Mohd. Hussain @
Julfikar Ali Vs. The State (Govt. of NCT) Delhi
[Criminal Appeal No.
1091 of 2006]
J U D G M E N T
H. L. Dattu, J.
convict, who is facing the threat of death gallows, is before us in this
appeal. He is an illiterate foreign national and unable to engage a counsel to
defend himself. He is tried, convicted and sentenced to death by the Additional
Sessions Judge, Delhi in Sessions Case No.122 of 1998 dated 03.11.2004 without assignment
of counsel for his defence. Such a result is confirmed by the High Court on a
reference made by the Trial Court for confirmation of death sentence and has
dismissed the appeal filed by the appellant vide its order dated 04.08.2006.
convict, (hereinafter referred to as "appellant") is charged, convicted
and sentenced under Sections 302/307 of Indian Penal Code (in short, "IPC")
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 & 2) 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
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 and
5 of the Explosive Substances Act was registered at Punjabi Bagh police station.
Investigation commenced immediately. With the death of some of the injured persons
on the day of the incident itself Section 302 IPC was also added. Hunt for the culprits
responsible for that macabre incident also 2started. However, for over two
months nobody could be nabbed.
4. It appears that as
a result of different incidents of bomb blasts in Delhi including the present one
the intelligence agencies became more active and started gathering information
about the incidents of bomb blasts in the city. It came to light that some
persons belonging to terrorist organizations were actively operating in the city
of Delhi for causing terror by killing innocent people and causing damage to public
property by exploding bombs. On the basis of secret information the police raided
some houses in different parts of Delhi on 27.02.1998 and from those houses hand
grenades and material used for making bombs was recovered in large quantity.
The chemicals recovered
were sent to CFSL, which confirmed that the same were potassium chlorate and
sulphuric acid and were opined to be constituents of low explosives. Some persons
were arrested also and during interrogation they had disclosed to the police
that they were members of a terrorist organization and their aim was to create
terror and panic in different parts of the country by exploding bombs to take
revenge for the killings of innocent muslims (sic.) in India and further that
they had come to India for Jehad.
On 27.02.1998 itself
the police had registered a case vide FIR No.49 of 1998 under Sections
121/121-A IPC and Sections 3, 4 & 5 of the Explosive Substances Act as well
under Section 25 of the Arms Act at Main Delhi Railway Station. On the basis of
information provided by the apprehended terrorists the police made more arrests
including that of one Mohd. Hussain (who now is the appellant before us in Crl.
A. No.41 of 2005 and reference to him will now onwards be made as `the
The appellant was apprehended
when his house in Lajpat Nagar was raided pursuant to the information given by
other apprehended terrorists. As per the prosecution case the appellant himself
had opened the door on being knocked by the police and on seeing the police
party he had tried to fire at the policemen from the pistol which he was having
in his hand at that time but could not succeed and was apprehended. His pistol was
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 near the seat of the conductor.
The conductor had
given the description of that passenger. As per the prosecution case the
explosion had taken place below that seat which that passenger had occupied and
underneath which he had kept his rexine bag. Although on 21-03-98 the appellant
did not object to holding of identification parade but he refused to joint test
identification parade which was fixed for 23-03-98 stating that police had taken
5. During the investigation
of the present case the debris collected from the place of bomb blast and some damaged
pieces of the bus etc. were sent to Central Forensic Laboratory (CFSL) and after
examination it was revealed that in the seized material contained explosive mixture
of chlorate, Nitrate, Sulphate and sugar were detected. Mixture of these
chemicals, as per CFSL, report Ex. PW-34/A, is used for making explosives/bombs
and the mixture could have been initiated by the action of sulphuric acid and
the mixture was "explosive substance".
6. On completion of
investigation of the present case the police filed a charge-sheet in Court against
four accused persons for the commission of offences under Sections 302/307/120-B
IPC and Sections 3 and 4 of the Explosive Substances Act. In due course the four
persons were committed to Sessions Court. The learned Additional Sessions Judge
vide order dated 18.2.1999 discharged three accused persons namely, Abdul Rehman,
Mohd. Maqsood and Ezaz Ahmed while against fourth accused Mohd. Hussain @
Julfikar (the appellant herein) charges under Sections 302/307 IPC and Section and
in the alternative u/s 4(b) of the Explosive Substances Act were framed. The
appellant had pleaded not guilty to the charges framed against him and claimed to
3) The prosecution had
examined as many as 65 witnesses and on conclusion of prosecution evidence, statement
of the appellant was recorded under Section 313 of the Code of Criminal Procedure
(in short, "Cr.P.C"), who had denied his guilt and pleaded false implication.
The Trial Court, upon appreciation of evidence of the prosecution witnesses, held
the appellant guilty of the charges and accordingly, imposed death penalty. The
conviction and sentence is affirmed by the High Court.
At this stage itself,
it is relevant to notice that the appellant had pleaded, both before the Trial Court
and the 5High 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 examined in the absence of counsel for the
accused. It was contended that the right of the accused ensured to him under
Articles 21 and 22 of the Constitution of India for a fair trial has been,
thus, violated. In support of this argument which, in fact, appears to us to be
the sheet anchor for the appellant,
Mr. Siddharth Lutha cited
some judgments also of the Hon'ble Supreme Court which are reproduced as AIR 1997
SC 1023, 1994 Supp. (3) SCC 321, AIR 1986 SC 991 and 1983 (III) SCC 307. One
judgment of Gauhati High Court reported as 1987 (1) Crimes 133, "Arjun Karmakar
Vs. State of Assam" was also relied upon by Mr. Luthra.
