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Accused right to have a lawyer – whether the appellant was denied due process of law and whether the conduct of trial was contrary to the procedure prescribed under the provisions of the Code and, in particular, that he was not given a fair and impartial trial and was denied the right of the counsel before discussing the merits of the appeal. whether the matter requires to be remanded for a de novo trial in accordance with law or not? = Gravity of the offences and the criminality with which the appellant is charged are important factors that need to be kept in mind, though it is a fact that in the first instance the accused has been denied due process. While having due consideration to the appellant’s right, the nature of the offence and its gravity, the impact of crime on the society, more particularly the crime that has shaken the public and resulted in death of four persons in a public transport bus can not be ignored and overlooked. It is desirable that punishment should follow offence as closely as possible. In an extremely serious criminal case of the exceptional nature like the present one, it would occasion in failure of justice if the prosecution is not taken to the logical conclusion. Justice is supreme. The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative that justice is secured after providing the appellant with the legal practitioner if he does not engage a lawyer of his choice. – the matter requires to be remanded for a de novo trial. The Additional Sessions Judge shall proceed with the trial of the appellant in Sessions Case No. 122 of 1998 from the stage of prosecution evidence and shall further ensure that the trial is concluded as expeditiously as may be possible and in no case later than three months from the date of communication of this order.

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

 

JUDGMENT

R.M. Lodha, J.

 

 

We are called upon to decide in this appeal the issue on
reference by a two-Judge Bench, whether the matter requires to be remanded
for a de novo trial in accordance with law or not?

2. The above question arises in this way. On 30.12.1997 at about
6.20 p.m. one Blueline Bus No. DL-1P-3088 carrying passengers on its route
to Nangloi from Ajmeri Gate stopped at Rampura Bus Stand at Rohtak Road for
passengers to disembark. The moment the bus stopped, an explosion took
place inside the bus. The incident resulted in death of four persons and
injury to twenty-four persons. The FIR of the incident was registered and
investigation into the crime commenced. On completion of investigation,
the police filed a charge-sheet against four accused persons – one of them
being the present appellant, a national of Pakistan – for the commission
of offences under Sections 302/307/120-B of Indian Penal Code (for short,
‘IPC’) and Sections 3 and 4 of the Explosive Substances Act, 1908 (for
short, ‘ES Act’ ). The appellant and the other three accused were committed
to the Court of Session by the concerned Magistrate. The three accused
other than the appellant were discharged by the Additional Sessions Judge,
Delhi. The appellant was charged under Sections 302/307 IPC and Section 3
and, in the alternative, under Section 4(b) of the ES Act.

3. The appellant pleaded not guilty to the charges framed against
him and claimed to be tried.

4. Sixty-five witnesses were examined by the prosecution. On
conclusion of the prosecution evidence, the statement of the appellant
under Section 313 of the Code of Criminal Procedure, 1973 (for short,
‘Code’) was recorded. The Additional Sessions Judge vide his judgment
dated 26.10.2004 held that the prosecution had been successful in proving
beyond reasonable doubt that the appellant had planted a bomb in Bus No. DL-
1P-3088 on 30.12.1997 with intention to cause death and the bomb exploded
in which four persons died and twenty-four persons sustained injuries. The
Additional Sessions Judge found the appellant guilty and convicted him
under Sections 302/307 IPC read with Section 3 of the ES Act. On the point
of sentence, the matter was kept for 3.11.2004. On that date, after hearing
the additional public prosecutor and the defence counsel, the Additional
Sessions Judge awarded death sentence to the appellant under Section 302
IPC and also awarded to him imprisonment for life for the offences under
Section 307 IPC and Section 3 of the ES Act. Fine and default sentence
were also ordered and it was directed that sentence of death shall not be
executed unless the same was confirmed by the High Court.

5. Aggrieved by his conviction and sentence, the appellant
preferred an appeal before the Delhi High Court. The reference was also
made to the Delhi High Court for confirmation of death sentence. The death
reference and the criminal appeal were heard together by the Delhi High
Court. Vide judgment dated 4.8.2006, the Division Bench of Delhi High Court
confirmed the death sentence imposed on the appellant under Section 302
IPC. The other sentences imposed on the appellant were also maintained.

6. It is from the judgment of the Delhi High Court dated 4.8.2006
that the appellant preferred the present appeal before this Court.

