Anokhilal v. State of Madhya Pradesh

3. During the pendency of these appeals in this Court, it was observed by this Court in its Order dated 12.12.2018 as under:- “One of the issues that has arisen in the present case is compliance with the statutory timeframe fixed by proviso to Section 309(1)of the Cr.P.C.(as amended in 2018). That Section provides a time limit of 60 days within which the trial is supposed to be completed. In this context, we consider it appropriate to explore the possibility of using video-conferencing for the purpose of recording evidence since it is believed that such use will eliminate the time taken for summoning the witnesses to Court. However, an apprehension is expressed at the Bar that the video-conferencing facility is not always available throughout the trial in various parts of the country and in the present state of the art, it cannot be wholly relied on. Since, this appears to be surmountable, we consider it appropriate to hear National Informatics Centre (NIC) and Department of Justice in the matter. Accordingly, issue notice … …”

4. When these appeals came up for final hearing, certain issues were highlighted by Mr. Siddharth Luthra, learned Senior Advocate who appeared for the appellant on behalf of the Supreme Court Legal Services Authority. According to him, the way the trial was conducted, there was no fairness at all and the interest of the appellant-accused was put to prejudice on more than one count. The principal submission was recorded in the order dated 10.12.2019 passed by this Court as under:- “In the submission of the learned Senior Counsel, following aspects are, therefore, very clear: a) The learned Amicus Curiae came to be appointed the same day when the charges were framed, which effectively means that the learned Amicus Curiae did not have sufficient opportunity to study the matter nor did he have any opportunity to have any interaction with the accused to seek appropriate instructions; The other issues noted in the Order dated 12.12.2018 were referred to but it was observed:- “As presently advised, we will deal first with the issue pertaining to the present trial and whether the approach adopted by the Trial Court in the present matter could be accepted or whether there was any infraction or error on the part of the Trial Court in adopting the approach in the present matter. Other issues, namely applicability of Section 309 and advisability of having video-conferencing in the Anokhilal v. State of Madhya Pradesh matter will be dealt with at a later stage and the consideration of these issues, for the time being, is deferred.”

5. The consideration at present is thus confined to the issue as stated above.

6. In support of his submissions, Mr. Sidharth Luthra, learned Senior Advocate, relied upon certain decisions of this court and, particularly, in Bashira vs. State of U.P.[2] and Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi)3. Mr. Varun Chopra, Deputy Advocate General appearing for the State, however, submitted that the evidence on record, without any doubt, pointed towards the guilt of the accused and as such the order of conviction recorded by the Courts below was correct and did not call for any interference.

7. In Bashira[2], the Trial Court had fixed 28th February, 1967 as the date for starting the actual trial and, on that very day, before beginning the trial, an Amicus Curiae was appointed to represent the accused. On that very day, the Trial Court amended the charge to which the accused pleaded not guilty and two principal prosecution witnesses were examined. The 2 (1969) 1 SCR 32: AIR 1968 SC 1313

Anokhilal v. State of Madhya Pradesh other witnesses were examined on 1st March, 1967 and the accused was also examined under Section 342 of the Code of Criminal Procedure, 1898 (equivalent to Section 313 of the Code of Criminal Procedure, 1973 or “the Code”, for short). The case was thereafter fixed on 10th March, 1967 for arguments, on which date the Amicus Curiae presented an application for recall of one of the prosecution witnesses for further crossexamination. The application was rejected. Arguments were then heard on the same day and the judgment was delivered on 13th March, 1967 convicting the accused for the offence under Section 302 IPC and sentencing him to death. In the backdrop of these facts, the submissions of the Amicus Curiae appearing in this Court were recorded as under:-

The submissions were dealt with as under:-

8. In Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar, Patna[6] it was observed as under:

9. The developments in the matter of providing free Legal Aid as translated in various schemes and dealt with in the decisions of this Court, Anokhilal v. State of Madhya Pradesh were noted in Rajoo Alias Ramakant v. State of Madhya Pradesh[7] as under:

14. The essence of this decision was followed in Khatri and others (II) v. State of Bihar[8]. In that case, it was noted that the Judicial Magistrate did not provide legal representation to the accused persons because they did not ask for it. This was found to be unacceptable. This Court went further and held that it was the obligation of the Judicial Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that the right to free legal services would be illusory unless the Magistrate or the Sessions Judge before whom the accused is produced informs him of this right. It would also make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services thereby rendering the constitutional mandate a mere paper promise.

15. Suk Das v. Union Territory of Arunachal Pradesh[9] reiterated the requirement of providing free and adequate legal representation to an indigent person and a person accused of an offence. In that case, it

Anokhilal v. State of Madhya Pradesh was reiterated that an accused need not ask for legal assistance—the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that (SCC p. 407, para 5) it was now “settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution]”.

16. Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at State cost, it was held that there was a violation of the fundamental right of the accused under Article 21 of the Constitution. The trial was held to be vitiated on account of a fatal constitutional infirmity and the conviction and sentence were set aside.