46. There can be no
dispute about the legal proposition put forward by the learned counsel for the
appellant that it is the duty of the Court to see and ensure that an accused in
a criminal trial is represented with diligence by a defence counsel and in case
an accused during the trial remains unrepresented because of poverty etc., it becomes
the duty of the Court to provide him legal aid at State expense.
We find from the judgment
of the trial Court that this point was raised on behalf of the accused during
the trial also by the amicus curiae provided to the accused when his private
counsel stopped appearing for him. The learned trial Court dealt with this
arguments in para no.101 of the judgment which is as under:-"It is next submitted
that material witnesses have not been cross examined by the accused and as such,
their testimony cannot be read against him. I may add that from the very
beginning of the trial, the accused has been represented by a counsel Sh. Riaz Mohd.
and he had cross-examined some of the witnesses.
Later on, when Sh. Riaz
Mohd. did not appear in the Court on some dates, Mrs. Sadhna Bhatia was appointed
as Amicus-Curiae to defend the accused at State expenses. If the accused did
not choose to cross examine some witnesses, he cannot be forced to do so. Moreover,
later one accused prayed for cross-examination of PW-1 Sh. Darshan Kumar, which
was allowed though it was filed at a belated stage after a long period of time.
The accused did not desire
any other witness to be cross examined. Not only this, statement of PW-1 Sh.
Darshan Kumar was recorded on 18-05-1999 and he was also present on 3-6-1999 and
13-08-1999, but on all three dates, the cross-examination of this witness 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
"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, which 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 fit to answer that
issue before I discuss the merits of the appeal. Therefore, firstly, I will
consider the issue; whether the appellant was given a fair and impartial trial
and, whether he was denied the right of a counsel. To answer this issue, it may
not be necessary to discuss the facts of the case or the circumstances surrounding
the prosecution case except so far they reflect upon the aforesaid issue.
6) To answer the aforesaid
issue, it is necessary to look at the proceedings of the Trial Court which are
All accused in j/c.
All accused stated that
they are not in position to engage any lawyer and be provided with a lawyer from
Legal assistance be provided
to all accused from legal aid.
All accused requested
further time for making scrutiny of documents. Allowed. Put up on 20.7.98 for
All accused in judicial
custody with Sh. V.K. Jain,Adv. Sh. Jain requested time for making scrutiny of documents.
Sh. Jain sates that he is applying for further time (illegible)______.
Put up on 29/7/98 for
All accused in j/c
with Sh. V.K. Jain,Adv. from Legal Aid.Shri Jain requests for further
time.Allowed. Put up on 6/8/98 for scrutiny.
All accused in j/c
with Sh. Vijay Kr. Jain,
Adv.Sh. Jain stated that
all accused have been supplied with complete copies of documents filed along with
the chargesheet. Hence provision of Sec. 207 Cr.P.C. are complied with.
Present case also
pertains to offence punishable u/s. 302/307 IPC & 3, 4, 5 Explosive Substances
Act which are exclusively triable by Court of Sessions. Present case is liable to
be commit to court of sessions. I accordingly commit the present case to court
Accused are directed to
appear before court of sessions on 20.8.98.Ahlmad is directed to send the file complete
in all respects to court of sessions.Notice to PP be also issued. Sd./- MM/Delhi
6.8.98 1018/5/99Pr: Spl PP for State.Accused in J/C. PW.1 partly examined and his
cross-examination deferred at the request of accused as his counsel Firoz Khan
has not put his appearance in the court.
PW.1 is bound down
for the next date of hearing.PW.2 examined and discharged.No other PW. Present except
IO Satya Prakash present. come up for remaining evidence on 3/6/99.
Pr: Spl. PP for the
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.
Pr: Spl PP for the
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.
Present : Spl. PP for
Accused in j/cPW1, 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 address.PW Ashok Kumar could
not be served. He be served though IO. SI Ashok Kumar is served but he sent a request
that he had gone to High Court.To come up for RPE on 1.9.99.
Pr: Spl. PP for the
Accused in J/C.PW. 10,
11, 12 & 13 present, examined and discharged. PW. Santosh Kumar Jha is
served but absent despite service. PW. Ashok Kumar served but sent request that
he had to attend a duty and may be exempted today.IO present is discharged for today.
Witnesses be summoned again.List the matter for evidence on 2/11/99.
Present: As before.PW
14 examined and discharged.
No other PW is present
except IO Satya Prakash. Mother of Sunil Kr. Sharma is present and submits that
he is not in a position to move from bed. Considering her request and there are
other number of witnesses to prove the explosion in the bus. Let his name be
dropped from the list of witness and need not be summoned.List the matter for
RPE on 3.12.99.
Pr: Addl. PP for the
Accused in J/C.PWs.15
to 17 examined and discharged.PWs. SI Om Prakash and SI Satya Prakash, IOs have
sent requests. PWs. Dr. K. Goyal and Dr. Ashok Jaiswal are unserved. Re-summon.Now,
List the case for RPE on 25/08/2000.
Pr: Addl. PP for the
State.Accused in J/C.PWs.18 & 19 examined, cross-examined and discharged. No
other witness served for today.Now, list the matter for P.E. on 6/11/2000.
Present: Addl. PP for
Accused in j/c.PW 20
examined and discharged.
No other PW is
present. PW SI Om Prakash is served but absent despite service. Issue B/W in
the sum of Rs.500/-. 14Entire remaining witnesses be summoned through IO on 10.1.2001.
Present: Spl PP for
Accused in J/C.PW-21
and 22 examined, cross-examined and discharged. No other PW is present except
IO.PW Rajinder Singh Bist is absent despite service. Issue B/W against him in
the sum of Rs.500/-.Now list the case for RPE on 14.2.2011.
Pr: Addl. PP for the
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 Rs.500/-.Now, put up the case for entire RPE on 14/3/2001.