7. The criminal appeal came up for hearing before the Bench of
H.L. Dattu and C.K. Prasad, JJ. In his judgment, H.L. Dattu, J. thought it
fit to deal with the issue whether the appellant was denied due process of
law and whether the conduct of trial was contrary to the procedure
prescribed under the provisions of the Code and, in particular, that he was
not given a fair and impartial trial and was denied the right of the
counsel before discussing the merits of the appeal. The proceedings of the
trial court were then noticed and discussed elaborately. H.L. Dattu, J.
observed as follows:

 
“In the present case, not only was the accused denied the
assistance of a counsel during the trial but 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 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 CrPC.

 
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 be simply
to ignore actualities and also would be to ignore the
fundamental postulates, already adverted to.”

 

8. H.L. Dattu, J. recorded his conclusions thus:

“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.

 
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 3-11-2004 and the
judgment and order passed by the High Court in State v. Mohd.
Hussain dated 4-8-2006 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 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.”

 

9. C.K. Prasad, J. concurred with the view of H.L. Dattu, J. that
the conviction and sentence of the appellant deserved to be set aside as he
was not given the assistance of a lawyer to defend himself during trial.
C.K. Prasad, J., however, was not persuaded to remand the matter to the
trial court for fresh trial of the appellant for the following reasons:

“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 him was framed on 18-2-1999 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 the 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.

 
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.

 
The 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.”

 

10. We have heard Mr. Md. Mobin Akhtar, learned counsel for the
appellant and Mr. P.P. Malhotra, learned Additional Solicitor General for
the respondent.

11. Article 21 of the Constitution provides that no person shall be
deprived of his life or personal liberty except according to procedure
established by law. Speedy justice and fair trial to a person accused of a
crime are integral part of Article 21; these are imperatives of the
dispensation of justice. In every criminal trial, the procedure
prescribed in the Code has to be followed, the laws of evidence have to be
adhered to and an effective opportunity to the accused to defend himself
must be given. If an accused remains unrepresented by a lawyer, the trial
court has a duty to ensure that he is provided with proper legal aid.

12. Article 22(1) of the Constitution provides that no person who
is arrested shall be detained in custody without being informed of the
grounds for such arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.

13. Article 39A of the Constitution, inter-alia, articulates the
policy that the State shall provide free legal aid by a suitable
legislation or schemes to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other disabilities.

14. Section 303 of the Code confers a right upon any person accused
of an offence before a criminal court to be defended by a pleader of his
choice.

15. Section 304 of the Code mandates legal aid to 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.

16. The two-Judge Bench that heard the criminal appeal, was
unanimous that the appellant was denied the assistance of a counsel in
substantial and meaningful manner in the course of trial although
necessity of counsel was vital and imperative and that resulted in denial
of due process of law. In their separate judgments, the learned Judges
agreed that the appellant has been put to prejudice rendering the impugned
judgments unsustainable in law. They, however, differed on the course to
be adopted after it was held that the conviction and sentence awarded to
the appellant by the trial court and confirmed by the High Court were
vitiated. As noted above, H.L. Dattu, J. ordered the matter to be remanded
to the trial court for fresh disposal in accordance with law after
providing to the appellant the assistance of the counsel before the
commencement of the trial till its conclusion if the accused was unable to
engage a counsel of his own choice. On the other hand, C.K. Prasad, J. for
the reasons indicated by him held that the incident occurred in 1997;
the appellant was awarded the sentence of death more than seven years ago
and at such distance of time it shall be travesty of justice to direct for
the appellant’s de novo trial.

17. Section 386 of the Code sets out the powers of the appellate
court. To the extent it is relevant, it reads as under :

“S. 386. Powers of the Appellate Court.—After perusing such
record and hearing the appellant or his pleader, if he appears,
and the Public Prosecutor, if he appears, and in case of an
appeal under section 377 or section 378, the accused if he
appears, the Appellate Court may, if it considers that there is
no sufficient ground for interfering, dismiss the appeal, or
may—

 
(a) xxx xxx xxx

 
(b) in an appeal from a conviction—

 
i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-
tried by a Court of competent jurisdiction
subordinate to such Appellate Court or
committed for trial, or

 

xxx xxx xxx”

 

18. Section 311 of the Code empowers a criminal court to summon any
person as a witness though not summoned as a witness or recall and re-
examine any person already examined at any stage of any enquiry, trial or
other proceeding and the court shall summon and examine or recall and re-
examine any such person if his evidence appears to be essential to the just
decision of the case.

19. If the appellate court in an appeal from a conviction under
Section 386 orders the accused to be re-tried, on the matter being remanded
to the trial court and on re-trial of the accused, such trial court retains
the power under Section 311 of the Code unless ordered otherwise by the
appellate court.

20. In Machander v. State of Hyderabad[1], it has been stated by
this Court that while it is incumbent on the court to see that no guilty
person escapes but the court also has to see that justice is not delayed
and the accused persons are not indefinitely harassed. The court further
stated that the scale must be held even between the prosecution and the
accused.

