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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 ..... ne affair, the right under the said provisions stood denied to the appellant. The Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Advocate, however, did not appear on 19.02.2013 when the case was taken up, and as such another learned Advocate came to be appointed through Legal Aid Services to represent the appellant. Such appointment was done on 19.02.2013 and on the same day the charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012. (E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution witnesses were examined. (F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court were :- "(i) 27.02.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution filed application together with letter of District Prosecution Officer and with copy of warrant etc documents. Copies are supplied. The defense has no objection in taking above documents on record, hence considering the reasons of as explained for delay the application is liable to be accepted and above d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of final arguments started which remained incomplete. Put up on 02.03.2013 for placing on record DNA report and rest of final arguments. Sd/- Sessions Judge Khandwa (iv) 02.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The accused is being tried under Section 9 of Protection of Children from Sexual Offences Act, 2012 and according to Provisions of Section 5 (f) of above Act, the situation of previous conviction for the sexual offence under Section 377 IPC is also clear and above fact has found mention in charge No.8 framed in earlier with intention that despite being previously convicted for sexual offence under Section 377 IPC but in above charge date time and place etc is not mentioned regarding conviction according to provisions of Section 211 (7) Cr.P.C. Hence, as is provided under Section 211 (7) Cr.P.C. the Court before passing order of conviction may add statement of fact, date and place of conviction, hence in this regard both the parties were heard. In earlier the copy of judgment of previous conviction was not filed due to which date, place etc were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her evidence as such closed its evidence. The packet of article so filed is in sealed condition, which was opened in presence of both the parties. After evidence let same be deposited in malkhana by duly sealing with memo of property. In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on entering in defense, the accused stated not to adduce any evidence in defense nor any written statement was filed under Section 232(2) Cr.P.C. and as such defense closed its evidence. Put up again for final arguments. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa Again State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, Advocate present on his behalf. Heard final arguments. Put up on 04.03.2013 for judgment. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, khandwa (v) 4.3.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, advocate present on his behalf. The judgment pronounced and signed separatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 penalty as per provisions of Section 366 Cr.P.C. Sd/- Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa (G) In its judgment and order dated 4.3.2013, the Trial Court accepted the case of the prosecution and stated:- "65. From above analysis it is clear that present case having similar facts like judicial citation of Rajendra Prahladrao Vasnic is in the category of 'rarest of rare' case and excess to that in the present case accused is previous convict in sexual offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 death sentence and death sentence be not executed till it is confirmed by the Hon'ble Madhya Pradesh High Court and for keeping accused in custody in above period let he be handed over with warrant in above regard for jail custody. 70. I appreciate for assistance of all where in regard to incident which happened in mid night of 30-31 January, after arrest of accused on 04.02.2013, completing investigation immediately charge-sheet was submitted on 18th February and to prosecution which ensured quick trial by placing entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tim 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 has arisen in the present case is compliance with the statutory timeframe fixed by proviso to Section 309(1)of the Cr.P.C.(as amended in 2018). That Section provides a time limit of 60 days within which the trial is supposed to be completed. In this context, we consider it appropriate to explore the possibility of using video-conferencing for the purpose of recording evidence since it is believed that such use will eliminate the time taken for summoning the witnesses to Court. However, an apprehensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 of Criminal Procedure, 1898 (equivalent to Section 313 of the Code of Criminal Procedure, 1973 or "the Code", for short). The case was thereafter fixed on 10th March, 1967 for arguments, on which date the Amicus Curiae presented an application for recall of one of the prosecution witnesses for further crossexamination. The application was rejected. Arguments were then heard on the same day and the judgment was delivered on 13th March, 1967 convicting the accused for the offence under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Thommen v. State AIR 1959 Kerala 241 the Kerala High Court was dealing with a Sessions trial in which the counsel was engaged to defend the accused on 2nd August, 1958, when the trial was posted to begin on 4th August, 1958, showing that barely more than a day was allowed to the couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity, 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 the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a 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. ……." 9. The developments in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 understood as synonymous) came up for consideration before this Court. 13. Among the first few decisions in this regard is Hussainara Khatoon (4) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98. In that case, reference was made to Article 39-A of the Constitution and it was held that (SCC p. 105, para 7) free legal service is an inalienable element of "'reasonable, fair and just', procedure for a person accused of an offence and it must be held implicit in the guarantee of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 such exceptions can be carved out particularly keeping in mind the constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty. If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism, thereby diluting the constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution. However, we need not say anything more on this subject since the issue is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the appellant hereafter should be commenced without delay and should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process." 24. The Constitution Bench of this Court in Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 considered right of an accused to speedy trial in light of Article 21 of the Constitution and various provisions of the Code. The Constitution Bench also extensively referred to the earlier decisions of this Court in Hussainara Khatoon (1) v. State of Bihar (1980) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 observed3:- "15. Section 304 of the Code mandates legal aid to the accused at State's expense in a trial before the Court of Session where 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. … … … 38. In Best Bakery case Zahira Habibulla H. Sheikh vs. State of Gujarat - (2004) 4 SCC 158 , the Court also made the following observations: (SCC p. 187, paras 38-40) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered." 11. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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. This Court readily agreed (2018) 9 SCC 163 - Imtiyaz Ramzan Khan vs. State of Maharashtra) and adjourned the matters. On the adjourned date, we enquired from Mr. Shikhil Suri, learned advocate whether he could successfully get in touch with the accused concerned. According to the learned advocate he could not get in touch with the accused in the first matter but could speak with his sister whereas in the second matter he could have video conference with the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 the counsel. 14. In the present case, the Amicus Curiae, was appointed on 19.02.2013, and on the same date, the counsel was called upon to defend the accused at the stage of framing of charges. One can say with certainty that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, 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 core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice. 19. In the circumstances, going by the principles laid down in Bashira ((1969) 1 SCR 32 : AIR 1968 SC 1313), we accept the submission made by Mr. Luthra, the learned Amicus Curiae and hold that the learned counsel appointed through Legal Services to represent the appellant in the present case ought to have been afforded suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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