Present: Spl. PP for
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.
Present: Sp. PP for
Accused in J/C.PW-28
examined, cross-examined and discharged.
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
Now to come up for
Pr. Spl. PP for the
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.
Present: Addl. PP for
Accused is present in
J/C.PW-33 examined, cross-examined and discharged.
No other PW is
present except the IO.
Now to come up for
RPE on 26.3.2002.
Pr: Addl. PP for the
Accused in J/C. 16PW.34,
35, 36 & 37 examined, cross-examined and discharged.
No other PW. is
Now to come up for
RPE on 7/5/02.
Present: Spl. PP for
Accused in J/C.PW-42 &
PW-43 examined, cross-examined and discharged.
No other PW is
Now to come up for
entire R.P.E. on 18.10.02.
Pr. Sh. Jitender
Kakkar, Addl. PP for the State.
Accused in J/C.PW.44 &
PW.45 examined, cross-examined and discharged. No other PW. is present.
Now list the matter
for entire RPE on 13/12/02. Sd./- ASJ/Delhi13.12.02Present: Accused in judicial
custody. Ld. ______ is on leave today.Illigible__17/1/2003 for RPE.
Pr: Sh. Bakshish
Spl. PP for State.
Accused in J/C with
Two PWs. 46 & 47
have been examined, cross-examined and discharged.
No other witness is
Ld. Spl. PP seeks
another opportunity for adducing evidence. In the interest of justice one more
opportunity is granted to the prosecution to lead the entire evidence on
Pr. : Addl. PP Sh.
Jitender Kakkar, for the State.
Accused in J/C.PW-48
examined, cross examined and discharged. No other PW is present. PW Vinod Kumar
has not been served. PW Vinod Kumar along with all the public witnesses be summoned
through IO for 22.4.2003. In the interest of justice, one more opportunity is granted
to the prosecution to lead its entire evidence for the date fixed.
Present : Addl. PP
Sh. Jitender Kakkar for the State Accused in J.C. PW-49, PW-50 and PW-51 examined,
cross-examined and discharged. Put up for RPE on 09.05.03. On the request of
Ld. APP one more opportunity is given to the prosecution to lead entire remaining
evidence. The witnesses be summoned through I.O. Put up for P.E. on 09.05.03. ASJ/Delhi
22.04.03 1809/05/03Present Sh. Bakshish Singh Spl. PP for the state
Accused in JCPW-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
Accused 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.
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. 19 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 bring his advocate on next date.
The recording in the
order sheet of the trial Judge is not accurate. I say so for the reason that
examination of witnesses from 1 to 56 was done when accused was not represented
by an advocate. I have come to this conclusion after carefully reading the evidence
of these witnesses recorded by the learned trial Judge. By way of illustration,
I have extracted evidence of some of the witnesses recorded on different dates
:- "PW 1 Darshan Kumar S/o Fakir Chand, Age - 30 years, Driver, R/o B-48, Piragarhi,
New Delhi - 43 I was working as conductor in blue line bus No. DL1P3088 and the
said bus used to ply from Nangloi to Ajmeri Gate.
20 x x x x x xdeferred
as defence counsel is not available. PW2 Vijay Kumars/o Fakir Chand, Age about
28 years, Driver, R/o C-154 Pira Garhi, Relief Camp, Delhi. I am working as
driver in blue line bus DL1P 3088 and the sadi bus plies from Ajmeri Gate to
Nangloi. x x x x x xNil opportunity given. PW3Moin Khan S/o Abdul Rashid Khan,
Age - 22 years, service, R/o B-104, Prem Nagar, Kirari Village, Delhi. x x x x x
xby counsel Firoz Khan.PW4Imtiyaz KhanS/o Rustam Khan, Age - 25 years, Machine Operator,
R/o H-10, Man Sarover Park, Riti Road, Shahdrah. x x x x x xNil Opportunity
18). The records would
disclose that during the committal proceedings before the learned Magistrate,
the appellant was assisted by one Sri. V.K. Jain, a learned counsel employed by
He continued till the
case was committed to the Court of Sessions Judge. Before the said Court, one
Mr. Feroze Khan was employed by the State to assist the appellant. He
participated in the proceedings before the Sessions Judge only on few days of
the trial. After he stopped attending the 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
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 a counsel, it is the mandatory duty of the court
to appoint a counsel to represent him. The record reveals that the evidences of
56 witnesses, out of the 65 witnesses, examined by the prosecution in support
of the indictment, including the eye witnesses and the Investigating Officer, were
recorded by the Trial Court without providing a counsel to the appellant.
The record also reveals
that none of the 56 witnesses were cross-examined by the accused/appellant. It is
only thereafter, the wisdom appears to have dawned on the Trial Court to appoint
a learned counsel on 04.12.2003 to defend the appellant. The evidences of the prosecution
witnesses from 57 to 65 were recorded in the presence of the freshly appointed
learned counsel, who thought it fit 23not to cross-examine any of those
Before the conclusion
of the trial, she had filed an application to cross-examine only one prosecution
witness and that prayer in the application had been granted by the Trial Court
and the learned counsel had performed the formality of cross-examining this
witness. I do not wish to comment on the performance of the learned counsel,
since I am of the view that `less said the better'. In this casual manner, the trial,
in a capital punishment case, was concluded by the Trial Court.
It will, thus, be
seen that the trial court did not think it proper to appoint any counsel to
defend the appellant/accused, when the counsel engaged by him did not appear at
the commencement of the trial nor at the time of recording of the evidence of
the prosecution witnesses. The accused did not have the aid of the counsel in
any real sense, although, he was as much entitled to such aid during the period
The record indicates,
as I have already noticed, that the appointment of learned counsel and her appearance
during the last stages of the trial was rather proforma than active. It cannot
seriously be doubted at this late date that the right of cross-examination is
included in the right of an accused in a criminal case, to confront the
witnesses against him not only on facts but also to discredit the witness by showing
that his 24 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
(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. 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-examination.
