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TMI Blog1968 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... the IPC. The Temporary Civil and Sessions Judge of Hamirpur fixed 28-2-1967 as the date for starting the actual trial of the case. On that day, before beginning the trial, he appointed one Sri Sirish Chandra, Advocate, as amicus curiae counsel to represent the Appellant. He amended the charge which was read out to the Appellant who pleaded not guilty. Thereafter, on that very day, evidence of two principal prosecution witnesses was recorded. The first witness was Smt. Naziran, the mother of the Appellant, who had lodged the FIR and the second witness was Khan Bahadur, son of the Appellant, who was the sole eye-witness of the incident of murder. The remaining evidence was recorded on 1-3-1967, on which date the Appellant was also examined Under Section 342, Code of Criminal Procedure. The Appellant stated that he would not produce any defence. A joint application of counsel for parties was presented on that day requesting the court to make a local inspection and 12-3-1967 was fixed for local inspection. The Temporary Sessions Judge in that order directed that a suitable conveyance should be arranged for him as he had no conveyance of his own. On 8-3-1967, the Public Prosecutor gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no person shall be deprived of his life or personal liberty, except according to procedure established by law. 3. The main procedure for trial of a criminal case is laid down in the Code of Criminal Procedure and in this case, there is no grievance that the procedure laid down therein was not followed by the Court of Session. The grievance, however, is that there are provisions supplementing the procedure laid down by the Code of Criminal Procedure and the course adopted by the Court of Session was in breach of these supplementary rules. Reference was made to Rule 37 in Ch. V of the General Rules (Criminal), 1957 (hereinafter referred to as the Rules ) promulgated by the High Court of Allahabad in exercise of its powers Under Article 227 of the Constitution and Section 554 of the Code of Criminal Procedure. These Rules were published under Notification No. 241/A/VIII-a-I dated 4-9-1956 in the Supplement to the Government Gazette of Uttar Pradesh dated 3-11-1956. The notification clearly mentions the powers under which the High Court promulgated the Rules and also contains a clear recitation that the Rules were being published with the previous approval of the Government of Utt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel to represent the accused. The principal pre-condition is that the accused has himself not engaged a counsel and is not possessed of sufficient means to do so. The Rule adds that no hard and fast rule as to the sufficiency of means should be applied when the court has to decide whether an amicus curiae counsel should be provided at the cost of the Government and each case must be decided on its merits. It was because of these conditions that the word may was used in the Rule; but the intention of the Rule is perfectly clear that no accused person should remain totally unrepresented by a lawyer, if he is being tried on a charge for which a capital sentence can be awarded. Considering the purpose of this Rule, we hold that the word may in this Rule must be interpreted as laying down a mandatory direction to the Court to engage a counsel, if the conditions laid down in the Rule are otherwise satisfied. 4. In this connection, Learned Counsel for the State drew our attention to two decisions of this Court reported in Janardan Reddy and Ors. v. The State of Hyderabad and others and connected Appeals 1951 SCR 344 and Tara Singh v. The State 1951 SCR 729. In the first of these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure and it cannot be held that it is void on any such ground. 6. We have already quoted above Rule 37 of the Rules in full. The grievance on behalf of the Appellant is not that no counsel at all was engaged to represent him in the Court of Session; but non-compliance with the Rule is urged on the ground that there was breach of the last clause of that Rule. That clause requires that the counsel appointed under the Rules shall be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence. In this case, the facts mentioned by us earlier clearly show that Sri Shukla was appointed counsel for the Appellant on 28-2-1967, which was the date fixed for starting the trial and the trial was, in fact, started after his appointment on that very day. Thus, sufficient time was not allowed to him to prepare for the defence of the Appellant. At one stage, information was attempted to be given to this Court on behalf of the State Government on the basis of entries in the register maintained for appointment of amicus curiae counsel that, in fact, Sri Shukla had been appointed to represent the Appellant on 18-2-1967. That register was sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate engaged on behalf of the accused to prepare his case and conduct it on behalf of his client. We are satisfied that the time given was insufficient and in the circumstances, no real opportunity was given to the accused to defend himself. This view was expressed on the basis of the fact found that the advocate had been engaged for the accused two hours prior to the trial. In Mathai Thommon v. State AIR 1959 Ker 241, the Kerala High Court was dealing with a Sessions trial in which the counsel was engaged to defend the accused on 2-8-1958, when the trial was posted to begin on 4-8-1958, showing that barely more than a day was allowed to the counsel to get prepared and obtain instructions from the accused. Commenting on the procedure adopted by the Sessions Court, the High Court finally expressed its opinion by saying: Practices like this would reduce to a farce the engagement of counsel Under Rule 21 of the Criminal Rules of Practice which has been made for the purpose of effectively carrying out the duty cast on courts of law to see that no one is deprived of life and liberty without a fair and reasonable opportunity being afforded to him to prove his innocence. We consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. The State of Bombay and connected Cases 1953 SCR 730, the Punjab Communist Detenus Rules, 1950 framed by the Government of Punjab Under Section 4(a) of the Preventive Detention Act, 1950 were held to be covered by the word law. In Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Ors. (1959) Sup. ISCR 806, Rules made by the Legislature Under Articles 118(1) and 208(1) and the privileges of each House Under Articles 105(3) and 194(3) were held to be law justifying deprivation of personal liberty guaranteed by Article 21. In the case of Makhan Singh v. State of Punjab and Connected Appeals (1964) 4 SCR 797 the Defence of India Rules made by the Central Government Under Section 3 of the Defence of India Ordinance, 1962 were held to be law for purposes of Article 21. Thus, this Court has clearly laid it down that Rules made by a subordinate legislative authority in exercise of its delegated power of legislation granted by the Constitution or a Statute enacted by the legislature are law for purposes of Article 21, though, of course, it is always open to the person affected to challenge the validity of those Rules. In the present case, we have already held that Rule 37 of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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