Mohd. Hussain @ Julfikar Ali vs The State (Govt. Of Nct) Delhi

Mohd. Hussain @ Julfikar Ali .............. Appellant

versus

The State (Govt. of NCT) Delhi .................Respondent

J U D G M E N T

H. L. Dattu, J.

1) A 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.

1

2) The 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 &

52) 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

sealed.

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

2

started. 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 appellant'). 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

3

his hand at that time but could not succeed and was

apprehended. His pistol was seized. 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 his photographs.

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

4

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

3 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 be tried."

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

5

High 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.

6

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."

7

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 re-trial. "

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, that

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.

8

6) To answer the aforesaid issue, it is necessary to look at the

proceedings of the Trial Court which are as under:

"6.7.98

Pr: APP

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 aid.

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 scrutiny..

Sd/-

MM/Delhi

20/7/98

Pr: APP

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)______.

Allowed.

Put up on 29/7/98 for scrutiny.

Sd./-

MM/Delhi

20.7.98

29/7/98

9

Pr: APP

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.

Sd./-

MM/Delhi

29.7.98

6.8.98

Pr: APP

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 alongwith 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 of Sessions.

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

10

18/5/99

Pr: 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.

To come up for remaining evidence on 3/6/99.

Sd./-

ASJ/Delhi

18/5/99

3/6/99

Pr: Spl. PP for the State.

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. Sd/-

ASJ/Delhi

3/6/99

11

20.7.99

Pr: Spl PP for the State

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.

Sd./-

ASJ

20.7.99

13.8.99

Present : Spl. PP for the State

Accused in j/c

PW1, 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.

Sd./-

ASJ/Delhi

12

4/10/99

Pr: Spl. PP for the State.

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.

Sd./-

ASJ/Delhi

4/11/99 (sic.)

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.

Sd./-

ASJ/Delhi

13

27/7/2000

Pr: Addl. PP for the State.

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.

Sd./-

ASJ/Delhi

20/9/2000

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.

Sd./-

ASJ/Delhi

29.11.2000

Present: Addl. PP for the State.

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/-.

14

Entire remaining witnesses be summoned through IO on

10.1.2001.

Sd./-

ASJ/Delhi

10.1.2001

Present: Spl PP for State.

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.

Sd./-

ASJ/Delhi

14/2/2001

Pr: Addl. PP for the State.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.

Sd./-

ASJ/Delhi

14.3.2001

Present: Spl. PP for the State.

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.

Sd./-

ASJ/Delhi

15

11.4.2001

Present: Sp. PP for the State.

Accused in J/C.

PW-28 examined, cross-examined and discharged.

Witnesses Sunil 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 R.P.E.

Now to come up for (sic.) 8.5.2001.

Sd./-

ASJ/Delhi

4/7/2001

Pr. Spl. PP for the State.

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.

Sd./-

ASJ/Delhi

11.2.2002

Present: Addl. PP for the State.

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.

Sd./-

ASJ/Delhi

26/3/02

Pr: Addl. PP for the State.

Accused in J/C.

16

PW.34, 35, 36 & 37 examined, cross-examined and

discharged.

No other PW. is present.

Now to come up for RPE on 7/5/02.

Sd./-

ASJ/Delhi

24/09/02

Present: Spl. PP for the State.

Accused in J/C.

PW-42 & PW-43 examined, cross-examined and

discharged.

No other PW is present.

Now to come up for entire R.P.E. on 18.10.02.

Sd./-

ASJ/Delhi

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/Delhi

13.12.02

Present: Accused in judicial custody.

Ld. ______ is on leave today.

Illigible__

17/1/2003 for RPE.

Sd./-

Reader

13.12.02

17

25/02/03

Pr: Sh. Bakshish Singh, Spl. PP for State.

Accused in J/C with counsel.

Two PWs. 46 & 47 have been examined, cross-examined

and discharged.

No other witness is present.

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 26.03.03.

Sd./-

ASJ/Delhi

26/3/2003

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.

ASJ/Delhi

22.4.03

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

18

09/05/03

Present Sh. Bakshish Singh Spl. PP for the state

Accused in JC

PW-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 on 15/07/03.

ASJ/Delhi

09/05/03

1102/97

15.07.03

Present : 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.

ASJ/Delhi

15.07.03

01/09/03

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.

ASJ/Delhi

01/10/03

7) 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 x

deferred as defence counsel is not available.

PW2

Vijay Kumar

s/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 x

Nil opportunity given.

PW3

Moin Khan

S/o Abdul Rashid Khan, Age - 22 years, service, R/o B-

104, Prem Nagar, Kirari Village, Delhi.

x x x x x x

by counsel Firoz Khan.

PW4

Imtiyaz Khan

S/o Rustam Khan, Age - 25 years, Machine Operator,

R/o H-10, Man Sarover Park, Riti Road, Shahdrah.

x x x x x x

Nil Opportunity given."

21

8). 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 the State. 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

22

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

23

not to cross-examine any of those witnesses. 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 of trial. 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

adversary party;

(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 granted. 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

26

in 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 non grata. 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 resulted. 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. This unfortunate situation cries aloud

for introduction of an adequate and comprehensive

30

legal 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

31

just" 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

33

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

34

declaration 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

custody. 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

35

produced 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 right. 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

38

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.

39

(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 is observed:

"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

40

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 trial;

(c) Presumption of innocence (not guilty);

(d) Prosecution must prove its case beyond reasonable doubt.

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 adjudication."

(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

42

as 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 Court.

................................................J.

[H.L. DATTU]

New Delhi,

January 11, 2012.

43

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1091 OF 2006

Mohd. Hussain @ Julfikar Ali ... Appellant

Versus

The State (Govt. of NCT) Delhi ... Respondent

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. I 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.

45

2. Facts 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 sentence.

3. This is how the appellant is before us with the

leave of the Court. He challenges his conviction and

46

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.

4. According 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.

5. A 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

47

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

innocent citizens. This information 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

48

identification parade for which the appellant did not

object in the beginning but later on refused to join

in the test identification parade.

6. After 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,

49

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 charge.

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 discharged. 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

50

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 cross-examination.

7. It 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-

51

ASI Mahender Singh were recorded. Thereafter, the

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

52

prayed 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.

8. While 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.

53

Poverty also came in his way to engage a counsel of

his choice.

9. Having 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.

10. Article 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 undue delay;

(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

55

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 payment.

11. Not 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.

56 Article 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:

"(1) Everyone 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."

12. These 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.

57 Article 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.

13. Besides 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.

58

(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 of Session."

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.

59

14. In 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

60

trained 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.

15. Bearing 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

61

guilty. 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. Fundamental

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

62

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:

"6. ..............................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............."

16. Having 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

63

him 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 of law. 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.

64

17. 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.

18. 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.

19. In the result the appeal is allowed, appellant's

conviction and sentence is set aside with the

direction aforesaid.

...................................................................J. (CHANDRAMAULI KR PRASAD)

New Delhi, January 11, 2012.