Section 25 138 of the Evidence Act confers a right on the adverse party to cross-examine
a witness who had been examined in chief, subject of course to expression of his
desire to the said effect. But indisputably such an opportunity is to be
An accused has not
only a valuable right to represent himself, he has also the right to be
informed thereabout. If an exception is to be carved out, the statute must say
so expressly or the same must be capable of being inferred by necessary implication.
There are statutes like the Extradition Act, 1962 which excludes taking of
evidence vis-`-vis opinion.
"11) In my view,
every person, therefore, has a right to a fair trial by a competent court in
the spirit of the right to life and personal liberty. The object and purpose of
providing competent legal aid to undefended and unrepresented accused persons are
to see that the accused gets free and fair, just and reasonable trial of charge
in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) Vs.
State of Gujarat (2006) 3 SCC 374 has explained the concept of fair trial to an
accused and it was central to the administration of justice and the cardinality
of protection of human rights.
It is stated : "35.
This Court has often emphasised that in a criminal case the fate of the proceedings
cannot always be left entirely in the hands of the parties, crime being public wrong
in breach and violation of public rights and duties, which affects the whole community
as a community and is harmful to society 26in general. The concept of fair trial
entails familiar triangulation of interests of the accused, the victim and the society
and it is the community that acts through the State and prosecuting agencies.
Interest of society is not to be treated completely with disdain and as persona
The courts have always
been considered to have an overriding duty to maintain public confidence in the
administration of justice--often referred to as the duty to vindicate and uphold
the "majesty of the law". Due administration of justice has always been
viewed as a continuous process, not confined to determination of the particular
case, protecting its ability to function as a court of law in the future as in
the case before it.
If a criminal court is
to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in
the trial evincing intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to the parties and to the
community it serves.
The courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive conduct that
has occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and standing of the judges
as impartial and independent adjudicators. 36. The principles of rule of law
and due process are closely linked with human rights protection. Such rights
can be protected effectively when a citizen has recourse to the courts of law.
It has to be unmistakably
understood that a trial which is primarily aimed at ascertaining the truth has
to be fair to all concerned. There can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it may have to be determined
in seemingly infinite variety of actual situations with the ultimate object in mind
viz. whether something that 27 was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of justice has
It will not be
correct to say that it is only the accused who must be fairly dealt with. That
would be turning a Nelson's eye to the needs of society at large and the victims
or their family members and relatives. Each one has an inbuilt right to be
dealt with fairly in a criminal trial. Denial of a fair trial is as much
injustice to the accused as is to the victim and the society.
Fair trial obviously
would mean a trial before an impartial judge, a fair prosecutor and an atmosphere
of judicial calm. Fair trial means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried is eliminated. If
the witnesses get threatened or are forced to give false evidence that also
would not result in a fair trial. The failure to hear material witnesses is
certainly denial of fair trial.
37. A criminal trial
is a judicial examination of the issues in the case and its purpose is to arrive
at a judgment on an issue as to a fact or relevant facts which may lead to the discovery
of the fact in issue and obtain proof of such facts at which the prosecution and
the accused have arrived by their pleadings; the controlling question being the
guilt or innocence of the accused. Since the object is to mete out justice and to
convict the guilty and protect the innocent, the trial should be a search for
the truth and not a bout over technicalities, and must be conducted under such rules
as will protect the innocent, and punish the guilty.
The proof of charge
which has to be beyond reasonable doubt must depend upon judicial evaluation of
the totality of the evidence, oral and circumstantial, and not by an isolated
scrutiny. "12) In M.H. Hoskot Vs. State of Maharashtra 1978 (3) SCC 544, this
Court has held : 28 "14. The other ingredient of fair procedure to a prisoner,
who has to seek his liberation through the court process is lawyer's services.
Judicial justice, with
procedural intricacies, legal submissions and critical examination of evidence,
leans upon professional expertise; and a failure of equal justice under the law
is on the cards where such supportive skill is absent for one side. Our judicature,
moulded by Anglo-American models and our judicial process, engineered by kindred
legal technology, compel the collaboration of lawyer-power for steering the
wheels of equal justice under the law.
Free legal services
to the needy is part of the English criminal justice system. And the American
jurist, Prof. Vance of Yale, sounded sense for India too when he said : "What
does it profit a poor and ignorant man that he is equal to his strong
antagonist before the law if there is no one to inform him what the law is? Or
that the courts are open to him on the same terms as to all other persons when
he has not the wherewithal to pay the admission fee?" "
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 be decided against an accused in the absence of a counsel.
It is only a lawyer
who is conversant with law who can properly defend an accused in a criminal case.
Hence, in our opinion, if a criminal case (whether a trial or appeal/revision)
is decided against an accused in the absence of a counsel, there will be violation
of Article 21 of the Constitution. 29 10. The right to appear through counsel
has existed in England for over three centuries. In ancient Rome there were great
lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused.
In fact the higher
the human race has progressed in civilisation, the clearer and stronger has
that right appeared, and the more firmly has it been held and asserted. Even in
the Nuremberg trials the Nazi war criminals, responsible for killing millions of
persons, were yet provided counsel. Therefore when we say that the accused should
be provided counsel we are not bringing into existence a new principle but simply
recognising what already existed and which civilised people have long enjoyed.
"14) In the case
of Hussainara Khatoon and Others v. Home Secy., State of Bihar (1980) 1 SCC 98,
it is held : "6. Then there are several undertrial prisoners who are
charged with offences which are bailable but who are still in jail presumably
because no application for bail has been made on their behalf or being too poor
they are unable to furnish bail.