21. In Gopi Chand v. Delhi Administration[2], a Constitution Bench
of this Court was concerned with the criminal appeals wherein plea of the
validity of the trial and of the orders of conviction and sentence was
raised by the appellant. That was a case where the appellant was charged
for three offences which were required to be tried as a warrant case by
following the procedure prescribed in the Criminal Procedure Code, 1860 but
he was tried under the procedure prescribed for the trial of a summons
case. The procedure for summons case and warrants case was materially
different. The Constitution Bench held that having regard to the nature of
the charges framed and the character and volume of evidence led, the
appellant was prejudiced; the trial of the three cases against the
appellant was vitiated and the orders of conviction and sentence were
rendered invalid. The Court, accordingly, set aside the orders of
conviction and sentence. While dealing with the question as to what final
order should be passed in the appeals, the Constitution Bench held as
under:

“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 disposed as expeditiously as possible.”

 

 

 

22. A two-Judge Bench of this Court in Tyron Nazareth v. State of
Goa[3], after holding that the conviction of the appellant was vitiated as
he was not provided with legal aid in the course of trial, ordered retrial.
The brief order reads as follows:

“2. We have heard the learned counsel for the State. We have
also perused the decisions of this Court in Khatri (II) v. State
of Bihar [(1981) 1 SCC 627] and Sukh Das v. Union Territory of
Arunachal Pradesh [(1986) 2 SCC 401]. We find that the appellant
was not assisted by any lawyer and perhaps he was not aware of
the fact that the minimum sentence provided under the statute
was 10 years’ rigorous imprisonment and a fine of Rs 1 lakh. We
are, therefore, of the opinion that in the circumstances the
matter should go back to the tribunal. The appellant if not
represented by a lawyer may make a request to the court to
provide him with a lawyer under Section 304 of the Criminal
Procedure Code or under any other legal aid scheme and the court
may proceed with the trial afresh after recording a plea on the
charges. The appeal is allowed accordingly. The order of
conviction and sentence passed by the Special Court and
confirmed by the High Court are set aside and a de novo trial is
ordered hereby.”

 

23. This Court in S. Guin & Ors. v. Grindlays Bank Ltd.[4] was
concerned with the case where the trial court acquitted the appellants of
the offence punishable under Section 341 of the IPC read with Section 36-AD
of Banking Regulation Act, 1949. The charge against the appellants was that
they had obstructed the officers of the bank, without reasonable cause,
from entering the premises of a branch of the bank and also obstructed the
transaction of normal banking business. Against their acquittal, an appeal
was preferred before the High Court which allowed it after a period of six
years and remanded the case for retrial. It was from the order of remand
for re-trial that the matter reached this Court. This Court while setting
aside the order of remand in paragraph 3 of the Report held as under :

“3. After going through the judgment of the magistrate and of
the High Court we feel that whatever might have been the error
committed by the Magistrate, in the circumstances of the case,
it was not just and proper for the High Court to have remanded
the case for fresh trial, when the order of acquittal had been
passed nearly six years before the judgment of the High Court.
The pendency of the criminal appeal for six years before the
High Court is itself a regrettable feature of this case. In
addition to it, the order directing retrial has resulted in
serious prejudice to the appellants. We are of the view that
having regard to the nature of the acts alleged to have been
committed by the appellants and other attendant circumstances,
this was a case in which the High Court should have directed the
dropping of the proceedings in exercise of its inherent powers
under Section 482, 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
and others v. R.S. Nayak and another[5] 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 and others (I)
v. Home Secretary, State of Bihar[6], Hussainara Khatoon and others (III)
v. Home Secretary, State of Bihar,Patna[7], Hussainara Khatoon and others
(IV) v. Home Secretary, State of Bihar,Patna[8] and Raghubir Singh &
others v. State of Bihar[9] and noted that the provisions of the Code are
consistent with the constitutional guarantee of speedy trial emanating
from Article 21. In paragraph 86 of the Report, the Court framed
guidelines. Sub-paragraphs (9) and (10) thereof read as under :

 

“86(9). Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has been
infringed the charges or the conviction, as the case may be,
shall be quashed. But this is not the only course open. The
nature of the offence and other circumstances in a given case
may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to
make such other appropriate order — including an order to
conclude the trial within a fixed time where the trial is not
concluded or reducing the sentence where the trial has concluded
— as may be deemed just and equitable in the circumstances of
the case.

