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TMI Blog2019 (12) TMI 1622X X X X Extracts X X X X X X X X Extracts X X X X ..... on 01.02.2013. (C) The appellant was arrested on 04.02.2013, and after completion of investigation charge-sheet was filed on 13.02.2013 in the concerned court and the case was committed to Sessions Court on 18.2.2013. The case was posted for 19.02.2013 to consider whether charges be framed or not. (D) It appears that since no Advocate had entered appearance on behalf of the appellant, on 18.02.2013 a learned Advocate was appointed by the Legal Aid Services Authority to represent the appellant on 19.02.2013. That learned Advocate, however, did not appear on 19.02.2013 when the case was taken up, and as such another learned Advocate came to be appointed through Legal Aid Services to represent the appellant. Such appointment was done on 19.02.2013 and on the same day the charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012. (E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution witnesses were examined. (F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013 and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke earlier it was stated that any other evidence is not to be produced, hence hearing final arguments in case started, which remained incomplete. Put up on 01.03.2013 for placing on record DNA report and rest final arguments. Sd/- Sessions Judge Khandwa (iii) 01.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution has not received DNA report, same will be placed on record on receipt. Hearing of rest of final arguments started which remained incomplete. Put up on 02.03.2013 for placing on record DNA report and rest of final arguments. Sd/- Sessions Judge Khandwa (iv) 02.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The accused is being tried under Section 9 of Protection of Children from Sexual Offences Act, 2012 and according to Provisions of Section 5 (f) of above Act, the situation of previous conviction for the sexual offence under Section 377 IPC is also clear and above fact has found mention in charge No.8 framed in earlier with intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf hence considering the reason so disclosed during arguments defense has not raised any effective objection hence, application stands allowed and concerned documents are taken on record and witness K.K. Mishra PW-13 and Hari Karan PW-12 are permitted to be reexamined. It has been stated by the public prosecutor that above witnesses are present today, hence, above both the witnesses were additionally examined with consent of defense and they were discharged after reexamination. Prosecution stated not to adduce any other evidence as such closed its evidence. The packet of article so filed is in sealed condition, which was opened in presence of both the parties. After evidence let same be deposited in malkhana by duly sealing with memo of property. In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on entering in defense, the accused stated not to adduce any evidence in defense nor any written statement was filed under Section 232(2) Cr.P.C. and as such defense closed its evidence. Put up again for final arguments. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine, additional sentence of rigorous imprisonment 1 302 IPC Death Sentence - - 2 363 IPC Seven years 1000 One month 3 366 IPC Seven years 1000 One month 4 377 IPC Seven years 1000 One month 5 376(2) IPC Life imprisonment 1000 One month Due to being similar act, no separate sentence is being awarded for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012. By preparing warrant of conviction in this regard let accused be sent to jail. The accused has been sentenced to death also and in above regard according to Section 366 Cr.P.C. it has also been directed that death penalty be not executed so long as it is not confirmed by the Hon'ble High Court, hence in that regard according to provision of Section 366(2) Cr.P.C. warrant of handing over accused sentenced to death to taken in custody of jail, is attached separately with warrant. Copy of judgment is given to accused and according to provisions of section 363 (4) Cr.P.C. accused is informed that he has right to appeal and period of appeal. Let entire record of this case be sent for placing before the Hon'ble High Court forthwith for confirmation of death penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso perusable and in Section 376(2)(f) IPC and in Section 6 of the Act, there is provision of punishment for imprisonment for life and minimum sentence of 10 yrs rigorous imprisonment and for similar act, order of sentence is being passed for the offence under Section 376(2) (f) and Secton 377 IPC also, hence separate order of sentence for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 is not being passed. All the sentences of imprisonment shall run concurrently. 67. The accused is in detention since 04.02.2013 hence, let certificate of the period undergone by him in detention during trial be attached with warrant as per provisions section 428 Cr.P.C. which may be used for setting off under Section 428 Cr.P.C. or as per requirement for computing sentence as provided in Section 433 Cr.P.C. 68. On payment of fine, entire amount of fine means Rs.4000/- unless otherwise directed, after expiry of period of appeal be paid to Shantubai PW-3 mother of deceased as compensation. 