17. We propose to briefly digress and advert to certain observations made, both in Khatri (2)8 and Suk Das[9] In both cases, this Court carved out some exceptions in respect of grant of free legal aid to an accused person. It was observed that: (SCC p. 632, para 6)

We have some reservations whether such exceptions can be carved out particularly keeping in mind the Anokhilal v. State of Madhya Pradesh constitutional mandate and the universally accepted principle that a person is presumed innocent until proven guilty. If such exceptions are accepted, there may be a tendency to add some more, such as in cases of terrorism, thereby diluting the constitutional mandate and the fundamental right guaranteed under Article 21 of the Constitution. However, we need not say anything more on this subject since the issue is not before us.

18. The above discussion conclusively shows that this Court has taken a rather proactive role in the matter of providing free legal assistance to persons accused of an offence or convicted of an offence.”

10. In Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of Delhi)3 one of the submissions advanced on behalf of the accused was that he was denied right of a counsel and thus was not given fair and impartial trial. H.L. Dattu, J. (as the learned Chief Justice then was) in para 7 of his decision quoted orders passed by the Trial Court and in paras 10 to 12 observed that the evidence of 56 witnesses was recorded by the Trial Court without providing a counsel to the appellant-accused. It was stated: -

22. A two-Judge Bench of this Court in Tyron Nazareth v. State of Goa12, 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: (SCC p. 322, para 2)

23. This Court in S. Guin v. Grindlays Bank Ltd.13 was concerned with the case where the trial court acquitted the appellants of the offence punishable under Section 341 IPC read with Section 36-AD of the 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 retrial that the matter reached this Court. This Court while setting aside the order of remand in para 3 of the Report held as under: (SCC pp. 655-56)

24. The Constitution Bench of this Court in Abdul Rehman Antulay v. R.S. Nayak14 considered right of an accused to speedy trial in light of Article 21 of the Constitution and various provisions of the Code. The Constitution Bench also extensively referred to the earlier decisions of this Court in Hussainara Khatoon (1) v. State of Bihar15, Hussainara Khatoon (3) v. State of Bihar16, Hussainara Khatoon (4) v. State of Bihar[6] and Raghubir Singh v. State of Bihar17 and noted that the provisions of the Code are consistent with the constitutional guarantee of speedy trial emanating from Article 21. In para 86 of the Report, the Court framed guidelines. Sub-paras (9) and (10) thereof read as under: (Abdul Rehman Antulay case14, SCC p. 272)

25. In Kartar Singh v. State of Punjab18, it was stated by this Court that no doubt liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution. In that case, the Court was dealing with a case under the TADAAct.”

It was thus held that the impugned judgment was required to be reversed and the matter was to be remanded for fresh trial. C.K. Prasad, J. concurred with H.L. Dattu, J. and accepted that the Judgments of conviction and sentence be set aside as the appellant-accused was not given assistance of a lawyer to defend himself during trial. However, in his view, the case was not required to be remanded for fresh trial and the benefit of complete acquittal be given to the appellant-accused. On this difference of opinion, the matter went to a Bench of three Judges which accepted the view taken by H.L. Dattu, J. and directed de novo trial. It was observed[3]:-

40. “Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused’s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.”

11. In Ankush Maruti Shinde and others vs. State of Maharashtra20 the High Court had upheld the conviction and death sentence imposed upon accused nos. 1, 2 and 4 while accused nos. 3, 5 and 6 were sentenced to imprisonment for life. The appeals were preferred by accused nos. 1, 2 and 4 against their conviction and sentence while Criminal Appeal Nos. 881-882 of 2009 were preferred by the State seeking enhancement of sentence of life imprisonment to death sentence in respect of accused nos. 3, 5 and 6. In the Appeals preferred by the State, notice was served upon accused nos. 3, 5 and 6 only on 6.12.2008. However, even before service of such notice, the hearing in respect of all the appeals had begun on 04.12.2008. On 10.12.2008 the learned counsel who was appearing for the accused nos. 1, 2 and 4 was appointed as Amicus Curiae to represent accused nos. 3, 5 and 6. The hearing was concluded the same day and the judgment was reserved. By its decision dated 30.04.2009 this Court allowed the Appeals preferred by the State and imposed death sentence upon accused nos. 3, 5 and 6 while confirming the death sentence in respect of accused nos. 1, 2 and 4. All six accused were thus sentenced to death.

Thereafter, Review Petition (Crl.)Nos.34-35 of 2010 were preferred by accused nos. 1, 2 and 4 while Review Petition (Crl.)Nos.18- 19 of 2011 were preferred by accused nos. 3, 5 and 6. While allowing Review Petitions by its Order dated 31.10.201821, this Court observed:- “From the above narration of facts, it is evident that Accused Nos.3, 5 and 6 had no opportunity to be heard by the Bench, before the appeals filed by the State of Maharashtra for enhancement of sentence were decided. They have been deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the State for enhancement.” This Court, therefore, recalled the Judgment and order dated 30.04.2009 and the Criminal Appeals were restored to the file of this Court to be considered on merits. Subsequently, a Bench of three Judges by its decision dated 05.03.201922 acquitted the concerned accused of the charges levelled against them. This Court also dismissed the appeals preferred by the State for enhancement of sentence qua accused Nos.3, 5 and 6.