 
(10). It is neither advisable nor practicable to fix any time-
limit for trial of offences. Any such rule is bound to be
qualified one. Such rule cannot also be evolved merely to shift
the burden of proving justification on to the shoulders of the
prosecution. In every case of complaint of denial of right to
speedy trial, it is primarily for the prosecution to justify and
explain the delay. At the same time, it is the duty of the court
to weigh all the circumstances of a given case before
pronouncing upon the complaint. The Supreme Court of USA too has
repeatedly refused to fix any such outer time-limit in spite of
the Sixth Amendment. Nor do we think that not fixing any such
outer limit ineffectuates the guarantee of right to speedy
trial.”

 

 

 

 

25. In Kartar Singh v. State of Punjab[10], it was stated by this
Court that no doubt liberty of a citizen must be zealously safeguarded by
the courts but nonetheless the courts while dispensing justice should keep
in mind not only the liberty of the accused but also the interest of the
victim and their near and dear and above all the collective interest of the
community and the safety of the nation so that the public may not lose
faith in the system of judicial administration and indulge in private
retribution. In that case, the Court was dealing with a case under the
TADA Act.

26. In State of Punjab v. Ajaib Singh[11], a two-Judge Bench of
this Court was concerned with the question whether the order of acquittal
passed by the High Court of Punjab and Haryana was liable to interference
under Article 136 of the Constitution. That was a case where the respondent
was tried along with other two accused persons for the offences under
Section 302 IPC and Section 27 of the Arms Act. While one of the accused
was acquitted and the other was convicted for a smaller offence and given
probation, insofar as respondent was concerned, he was convicted under
Section 302 IPC and sentenced to undergo life imprisonment. He was also
convicted under Section 27 of the Arms Act and given two years’ rigorous
imprisonment. The High Court held that the act of the respondent was
covered within clauses first and secondly in Section 100 of the IPC and,
therefore, he was entitled to acquittal. While maintaining the order of
acquittal the Court did notice the time lag of more than 18 years from the
date of incident and nearly 15 years from the date of acquittal and
hearing.

27. In Hussainara Khatoon and others (VII) v. Home Secretary,
Bihar & Others.[12], a three-Judge Bench of this Court while dealing with
the rights of under-trial prisoners observed that sympathy for the under-
trials who were in jail for long terms on account of pendency of cases had
to be balanced having regard to the impact of crime on society and the fact
situation.

28. Phoolan Devi v. State of M.P. and others[13], was concerned
with the release of the petitioner on the ground that her right to speedy
trial had been violated and her continued custody was without any lawful
authority. The Court observed that by lapse of several years since the
commencement of prosecution, it cannot be said that for that reason alone
the continuance of prosecution would violate the petitioner’s right to
speedy trial.

29. In Raj Deo Sharma (I) v. State of Bihar[14], the matter reached
this Court at the instance of an accused charged with offences under
Sections 5(2) and 5(1)(e) of the Prevention of Corruption Act, 1947. He was
aggrieved by the order of the High Court whereby his prayer for quashing
the prosecution against him on the ground of violation of right to speedy
trial was rejected. In that case, a three-Judge Bench of this Court
issued certain directions supplemental to the propositions laid down in
Abdul Rehman Antulay5. Raj Deo Sharma (I)14 came up for consideration once
again in Raj Deo Sharma (II) v. State of Bihar[15]. In his dissenting
judgment, M.B. Shah, J. held that prescribing time-limit would be against
the decisions rendered in Abdul Rehman Antulay5 and Kartar Singh10.

30. In State of M.P. v. Bhooraji and others[16], this Court was
concerned with the question whether retrial was inevitable although the
trial proceedings in the case had already undergone over a period of nine
years. That was a case where the incident happened on 26.8.1991 in which
one person was murdered and three others were wounded. Eleven persons were
charge-sheeted by the police in respect of the said incident for various
offences including Section 302 read with Section 149 IPC and Section 3(2)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (‘SC/ST Act’). The Additional Sessions Judge, Dhar (M.P.)
(Specified Court) on conclusion of trial that took about five years
convicted all the eleven accused persons under Sections 148, 323, 302/149
IPC and sentenced them to various punishments including imprisonment for
life. The convicted persons filed appeal before the High Court of Madhya
Pradesh. During the pendency of the appeal before the High Court, this
Court in a decision given in Gangula Ashok v. State of A.P. [(2000) 2 SCC
504] held that committal proceedings were necessary for a Specified Court
under the SC/ST Act to take cognizance of the offences to be tried. In
light of the decision of this Court in Gangula Ashok, the convicts made an
application before the High Court in the pending appeal seeking quashment
of the trial proceedings on the ground that the trial was without
jurisdiction inasmuch as the Specified Court of Session did not acquire
jurisdiction to take cognizance of and try the case, in the absence of it
being committed by a Magistrate. The Division Bench of the High Court
upheld the contention raised by the convicted persons and ordered the
quashment of the trial proceedings and the trial court was directed to
return the charge-sheet and the connected papers to the prosecution for
resubmission to the Magistrate for further proceedings in accordance with
law. It was against the judgment of the High Court that the State of
Madhya Pradesh came up in appeal by special leave.