It is not uncommon to
find that undertrial prisoners who are produced before the Magistrates are unaware
of their right to obtain release on bail and on account of their poverty, they
are unable to engage a lawyer who would apprise them of their right to apply
for bail and help them to secure release on bail by making a proper application
to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release
the undertrial prisoners produced before them on their personal bond but insist
on monetary bail with sureties, which by reason of their poverty the undertrial
prisoners are unable to furnish and which, therefore, effectively shuts out for
them any possibility of release from pre- trial detention.
situation cries aloud for introduction of an adequate and comprehensive 30legal
service programme, but so far, these cries do not seem to have evoked any
response. We do not think it is possible to reach the benefits of the legal
process to the poor, to protect them against injustice and to secure to them
their constitutional and statutory rights unless there is a nation-wide legal
service programme to provide free legal services to them.
It is now well settled,
as a result of the decision of this Court in Maneka Gandhi v. Union of India 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-American models and our judicial process, engineered by kindred legal technology,
compel the collaboration of lawyer-power for steering the wheels of equal
justice under the law".
Free legal services to
the poor and the needy is an essential element of any "reasonable, fair
and just" procedure. It is not necessary to quote authoritative pronouncements
by Judges and Jurists in support of the view that without the service of a lawyer
an accused person would be denied "reasonable, fair and 31just" procedure.
Black, J., observed in Gideon v. Wainwright : "Not only those precedents but
also reason and reflection require us to recognise that in our adversary system
of criminal justice, any person haled into court, who is too poor to hire a
lawyer cannot be assured a fair trial unless counsel is provided for him.
This seems to us to
be an obvious truth. Governments, both State and Federal quite properly spend
vast sums of money to establish machinery to try defendants accused of crime. Lawyers
to prosecute are everywhere deemed essential to protect the public's interest
in an orderly society. Similarly, there are few defendants charged with crime who
fail to hire the best lawyers they can get to prepare and present their defences.
That Government hires
lawyers to prosecute and defendants who have the money hire lawyers to defend
are the strongest indications of the widespread belief that lawyers in criminal
courts are necessities, not luxuries. The right of one charged with crime to counsel
may not be deemed fundamental and essential to fair trials in some countries, but
is in ours.
From the very beginning,
our State and national constitutions and laws have laid great emphasis on procedural
and substantive safeguards designed to assure fair trials before impartial tribunals
in which every defendant stands equal before the law. This noble ideal cannot be
realised if the poor man charged with crime has to face his accusers without a lawyer
to assist him.
"The philosophy of
free legal service as an essential element of fair procedure is also to be found
in the passage from the judgment of Douglas, J. in Jon 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, 32 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 individual factors peculiar to each case. These, of course would be the most
difficult to anticipate. One relevant factor would be the competency of the
individual defendant to present his own case." (emphasis added) "
15) In the case of
Khatri Vs. State of Bihar (1981) 1 SCC 627, this Court has held : "5. That
takes us to one other important issue which arises in this case. It is clear from
the particulars supplied by the State from the records of the various judicial Magistrates
dealing with the blinded prisoners from time to time that, neither at the time when
the blinded prisoners were produced for the first time before the Judicial Magistrate
nor at the time when the remand orders were passed, was any legal representation
available to most of the blinded prisoners.
The records of the Judicial
Magistrates show that no legal representation was provided to the blinded prisoners,
because none of them asked for it nor did the Judicial Magistrates enquire from
the blinded prisoners produced before them either initially or at the time of remand
whether they wanted any legal representation at State cost. The only excuse for
not providing legal representation to the blinded prisoners at the cost of the
State was that none of the blinded prisoners asked for it.
The result was that barring
two or three blinded prisoners who managed to get a lawyer to represent them at
the later stages of remand, most of the blinded prisoners were not represented
by any lawyers and save a few who were released on bail, and that too after being
in jail for quite some time, the rest of them continued to languish in jail. It
is difficult to understand how this state of affairs could be permitted to continue
despite the decision of this Court in Hussainara Khatoon (IV) case.
This Court has pointed
out in Hussainara Khatoon (IV) case which was decided as far back as March 9,
1979 that the right to free legal services is clearly an essential ingredient
of reasonable, fair and just procedure for a person accused of an offence and it
must be held implicit in the guarantee of Article 21 and the State is under a constitutional
mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so require, provided of course the accused person
does not object to the provision of such lawyer.
It is unfortunate
that though this Court declared the right to legal aid as a fundamental right of
an accused person by a process of judicial construction of Article 21, most of the
States in the country have not taken note of this decision and provided free
legal services to a person accused of an offence.
We regret this disregard
of the decision of the highest court in the land by many of the States despite the
constitutional 34declaration in Article 141 that the law declared by this Court
shall be binding throughout the territory of India. Mr K.G. Bhagat on behalf of
the State agreed that in view of the decision of this Court the State was bound
to provide free legal services to an indigent accused but he suggested that the
State might find it difficult to do so owing to financial constraints.
We may point out to
the State of Bihar that it cannot avoid its constitutional obligation to provide
free legal services to a poor accused by pleading financial or administrative inability.
The State is under a constitutional mandate to provide free legal aid to an accused
person who is unable to secure legal services on account of indigence and
whatever is necessary for this purpose has to be done by the State.
The State may have
its financial constraints and its priorities in expenditure but, as pointed out
by the court in Rhem v. Malcolm "the law does not permit any Government to
deprive its citizens of constitutional rights on a plea of poverty" and to
quote the words of Justice Blackmum in Jackson v. Bishop "humane considerations
and constitutional requirements are not in this day to be measured by dollar considerations".
