the accused, the issue on the point was concluded the very same day. The concluding paragraphs of the judgment of the Trial Court show that the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps. 17. In V.K. Sasikala vs. State Represented by Superintendent of Police ((2012) 9 SCC 771) a caution was expressed by this Court as under:- 23.4 While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the wellentrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. 18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not be taken to be a reflection on the merits of the matter, which shall be considered and gone into, uninfluenced by any observations made by us. 22. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:- i) In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. ii) In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae. iii) Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days time may normally be considered to be appropriate and adequate. iv) Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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