31. While dealing with the question whether the High Court should
have quashed the trial proceedings only on account of declaration of the
legal position made by the Supreme Court concerning the procedural aspect
about the cases involving offences under the SC/ST Act, this Court stated,
“a de novo trial should be the last resort and that too only when such a
course becomes so desperately indispensable. It should be limited to the
extreme exigency to avert ‘a failure of justice’. Any omission or even the
illegality in the procedure which does not affect the core of the case is
not a ground for ordering a de novo trial”. The Court went on to say
further as follows :

 

“8……….This is because the appellate court has plenary powers for
revaluating and reappraising the evidence and even to take
additional evidence by the appellate court itself or to direct
such additional evidence to be collected by the trial court. But
to replay the whole laborious exercise after erasing the bulky
records relating to the earlier proceedings, by bringing down
all the persons to the court once again for repeating the whole
depositions would be a sheer waste of time, energy and costs
unless there is miscarriage of justice otherwise. Hence the said
course can be resorted to when it becomes unpreventable for the
purpose of averting “a failure of justice”. The superior court
which orders a de novo trial cannot afford to overlook the
realities and the serious impact on the pending cases in trial
courts which are crammed with dockets, and how much that order
would inflict hardship on many innocent persons who once took
all the trouble to reach the court and deposed their versions in
the very same case. To them and the public the re-enactment of
the whole labour might give the impression that law is more
pedantic than pragmatic. Law is not an instrument to be used for
inflicting sufferings on the people but for the process of
justice dispensation”.

 

32. In Bhooraji16, the Court referred to Chapter XXXV of the Code
and, particularly, Sections 461, 462 and 465(1). After noticing the
above provisions, the Court observed in paragraphs 15, 16 and 17 of the
Report as follows :

 

“15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedings held before or
during the trial or in any enquiry were reckoned by the
legislature as possible occurrences in criminal courts. Yet the
legislature disfavoured axing down the proceedings or to direct
repetition of the whole proceedings afresh. Hence, the
legislature imposed a prohibition that unless such error,
omission or irregularity has occasioned “a failure of justice”
the superior court shall not quash the proceedings merely on the
ground of such error, omission or irregularity.

 
16. What is meant by “a failure of justice” occasioned on
account of such error, omission or irregularity? This Court has
observed in Shamnsaheb M. Multtani v. State of Karnataka [(2001)
2 SCC 577] thus: (SCC p. 585, para 23)

 
“23. We often hear about ‘failure of justice’ and quite often
the submission in a criminal court is accentuated with the
said expression. Perhaps it is too pliable or facile an
expression which could be fitted in any situation of a case.
The expression ‘failure of justice’ would appear, sometimes,
as an etymological chameleon (the simile is borrowed from
Lord Diplock in Town Investments Ltd. v. Deptt. of the
Environment [(1977) 1 All ER 813]. The criminal court,
particularly the superior court should make a close
examination to ascertain whether there was really a failure
of justice or whether it is only a camouflage.”

 
17. It is an uphill task for the accused in this case to show
that failure of justice had in fact occasioned merely because
the specified Sessions Court took cognizance of the offences
without the case being committed to it. The normal and correct
procedure, of course, is that the case should have been
committed to the Special Court because that court being
essentially a Court of Session can take cognizance of any
offence only then. But if a specified Sessions Court, on the
basis of the legal position then felt to be correct on account
of a decision adopted by the High Court, had chosen to take
cognizance without a committal order, what is the disadvantage
of the accused in following the said course?”

 

 

33. Finally this Court concluded that High Court should have dealt
with the appeal on merits on the basis of the evidence already on record
and to facilitate the said course, the judgment of the High Court impugned
in the appeal was set aside and matter was sent back to the High Court for
disposal of the appeal afresh on merits in accordance with law.

