Full Judgement
Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi
[Criminal Appeal No. 1091 of 2006]
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.
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 & 2) 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 2started. 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 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 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 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 5High 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.
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."
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, which 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.
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
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 along with 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 1018/5/99Pr: 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. 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
1120.7.99
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/cPW1, 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
24/10/99
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
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/-. 14Entire 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
1511.4.2001
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. 16PW.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/Delhi13.12.02Present: Accused in judicial custody. Ld. ______ is on leave today.Illigible__17/1/2003 for RPE.
Sd./-
Reader
13.12.02
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 1809/05/03Present Sh. Bakshish Singh Spl. PP for the state
Accused in JCPW-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
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
01/10/037)
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 xdeferred as defence counsel is not available. PW2 Vijay Kumars/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 xNil opportunity given. PW3Moin Khan S/o Abdul Rashid Khan, Age - 22 years, service, R/o B-104, Prem Nagar, Kirari Village, Delhi. x x x x x xby counsel Firoz Khan.PW4Imtiyaz KhanS/o Rustam Khan, Age - 25 years, Machine Operator, R/o H-10, Man Sarover Park, Riti Road, Shahdrah. x x x x x xNil Opportunity given."
18). 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 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 23not 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 26in 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 30legal 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 31just" 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 : &quo