69. According to provisions of Section 366 Cr.P.C. let entire records and proceeding of the case be placed before the Hon'ble High Court, Jabalpur for confirmation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. The evidence on record clearly establishes that the accused was close to the family of Ramlal and the victim trusted him. She, therefore, on his asking immediately rushed to buy "bidi" for him from a kirana shop. The accused then followed the victim with a premeditated mind to commit the crime. The accused, taking advantage of the trust of victim, after kidnapping and subjecting her to brutal rape and carnal sex most gruesomely throttled her to death. The numerous injuries on the body of victim testify this fact. He even dumped the body of victim in the field. Earlier also, the accused was convicted vide judgment dated 21.10.2010, Ex.49, for committing carnal sex with a small boy. Thus, an innocent hapless girl of nine years was subjected to a barbaric treatment showing extreme depravity and arouses a sense of revulsion in the mind of a common man. We feel that the crime committed satisfies the test of "rarest of rare" cases. We, therefore, uphold the death sentence and also other sentences imposed by the trial court." 3. During the pendency of these appeals in this Court, it was observed by this Court in its Order dated 12.12.2018 as under:- "One of the issues that ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is deferred." 5. The consideration at present is thus confined to the issue as stated above. 6. In support of his submissions, Mr. Sidharth Luthra, learned Senior Advocate, relied upon certain decisions of this court and, particularly, in Bashira vs. State of U.P. (1969) 1 SCR 32 : AIR 1968 SC 1313 and Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi) (2012) 9 SCC 408. Mr. Varun Chopra, Deputy Advocate General appearing for the State, however, submitted that the evidence on record, without any doubt, pointed towards the guilt of the accused and as such the order of conviction recorded by the Courts below was correct and did not call for any interference. 7. In Bashira (1969) 1 SCR 32 : AIR 1968 SC 1313, the Trial Court had fixed 28th February, 1967 as the date for starting the actual trial and, on that very day, before beginning the trial, an Amicus Curiae was appointed to represent the accused. On that very day, the Trial Court amended the charge to which the accused pleaded not guilty and two principal prosecution witnesses were examined. The other witnesses were examined on 1st March, 1967 and the accused was also examined under Section 342 of the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by granting him time which the court considered sufficient in the particular circumstances of the case. In this case, the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that, in fact, if any time at all was granted, it was nominal. In these circumstances, it must be held that there was no compliance with the requirements of this Rule. 9. In this connection, we may refer to the decisions of two of the High Courts where a similar situation arose. In Re: Alla Nageswara Rao, Petitioner AIR 1957 AP 505 reference was made to Rule 228 of the Madras Criminal Rules of Practice which provided for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could be passed. It was held by Subba Rao, Chief Justice as he then was, speaking for the Bench, that: "a mere formal compliance with this Rule will not carry out the object underlying the Rule. A sufficient time should be given to the advocate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter complying with the requirements of law, so that the case is remanded to the Court of Session for this purpose." 8. In Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 it was observed as under: "7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows: "39-A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." (emphasis added) This article also emphasises that free legal service is an unalienable element of "reasonable, fair and just" procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of "reasonable, fair and just", procedure for a person accused of an offence and it must be held implicit in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the authority concerned is satisfied that such person has a prima facie case to prosecute or defend. 11. It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, an eligible person is entitled to legal services at any stage of the proceedings which he or she is prosecuting or defending. In fact the Supreme Court Legal Services Committee provides legal assistance to eligible persons in this Court. This makes it abundantly clear that legal services shall be provided to an eligible person at all stages of the proceedings, trial as well as appellate. It is also important to note that in view of the constitutional mandate of Article 39-A, legal services or legal aid is provided to an eligible person free of cost. Decisions of this Court 12. Pending the enactment of the Legal Services Authorities Act, the issue of providing free legal services or free legal aid or free legal representation (all terms being u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution]". 16. Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held that there was a violation of the fundamental right of the accused under Article 21 of the Constitution. The trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside. 17. We propose to briefly digress and advert to certain observations made, both in Khatri (2)8 and Suk Das9 In both cases, this Court carved out some exceptions in respect of grant of free legal aid to an accused person. It was observed that: (SCC p. 632, para 6) "6. ... 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." We have some reservations whether s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Criminal Procedure Code, 1898 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced; the trial of the three cases against the appellant was vitiated and the orders of conviction and sentence were rendered invalid. The Court, accordingly, set aside the orders of conviction and sentence. While dealing with the question as to what final order should be passed in the appeals, the Constitution Bench held as under: (AIR pp. 619-20, para 29) "29. ... The offences with which the appellant stands charged are of a very serious nature; and though it is true that he has had to undergo the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. It was from the order of remand for retrial that the matter reached this Court. This Court while setting aside the order of remand in para 3 of the Report held as under: (SCC pp. 655-56) "3. After going through the judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 42 of the Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94) 3 SCC 569, it was stated by this Court that no doubt liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution. In that case, the Court was dealing with a case under the TADA Act." It was thus held that the impugned judgment was required to be reversed and the matter was to be remanded for fresh trial. C.K. Prasad, J. concurred with H.L. Dattu, J. and accepted that the Judgments of conviction and sentence be set aside as the appellant-accused was not given assistance of a lawyer to defend himself during trial. However, in his view, the case was not required to be remanded for fresh trial and the benefit of complete acquittal be given to the appellant-accused. On this difference of opinion, the matter went to a Bench of three Judges which accepted the view taken by H.L. Dattu, J. and directed de novo trial. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion can be formulated." 40. "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to urge in defence to the appeals filed by the State for enhancement." This Court, therefore, recalled the Judgment and order dated 30.04.2009 and the Criminal Appeals were restored to the file of this Court to be considered on merits. Subsequently, a Bench of three Judges by its decision dated 05.03.2019 (2019 SCC Online SC 317 - Ankush Maruti Shinde and others vs. State of Maharashtra) acquitted the concerned accused of the charges levelled against them. This Court also dismissed the appeals preferred by the State for enhancement of sentence qua accused Nos.3, 5 and 6. 12. In Imtiyaz Ramzan Khan vs. State of Maharashtra (2018) 9 SCC 160 it was observed by this Court:- "4. We now come to the common feature between these two matters. Mr. Shikhil Suri, learned advocate appeared for the accused in both the matters. On previous dates letters were circulated by the learned advocate appearing for the petitioners that the matters be adjourned so as to enable the counsel to make arrangements for conducting videoconferencing with the accused concerned. The letter further stated that this exercise was made mandatory as per the directions of the Supreme Court Legal Services Committee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnicalities and must be conducted in such manner as will protect the innocent and punish the guilty. c) Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira2 put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defense was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law. d) The portion quoted in Bashira2 from the judgment of the Madras High Court authored by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defense would not carry out the object underlying the rule. It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare. e) In Bashira2 as well as in Ambadas21, making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance of 'sufficient opportunity' to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal definitely left glaring gaps. 17. In V.K. Sasikala vs. State Represented by Superintendent of Police ((2012) 9 SCC 771) a caution was expressed by this Court as under:- "23.4 While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the wellentrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time." 18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be appointed as Amicus Curiae or through legal services to represent an accused. ii) In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae. iii) Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate. iv) Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned accused. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan (2018) 9 SCC 160. 23. In the end, we express our appreciation and gratitude for the assistance given by Mr. Luthra, the learned Amicus Curiae and request him to assist this Court for deciding other issues as noted in the Orders dated 12.12.2018 and 10.12.2019 passed by this Court, for which purpose these matters be listed on 18.02.2020 before the appropriate Bench. 24. With ..... X X X X Extracts X X X X X X X X Extracts X X X X
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