34. P. Ramachandra Rao v. State of Karnataka[17] was concerned
with the appeals wherein the accused persons indicted of corruption
charges were acquitted by the special courts for failure of commencement of
trial in spite of lapse of two years from the date of framing of the
charges and the High Court allowed the State appeals without noticing the
respective accused persons. When the appeals came up for hearing before
the Bench of three-Judges, the matters were referred to a Constitution
Bench to consider whether time-limit of the nature mentioned in, “Common
Cause”, A Registered Society (I) v. Union of India and others[18], “Common
Cause”, A Registered Society (II) v. Union of India[19], Raj Deo Sharma
(I)14, and Raj Deo Sharma (II)15 can under the law be laid down? Before
the Bench of five-Judges, the earlier decision of this Court in Abdul
Rehman Antulay5 was brought to the notice along with the above referred
four cases. The five-Judge Bench, accordingly, referred the matter to a
Bench of seven-Judges. The Bench of seven-Judges considered the questions:
Is it at all necessary to have limitation bars terminating trials and
proceedings? Is there no effective mechanism available for achieving the
same end? In paragraph 23 (Pg. 600) of the Report, the Bench made the
following observations:

 

“23. Bars of limitation, judicially engrafted, are, no doubt,
meant to provide a solution to the aforementioned problems. But
a solution of this nature gives rise to greater problems like
scuttling a trial without adjudication, stultifying access to
justice and giving easy exit from the portals of justice. Such
general remedial measures cannot be said to be apt solutions.
For two reasons we hold such bars of limitation uncalled for and
impermissible: first, because it tantamounts to impermissible
legislation — an activity beyond the power which the
Constitution confers on the judiciary, and secondly, because
such bars of limitation fly in the face of law laid down by the
Constitution Bench in A.R. Antulay case and, therefore, run
counter to the doctrine of precedents and their binding
efficacy.”

 

35. In paragraph 29 (Pg. 603) of the Report, the seven-Judge Bench
held that the period of limitation for conclusion of trial of a criminal
case or criminal proceeding in “Common Cause” (I)18, “Common Cause” (II)19
, Raj Deo Sharma (I)14 , Raj Deo Sharma (II)15 could not have been
prescribed. The Bench concluded, inter alia, as follows :

 

“29. ……….

 
(1) The dictum in A.R. Antulay case is correct and still holds
the field.

 
(2) The propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial laid down
as guidelines in A.R. Antulay case adequately take care of right
to speedy trial. We uphold and reaffirm the said propositions.

 
(3) The guidelines laid down in A.R. Antulay case are not
exhaustive but only illustrative. They are not intended to
operate as hard-and-fast rules or to be applied like a
straitjacket formula. Their applicability would depend on the
fact situation of each case. It is difficult to foresee all
situations and no generalization can be made.

 
(4) It is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for conclusion
of all criminal proceedings. The time-limits or bars of
limitation prescribed in the several directions made in Common
Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not
have been so prescribed or drawn and are not good law. The
criminal courts are not obliged to terminate trial or criminal
proceedings merely on account of lapse of time, as prescribed by
the directions made in Common Cause case (I), Raj Deo Sharma
case (I) and (II). At the most the periods of time prescribed in
those decisions can be taken by the courts seized of the trial
or proceedings to act as reminders when they may be persuaded to
apply their judicial mind to the facts and circumstances of the
case before them and determine by taking into consideration the
several relevant factors as pointed out in A.R. Antulay case and
decide whether the trial or proceedings have become so
inordinately delayed as to be called oppressive and unwarranted.
Such time-limits cannot and will not by themselves be treated by
any court as a bar to further continuance of the trial or
proceedings and as mandatorily obliging the court to terminate
the same and acquit or discharge the accused.

 
(5) The criminal courts should exercise their available powers,
such as those under Sections 309, 311 and 258 of the Code of
Criminal Procedure to effectuate the right to speedy trial. A
watchful and diligent trial Judge can prove to be a better
protector of such right than any guidelines. In appropriate
cases, jurisdiction of the High Court under Section 482 CrPC and
Articles 226 and 227 of the Constitution can be invoked seeking
appropriate relief or suitable directions.

xxx xxx xxx”

 

 
36. A two-Judge Bench of this Court in Zahira Habibulla H. Sheikh
and another v. State of Gujarat and others[20], known as the “Best Bakery
Case”, extensively considered the jurisprudence of fair trial, powers of
the criminal court under the Code and the Evidence Act including retrial of
a criminal case. The Best Bakery Case was a case of mass killing. The
trial court directed acquittal of the accused persons. The State of Gujarat
preferred appeal against acquittal and a criminal revision was also filed
against acquittal by one of the affected persons. The Gujarat High Court
dismissed the criminal appeal and criminal revision upholding acquittal of
the accused by the trial court. The prayers for adducing additional
evidence under Section 391 of the Code and/or for directing retrial were
rejected. It is from this order of the Gujarat High Court that the matter
reached this Court. In paragraph 33 of the Report (Pg. 183), the Bench
observed as follows :

 

“33. The principle of fair trial now informs and energises many
areas of the law. It is reflected in numerous rules and
practices. It is a constant, ongoing development process
continually adapted to new and changing circumstances, and
exigencies of the situation – peculiar at times and related to
the nature of crime, persons involved – directly or operating
behind, social impact and societal needs and even so many
powerful balancing factors which may come in the way of
administration of criminal justice system.”