21 Ambadas Laxman Shinde and others vs. State of Maharashtra - (2018) 14 SCALE 730 = (2018) 18 SCC 788 22 2019 SCC Online SC 317 - Ankush Maruti Shinde and others vs. State of Maharashtra

12. In Imtiyaz Ramzan Khan vs. State of Maharashtra23 it was observed by this Court:-

13. The following principles, therefore, emerge from the decisions referred to hereinbove:a) Article 39-A inserted by the 42nd amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A. b) It has been well accepted that Right to Free Legal Services is an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case19 (as quoted in the decision in Mohd. Hussain[3] ) emphasizes that the object of criminal trial is to search for the truth and Anokhilal v. State of Madhya Pradesh the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty. c) Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira[2] put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defense was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law. d) The portion quoted in Bashira[2] from the judgment of the Madras High Court authored by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defense would not carry out the object underlying the rule. It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare. Anokhilal v. State of Madhya Pradesh e) In Bashira[2] as well as in Ambadas21, making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance of ‘sufficient opportunity’ to the counsel.

14. In the present case, the Amicus Curiae, was appointed on 19.02.2013, and on the same date, the counsel was called upon to defend the accused at the stage of framing of charges. One can say with certainty that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed. The concerned provisions viz. Sections 227 and 228 of the Code contemplate framing of charge upon consideration of the record of the case and the documents submitted therewith, and after ‘hearing the submissions of the accused and the prosecution in that behalf’. If the hearing for the purposes of these provisions is to be meaningful, and not Anokhilal v. State of Madhya Pradesh just a routine affair, the right under the said provisions stood denied to the appellant.

15. In our considered view, the Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

16. There are other issues which also arise in the matter namely that the examination of 13 witnesses within seven days, the examination of the accused under the provisions of the Section 313 of the Code even before the complete evidence was led by the prosecution, and not waiting for the FSL and DNA reports in the present case. DNA report definitely formed the foundation of discussion by the High Court. However, the record shows that the DNA report was received almost at the fag end of Anokhilal v. State of Madhya Pradesh the matter, and after such receipt, though technically an opportunity was given to the accused, the issue on the point was concluded the very same day. The concluding paragraphs of the judgment of the Trial Court show that the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps.

17. In V.K. Sasikala vs. State Represented by Superintendent of Police25 a caution was expressed by this Court as under:- “23.[4] While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the wellentrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time.”

18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the

Anokhilal v. State of Madhya Pradesh pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.

19. In the circumstances, going by the principles laid down in Bashira[2], we accept the submission made by Mr. Luthra, the learned Amicus Curiae and hold that the learned counsel appointed through Legal Services to represent the appellant in the present case ought to have been afforded sufficient opportunity to study the matter and the infraction in that behalf resulted in miscarriage of justice. In light of the conclusion that we have arrived at, there is no necessity to consider other submissions advanced by Mr. Luthra, the learned Amicus Curiae. All that we can say by way of caution is that in matters where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused.

20. We, therefore, have no hesitation in setting aside the judgments of conviction and orders of sentence passed by the Trial Court and the High Court against the appellant and directing de novo consideration. It shall be open to the learned counsel representing the appellant in the Trial Court to make any submissions touching upon the issues (i) whether the charges framed by the Trial Court are required to be amended or not; (ii) whether any of the prosecution witnesses need to be recalled for further cross-examination; and (iii) whether any expert evidence is required to be led in response to the FSL report and DNA report. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law.

21. It must be stated that the discussion by this Court was purely confined to the issue whether, while granting free Legal Aid, the appellant was extended real and meaningful assistance or not. The discussion in the matter shall not be taken to be a reflection on the merits of the matter, which shall be considered and gone into, uninfluenced by any observations made by us.

22. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:- Anokhilal v. State of Madhya Pradesh i) In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. ii) In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae. iii) Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days’ time may normally be considered to be appropriate and adequate. iv) Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have Anokhilal v. State of Madhya Pradesh meetings and discussion with the concerned accused. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan23.

23. In the end, we express our appreciation and gratitude for the assistance given by Mr. Luthra, the learned Amicus Curiae and request him to assist this Court for deciding other issues as noted in the Orders dated 12.12.2018 and 10.12.2019 passed by this Court, for which purpose these matters be listed on 18.02.2020 before the appropriate Bench.

24. With the aforesaid observations, the substantive appeals stand disposed of, but the matter be listed on 18.02.2020 as directed. ………………………….J. [Uday Umesh Lalit] [Indu Malhotra] [Krishna Murari] New Delhi; December 18, 2019.