Moreover, this constitutional obligation to provide free legal services to an indigent
accused does not arise only when the trial commences but also attaches when the
accused is for the first time produced before the Magistrate.
It is elementary that
the jeopardy to his personal liberty arises as soon as a person is arrested and
produced before a Magistrate, for it is at that stage that he gets the first opportunity
to apply for bail and obtain his release as also to resist remand to police or jail
That is the stage at
which an accused person needs competent legal advice and representation and no procedure
can be said to be reasonable, fair and just which denies legal advice and representation
to him at this stage. We must, therefore, hold that the State is under a constitutional
obligation to provide free legal services to an indigent accused not only at the
stage of trial but also at the stage when he is first 35produced before the Magistrate
as also when he is remanded from time to time.
6. But even this
right to free legal services would be illusory for an indigent accused unless the
Magistrate or the Sessions Judge before whom he is produced informs him of such
It is common knowledge
that about 70 per cent of the people in the rural areas are illiterate and even
more than that percentage of people are not aware of the rights conferred upon
them by law. There is so much lack of legal awareness that it has always been
recognised as one of the principal items of the programme of the legal aid movement
in this country to promote legal literacy.
It would make a mockery
of legal aid if it were to be left to a poor ignorant and illiterate accused to
ask for free legal services. Legal aid would become merely a paper promise and
it would fail of its purpose. The Magistrate or the Sessions Judge before whom
the accused appears must be held to be under an obligation to inform the
accused that if he is unable to engage the services of a lawyer on account of poverty
or indigence, he is entitled to obtain free legal services at the cost of the State.
Unfortunately, the Judicial
Magistrates failed to discharge this obligation in the case of the blinded prisoners
and they merely stated that no legal representation was asked for by the
blinded prisoners and hence none was provided. We would, therefore, direct the
Magistrates and 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 36 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
circumstances of the case and the needs of social justice require that he should
be given free legal representation. There may be cases involving offences such as
economic offences or offences against law prohibiting prostitution or child abuse
and the like, where social justice may require that free legal services need
not be provided by the State. "
16) In Ram Awadh v. State
of U.P. 1999 Cr.L.J. 4083, the Allahabad High Court held : "14. The requirement
of providing counsel to an accused at the State expense is not an empty
formality which may be not by merely appointing a counsel whatever his calibre may
be. When the law enjoins appointing a counsel to defend an accused, it means an
effective counsel, a counsel in real sense who can safeguard the interest of
the accused in best possible manner which is permissible under law.
An accused facing
charge of murder may be sentenced to death or imprisonment for life and consequently
his case should be handled by a competent person and not by a novice or one who
has no professional expertise. A duty is cast upon the Judges before whom such indigent
accused are facing trial for serious offence and who are not able to engage a
counsel, to appoint competent persons for their defence.
It is needless to emphasis
that a Judge is not a prosecutor and his duty is to discern the truth so that
he is able to arrive at a correct conclusion. A defence lawyer plays an important
role in bringing out the truth before the Court by cross-examining the witnesses
and placing relevant materials or evidence. The absence of proper cross-examination
may at times result in miscarriage 37 of justice and the Court has to guard
against such an eventuality. "
(17)The prompt disposition
of criminal cases is to be commended and encouraged. But in reaching that result,
the accused charged with a serious offence must not be stripped of his valuable
right of a fair and impartial trial. To do that, would be negation of concept
of due process of law, regardless of the merits of the appeal.
The Cr.P.C. provides
that in all criminal prosecutions, the accused has a right to have the assistance
of 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 the
right involved is of such a character that it cannot be denied without
violating those fundamental principles of liberty and justice which lie at the
base of all our judicial proceedings. The necessity of counsel was so vital and
imperative that the failure of the trial court to make an effective appointment
of a counsel was a denial of due process of law. It is equally true that the
absence of fair and proper trial would be violation of fundamental principles
of judicial procedure on account of breach of mandatory provisions of Section
304 of Cr.P.C.
(18) After carefully
going through the entire records of the trial court, I am convinced that the
appellant/accused was not provided the assistance of a counsel in a substantial
and meaningful sense. To hold and decide otherwise, would simply to ignore actualities
and also would be to ignore the fundamental postulates, already adverted to.
(19) The learned counsel
for the respondent-State, Sri Atri contends that since no prejudice is caused to
accused in not providing a defence counsel, this Court need not take exception
to the trial concluded by the learned Sessions Judge and the conviction and
sentence passed against the accused. I find it difficult to accept the argument
of the learned senior counsel. The Cr. P.C. ensures that an accused gets a fair
trial. It is essential that the accused is given a reasonable opportunity to
defend himself in the trial.
He is also permitted
to confront the witnesses and other evidence that the prosecution is relying
upon. He is also allowed the assistance of a lawyer of his choice, and if he is
unable to afford one, he is given a lawyer for his defence. The right to be defended
by a learned counsel is a principal part of the right to fair trial. If these minimum
safeguards are not provided to an accused; that itself is "prejudice"
to an accused. It is worth to notice the observations made by this Court in the
case of Rafiq Ahmad alias Rafi vs. State of U.P. (2011) 8 SCC 300, wherein it
"35. When we
speak of prejudice to an accused, it has to be shown that the accused has
suffered some disability or detriment in the protections available to him under
the Indian criminal jurisprudence. It is also a settled canon of criminal law that
this has occasioned the accused with failure of justice. One of the other cardinal
principles of criminal justice administration 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
(c) Presumption of
innocence (not guilty);(d) Prosecution must prove its case beyond reasonable
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 accused is able to show
that there is serious prejudice to either of these aspects and that the same has
defeated the rights available to him under the criminal jurisprudence, then the
accused can seek benefit under the orders of the court.