 

 
37. Then in paragraph 35 of the Report (Pg. 184), the Court
observed that in a criminal case the fair trial entails triangulation of
interests of the accused, the victim and the society. The Court further
observed that “interests of the society are not to be treated completely
with disdain and as persona non grata”.

38. In Best Bakery Case20 , the Court also made the following
observations:

“38. 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 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.

 
39. Failure to accord fair hearing either to the accused or the
prosecution violates even minimum standards of due process of
law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which
the hearing is a real one, not sham or a mere farce and
pretence. Since the fair hearing requires an opportunity to
preserve the process, it may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial.

 
40. The fair trial for a criminal offence consists not only in
technical observance of the frame and forms of law, but also in
recognition and just application of its principles in substance,
to find out the truth and prevent miscarriage of justice.”

 

39. The Bench emphasized that whether a re-trial under Section 386
of the Code or taking up of additional evidence under Section 391 of the
Code in a given case is the proper procedure will depend on the facts and
circumstances of each case for which no straitjacket formula of universal
and invariable application can be formulated.

40. In Satyajit Banerjee and others v. State of West Bengal and
others[21], a two-Judge Bench of this Court was concerned with an appeal by
special leave wherein the accused-appellants were charged for the offences
punishable under Section 498-A and 306 of the Indian Penal Code. The trial
court acquitted the accused persons. In revision preferred by the
complainant, the High Court set aside the order of acquittal and directed
a de novo trial of the accused. While dealing with the revisional
jurisdiction of the High Court in a matter against the order of acquittal,
the Court observed that such jurisdiction was exercisable by the High
Court only in exceptional cases where the High Court finds defect of
procedure or manifest error of law resulting in flagrant miscarriage of
justice. In the facts of the case, this Court held that the High Court
ought not to have directed the trial court to hold the de novo trial. With
reference to Best Bakery Case20 the Court observed in paragraphs 25 and 26
of the Report (Pgs. 121 and 122) as follows :

“25. Since strong reliance has been placed on Best Bakery case
(Gujarat riots case) it is necessary to record a note of
caution. That was an extraordinary case in which this Court was
convinced that the entire prosecution machinery was trying to
shield the accused

i.e. the rioters. It was also found that the entire trial was a
farce. The witnesses were terrified and intimidated to keep them
away from the court. It is in the aforesaid extraordinary
circumstances that the court not only directed a de novo trial
of the whole case but made further directions for appointment of
the new prosecutor with due consultation of the victims. Retrial
was directed to be held out of the State of Gujarat.

 
26. The law laid down in Best Bakery case in the aforesaid
extraordinary circumstances, cannot be applied to all cases
against the established principles of criminal jurisprudence.
Direction for retrial should not be made in all or every case
where acquittal of accused is for want of adequate or reliable
evidence. In Best Bakery case the first trial was found to be a
farce and is described as “mock trial”. Therefore, the direction
for retrial was in fact, for a real trial. Such extraordinary
situation alone can justify the directions as made by this Court
in Best Bakery case.”

 

41. ‘Speedy trial’ and ‘fair trial’ to a person accused of a
crime are integral part of Article 21. There is, however, qualitative
difference between the right to speedy trial and the accused’s right of
fair trial. Unlike the accused’s right of fair trial, deprivation of the
right to speedy trial does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of delay in conclusion of a
criminal trial has to be seen in the facts and circumstances of such case.
Mere lapse of several years since the commencement of prosecution by itself
may not justify the discontinuance of prosecution or dismissal of
indictment. The factors concerning the accused’s right to speedy trial
have to be weighed vis-a-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 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.

42. The appellate court hearing a criminal appeal from a judgment
of conviction has power to order the retrial of the accused under Section
386 of the Code. That is clear from the bare language of Section 386(b).
Though such power exists, it should not be exercised in a routine manner.
A de novo trial or retrial of the accused should be ordered by the
appellate court in exceptional and rare cases and only when in the opinion
of the appellate court such course becomes indispensable to avert failure
of justice. Surely this power cannot be used to allow the prosecution to
improve upon its case or fill up the lacuna. A retrial is not the second
trial; it is continuation of the same trial and same prosecution. The
guiding factor for retrial must always be demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of the Code, will
depend on the facts and circumstances of each case for which no
straitjacket formula can be formulated but the appeal court must closely
keep in view that while protecting the right of an accused to fair trial
and due process, the people who seek protection of law do not lose hope in
legal system and the interests of the society are not altogether
overlooked.

