2012 (8) TMI 891 - SC - Indian Laws

Convicted and sentenced under Sections 302/307 of Indian Penal Code - Convicted under Section 3 of The Explosive Substances Act, 1908 - Unable to engage a counsel to defend himself - Denial the right of a counsel - Held that - 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 2006 (3) TMI 729 - SUPREME COURT 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. In the case of Hussainara Khatoon and Others v. Home Secy., State of Bihar 1979 (4) TMI 159 - SUPREME COURT OF INDIA held that 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) . Accordingly, 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. Appellant 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. - Decided in favour of appellant.

Issues Involved:
1. Whether the appellant was given a fair and impartial trial.
2. Whether the appellant was denied the right of a counsel.
3. Merits of the conviction and sentence.

Detailed Analysis:

1. Fair and Impartial Trial:
The appellant, an illiterate foreign national, was convicted and sentenced to death without being assigned a counsel for his defense. The trial court's failure to provide legal aid at state expense was highlighted, as it is a duty to ensure the accused is defended properly and effectively. The High Court dismissed the appellant's plea for a fair trial, stating that the accused was represented by a counsel initially, and later by an amicus curiae when his private counsel stopped appearing. However, the Supreme Court found that during the trial, the appellant was not represented by a counsel for a significant part of the proceedings, which included the examination of 56 out of 65 prosecution witnesses without cross-examination. This lack of representation was deemed a violation of the appellant's right to a fair trial.

2. Denial of Right of Counsel:
The appellant was not provided with a counsel for a substantial part of the trial, which included critical stages such as the examination of key witnesses. The trial court's failure to appoint a counsel when the appellant's private counsel stopped appearing was a breach of the mandatory duty to ensure legal representation. The Supreme Court emphasized the importance of cross-examination as a fundamental right of the accused, which was denied in this case. The appellant was only provided with a counsel at the fag end of the trial, who did not actively participate in the defense, further compromising the fairness of the trial.

3. Merits of the Conviction and Sentence:
The Supreme Court, while addressing the merits of the case, highlighted the procedural lapses and the denial of the appellant's right to a fair trial. The trial court's reliance on the testimonies of witnesses who were not cross-examined was a significant flaw. The Supreme Court reiterated the importance of providing competent legal aid to ensure a fair trial, as mandated by the Constitution and various international covenants. The appellant's conviction and sentence were set aside due to the denial of a fair trial and the right to counsel.

Separate Judgments:
One judge concurred with setting aside the conviction and sentence due to the denial of legal assistance but disagreed with remanding the case for a fresh trial. The judge highlighted the prolonged incarceration of the appellant and the impracticality of a retrial after such a long period. Instead, the judge directed the appellant's deportation to his home country, considering the passage of time and the potential difficulties in conducting a fair retrial.

Conclusion:
The Supreme Court allowed the appeal, set aside the conviction and sentence, and remanded the case to the trial court for fresh disposal with specific directions to ensure the appellant is provided with legal representation throughout the trial. The court emphasized the constitutional mandate to provide free legal aid to ensure a fair trial, which was denied in this case. The decision underscores the importance of legal representation in upholding the principles of justice and due process.

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