37. Right to fair
trial, presumption of innocence until pronouncement of guilt and the standards of
proof i.e. the prosecution must prove its case beyond reasonable doubt are the basic
and crucial tenets of our criminal jurisprudence. The courts are required to
examine both the contents 41 of the allegation of prejudice as well as its
extent in relation to these aspects of the case of the accused. It will neither
be possible nor appropriate to state such principle with exactitude as it will
always depend on the facts and circumstances of a given case. Therefore, the court
has to ensure that the ends of justice are met as that alone is the goal of criminal
(20)In view of the above
discussion, I cannot sustain the judgments impugned and they must be reversed
and the matter is to be remanded to the Trial Court with a specific direction
that the Trial Court would assist the accused by employing a State counsel
before the commencement of the trial till its conclusion, if the accused is
unable to employ a counsel of his own choice. Since I am remanding the matter
for fresh disposal, I clarify that I have not expressed any opinion regarding
the merits of the case.
(21)In view of the
above, I allow the appeal and set aside the conviction and sentence imposed by the
Additional Sessions Judge in Sessions Case No.122 of 1998 dated 03.11.2004 and
the Judgment and Order passed by the High Court in Crl. Appeal No. 41 of 2005
dated 04.08.2006 and remand the case to the Trial Court for fresh disposal in
accordance with law and in the light of the observations made by me as above. Since
the incident is of the year 1997, I direct the Trial Court to conclude the
trial 42as expeditiously as possible at any rate within an outer limit of three
months from the date of communication of this order and report the same to this
Mohd. Hussain @
Julfikar Ali Vs. The State (Govt. of NCT) Delhi
[Criminal Appeal No.
1091 of 2006]
J U D G M E N T
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.
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
is how the appellant is before us with the leave of the Court. He challenges
his conviction and sentence inter alia on the ground that he was not given a fair
trial, which alone vitiates his conviction and sentence. India is the world's
largest and most vibrant democracy and the judiciary is to ensure the rule of
law. This Court being the Court of last resort cannot brush aside the claim
without scrutiny only because the crime is serious and allegedly committed by the
citizen of a country with which this country has no cordial relation.
to the prosecution, as usual in a winter evening of 30th December, 1997 at 6.20
P.M., a Blue-line bus carrying passengers was on way to Nangloi from Ajmeri Gate,
Delhi and when stopped at Rampura bus stand on Rohtak Road to drop the
passengers, an explosion took place inside the bus in which four passengers died
and 24 persons sustained serious injuries.
case under Section 302, 307 and 120-B of Indian Penal Code and Section 3 and 4 of
the Explosives Substances Act was registered on the same day. During the course
of investigation, one Darshan Kumar, the conductor of the aforesaid blue line bus
disclosed to the investigating agency that one passenger boarded the bus from Paharganj
with a rexine-bag saying that he would go to Nangloi.
He kept the
rexine-bag underneath the seat where he was sitting but got down at Karol Bagh leaving
the rexine-bag. Further investigation brought to light that some persons belonging
to terrorist organizations are operating in the Capital and their object is to create
an atmosphere of terror, insecurity and instability in the country by killing
prompted raids at different parts of the city in which hand grenades and materials
used for making bombs were recovered. Some persons were also arrested and during
the interrogation they admitted their association with terrorist organizations.
They also admitted to
have come to this country for `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.
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 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 produce its witnesses to substantiate the
On 18th May, 1999, the
appellant was produced before the Trial Court but his counsel did not put in
his appearance. Despite that, P.W.l- Darshan Kumar, the conductor of the bus was
examined in part and his cross- examination was deferred at the request of the
appellant. However, on the same day, P.W.2- Vijay Kumar was examined and
On the next date
fixed in the case i.e. 3rd June, 1999 two witnesses namely; P.W.3- Moin Khan
and P.W.4- Imtiaz Khan were examined and discharged. But cross-examination of
P.W.1- Darshan Kumar did not take place at the request of the defence counsel. The
next date relevant is 20th July, 1999 when the appellant was represented by his
counsel and on that date, P.W.5- Ganesh Sharma, P.W.6- Basant Verma and P.W.7-
Manohar Lal were examined and discharged.
Thereafter, the case
was adjourned to 30th August, 1999 and from that date till 1st October, 2003, though
the appellant was not represented by any counsel, altogether 56 prosecution witnesses
were examined to prove the charges against him. Obviously in the absence of the
counsel the truthfulness or otherwise of their evidences were not tested by
is relevant to note that the Trial Court, during all this long period, did not
realize that the appellant was not represented by any counsel and it is on 4th
December, 2003 the appellant brought to the notice of the Trial Court that for
the last several dates, the counsel appointed by the Court was not present and hence
a new counsel be appointed.
It is on the appellant's
prayer that one Ms. Sadhana Bhatia, Advocate present in the Court on the said
date, was appointed to defend the appellant at the expenses of the State. Thereafter,
on 22nd December, 2003, in the presence of said Ms. Sadhana Bhatia, counsel for
the appellant, evidences of P.W.57- Dr. Mamtesh, P.W.58- Dr. Narendra Bhambri and
P.W.59- 51ASI Mahender Singh were recorded.
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 52prayed 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.
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, it is
of paramount importance.
To arrive at the truth,
its veracity should be judged and for that purpose cross-examination is an acid
test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief.