43. Insofar as present case is concerned, it has been concurrently
held by the two Judges who heard the criminal appeal that the appellant was
denied due process of law and the trial held against him was contrary to
the procedure prescribed under the provisions of the Code since he was
denied right of representation by counsel in the trial. The Judges
differed on the course to be followed after holding that the trial against
the appellant was flawed. We have to consider now, whether the matter
requires to be remanded for a de novo trial in the facts and the
circumstances of the present case. The incident is of 1997. It occurred in
a public transport bus when that bus was carrying passengers and stopped at
a bus stand. The moment the bus stopped an explosion took place inside the
bus that ultimately resulted in death of four persons and injury to twenty-
four persons. The nature of the incident and the circumstances in which it
occurred speak volume about the very grave nature of offence. As a matter
of fact, the appellant has been charged for the offences under Section
302/307 IPC and Section 3 and, in the alternative, Section 4(b) of ES Act.
It is true that the appellant has been in jail since 09.03.1998 and it is
more than 14 years since he was arrested and he has passed through mental
agony of death sentence and the retrial at this distance of time shall
prolong the culmination of the criminal case but the question is whether
these factors are sufficient for appellant’s acquittal and dismissal of
indictment. We think not. It cannot be ignored that the offences with
which the appellant has been charged are of very serious nature and if the
prosecution succeeds and the appellant is convicted under Section 302 IPC
on retrial, the sentence could be death or life imprisonment. Section 302
IPC authorises the court to punish the offender of murder with death or
life imprisonment. Gravity of the offences and the criminality with which
the appellant is charged are important factors that need to be kept in
mind, though it is a fact that in the first instance the accused has been
denied due process. While having due consideration to the appellant’s
right, the nature of the offence and its gravity, the impact of crime on
the society, more particularly the crime that has shaken the public and
resulted in death of four persons in a public transport bus can not be
ignored and overlooked. It is desirable that punishment should follow
offence as closely as possible. In an extremely serious criminal case of
the exceptional nature like the present one, it would occasion in failure
of justice if the prosecution is not taken to the logical conclusion.
Justice is supreme. The retrial of the appellant, in our opinion, in the
facts and circumstances, is indispensable. It is imperative that justice
is secured after providing the appellant with the legal practitioner if he
does not engage a lawyer of his choice.

44. In order to ensure that retrial of the appellant is not
prolonged and is concluded at the earliest, Mr. P. P. Malhotra, Additional
Solicitor General submitted that some of the sixty-five witnesses who were
earlier examined by the prosecution but who are not necessary could be
dropped by the public prosecutor.

45. Mr. Md. Mobin Akhtar submitted before us that he would appear
for the accused (appellant) in the trial. In case he does not appear for
the appellant or the appellant does not engage the lawyer on his own, we
direct that the trial court shall provide an appropriate Advocate to the
accused (appellant) immediately.

46. In what we have discussed above we answer the reference by
holding that the matter requires to be remanded for a de novo trial. The
Additional Sessions Judge shall proceed with the trial of the appellant in
Sessions Case No. 122 of 1998 from the stage of prosecution evidence and
shall further ensure that the trial is concluded as expeditiously as may
be possible and in no case later than three months from the date of
communication of this order.

……………………………………….. J.
(R.M. Lodha)

…………………….……………………J.
(Anil R. Dave)

………………………………………J.
(Sudhansu Jyoti Mukhopadhaya)

NEW DELHI.

AUGUST 31, 2012.

———————–
[1] (1955) 2 SCR 524
[2] AIR 1959 SC 609
[3] 1994 Supp (3) SCC 321
[4] (1986) 1 SCC 654
[5] (1992) 1 SCC 225
[6] (1980) 1 SCC 81
[7] (1980) 1 SCC 93
[8] (1980) 1 SCC 98
[9] (1986) 4 SCC 481
[10] (1994) 3 SCC 569
[11] (1995) 2 SCC 486
[12] (1995) 5 SCC 326
[13] (1996) 11 SCC 19
[14] (1998) 7 SCC 507
[15] (1999) 7 SCC 604
[16] (2001) 7 SCC 679
[17] (2002) 4 SCC 578
[18] (1996) 6SCC 775
[19] (1996) 4 SCC 33
[20] (2004) 4 SCC 158
[21] (2005) 1 SCC 115
———————–
32

 

 

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