Its purpose is to elicit facts and materials to establish that the evidence of witness
is fit to be rejected. The appellant in the present case was denied this right
only because he himself was not trained in law and not given the assistance of
a lawyer to defend him. Poverty also came in his way to engage a counsel of his
said so, it needs consideration as to whether assistance of the counsel would
be necessary for fair trial. It needs no emphasis that conviction and sentence
can be inflicted only on culmination of the trial which is fair and just. I
have no manner of doubt that in our adversary system of criminal justice, any person
facing trial can be assured a fair trial only when the counsel is provided to
him. Its roots are many and find places in manifold ways. It is internationally
recognized by covenants and Universal Declaration of Human Rights,
constitutionally guaranteed and statutorily protected.
14 of the International Covenant on Civil and Political Rights guarantees to the
citizens of nations signatory to that covenant various rights in the
determination of any criminal charge and confers on them the minimum guarantees.
Article 14 (2) and (3) of the said covenant read as under: 54 "Article 14.
xxx xxx xxx 2. Everyone charged with a criminal offence shall have the right to
be presumed innocent until proved guilty according to law. 3. In the determination
of any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality:
a. To be informed promptly
and in detail in a language which he understands of the nature and cause of the
charge 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
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 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
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 impartial tribunal in the determination of his rights and
obligations and of any criminal charges against him. 56Article 11 of Universal Declaration
of Human Rights guarantees everyone charged with a penal offence all the guarantees
necessary for the defence, the same reads as under:
charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.
(2) No one shall be
held guilty of any penal offence on account of any act or omission which did not
constitute a penal offence, under national or international law, at the time when
it was committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the penal offence was committed."
salutary features forming part of the International Covenants and Universal Declaration
on Human Rights are deep rooted in our constitutional scheme. Article 21 of the
Constitution of India commands in emphatic terms that no person shall be
deprived of his life or personal liberty except according to the procedure established
by law and Article 22 (1) thereof confers on the person charged to be defended
by a legal practitioner of his choice. 57Article 39 A of the Constitution of
India casts duty on the State to ensure that justice is not denied by reason of
economic or other disabilities in the legal system and to provide free legal
aid to every citizen with economic or other disabilities.
the International Covenants and Declarations and the constitutional guarantees
referred to above, Section 303 of the Code of Criminal Procedure gives right to
any person accused of an offence before a criminal court to be defended by a
pleader of his choice. Section 304 of the Code of Criminal Procedure contemplates
legal aid to accused facing charge in a case 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
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.
my opinion, the right of a person charged with crime to have the services of a
lawyer is fundamental and essential to fair trial. The right to be defended by a
legal practitioner, flowing from Article 22 (1) of the Constitution has further
been fortified by the introduction of the Directive Principles of State Policy embodied
in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and
enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure.
Legal assistance to a
poor person facing trial whose life and personal liberty is in jeopardy is mandated
not only by the Constitution and the Code of Criminal Procedure but also by International
Covenants and Human Rights Declarations. If an accused too poor to afford a
lawyer is to go thorough the trial without legal assistance, such a trial cannot
be regarded as reasonable, fair and just. The right to be heard in criminal trial
would be inconsequential and of no avail if within itself it does not include right
to be heard through counsel.
One cannot lose sight
of the fact that even intelligent and educated men, not 60trained in law, have
more than often no skill in the science of law if charged with crime. Such an
accused not only lacks both the skill and knowledge adequately to prepare his defence
but many a time looses his equilibrium in face of the charge.
A guiding hand of counsel
at every step in the proceeding is needed for fair trial. If it is true of men of
intelligence, how much true is it of the ignorant and the illiterate or those of
lower intellect! An accused without the lawyer faces the danger of conviction
because he does not know how to establish his innocence.
in mind the aforesaid principles, I proceed to examine the facts of the present
case. In the case in hand the accused is a Pakistani and seems illiterate. He
asked for engagement of a counsel to defend him at State expenditure which was provided
but unfortunately for him the counsel so appointed remained absent and a large
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 61guilty.
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.
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 & Others v. Home Secy., State of Bihar,
(1980) 1 SCC 98, in which it has been held as follows:
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............."
found that the appellant has been held guilty and sentenced to death in a trial
which was not reasonable, fair and just, the next question is as to whether it
is a fit case in which direction be given for the de novo trial of the
appellant after giving him the assistance of a counsel. I have given my most anxious
consideration to this aspect of the matter and have no courage to direct for
his de novo trial at such a distance of time. For an occurrence of 1997, the
appellant was arrested in 1998 and since then he is in judicial custody.
The charge against 63him
was framed on 18.02.1999 and it took more than five years for the prosecution to
produce its witnesses. True it is that in the incident four persons have lost their
lives and several innocent persons have sustained severe injuries. Further, the
crime was allegedly committed by a Pakistani but these factors do not cloud my
reason. After all, we are proud to be a democratic country and governed by rule
The appellant must be
seeing the hangman's noose in his dreams and dying every moment while awake from
the day he was awarded sentence of death, more than seven years ago. The right of
speedy trial is a fundamental right and though a rigid time limit is not
countenanced but in the facts of the present case I am of the opinion that after
such a distance of time it shall be travesty of justice to direct for the
appellant's de novo trial.
By passage of time,
it is expected that many of the witnesses may not be found due to change of
address and various other reasons and few of them may not be in this world. Hence,
any time limit to conclude the trial would not be pragmatic.
I am of the opinion that the conviction and sentence of the appellant is
vitiated, not on merit but on the ground that his trial was not fair and just.
admittedly is a Pakistani, he has admitted this during the trial and in the statement
under Section 313 of the Code of Criminal Procedure. I have found his
conviction and sentence illegal and the natural consequence of that would be
his release from the prison but in the facts and circumstances of the case, I
direct that he be deported to his country in accordance with law and till then
he shall remain in jail custody.
the result the appeal is allowed, appellant's conviction and sentence is set aside
with the direction aforesaid.
(CHANDRAMAULI KR PRASAD)