Full Text
HIGH COURT OF DELHI
JUDGMENT
RAFIQUE ..... Appellant
Through Mr.Aditya Guar, Adv. with Mr.Chandan Kumar, Adv.
Through Mr.Tarang Srivastava, APP for State with SI Alok Bajpai, P.S. Kashmere
Gate.
NAZIM ..... Appellant
Through Mr.Ritesh Bahri, Adv. with Mr.Vipin Bansal and Mr.Pradeep Prajapati, Advs.
2017:DHC:5460
RAHIS ..... Appellant
Through Mr.Gaurav Vashistha, Adv. with Mr.Jagdish Chandra, Adv.
Gate.
AZMAL @ ASLAM ..... Appellant
MAKSUD AHMED ..... Appellant
1. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. This is so held by the Hon’ble Supreme Court in a case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra, (2012) 9 SCC 1.
2. A constitutional amendment was carried out by inserting Article 39-A in the Constitution by the Constitution 42nd Amendment Act, 1976 with effect from 3rd January, 1977 as part of the „Directive Principles of the State Policy‟. The Article reads as under:- “Article 39-A. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
3. In order to achieve the object of the amendment of the Constitution by 42nd Amendment Act, 1976, the Parliament enacted the Legal Services Authorities Act, 1987, which came into force from 9th November, 1995. The Statement of Objects and Reasons of the Act, insofar as relevant for the present, reads as under: “Article 39A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
4. The Hon‟ble Supreme Court in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (supra), noted that this development by way of insertion of Article 39-A in the Constitution and enactment of Legal Services Authorities Act, 1987 and its enforcement from 9th November, 1995 indicates the direction in which the law relating to access to lawyers/legal aid has developed and continues to develop. Access to a lawyer is, therefore, imperative to ensure compliance with statutory provisions, which are of high standards in themselves and which, if duly complied with, will leave no room for any violation of Constitutional provisions or human rights abuses.
5. While upholding the right of the accused to be represented through a lawyer, the Hon‟ble Supreme Court in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (supra), observed as under:
6. It is trite that a 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.
7. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stagemanaged, tailored and partisan trial. 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. This was observed by the Hon‟ble Supreme Court in Zahira Habibulla Sheikh (5) and Anr. v. State of Gujarat and Ors., (commonly known as Best Bakery Case) (2004) 4 SCC 158. This was reiterated by the larger Bench of the Hon‟ble Supreme Court in Mohd. Hussain Alias Julfikar Ali v. State (Government of NCT of Delhi), (2012) 9 SCC 408.
8. Hon‟ble Supreme Court in Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104, has held that an accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. The Apex Court further held that Section 137 of the Indian Evidence Act, 1872 provides for examination-in-chief, cross-examination and re-examination. Section 138 of the 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.
9. While holding right of the accused to cross-examine the prosecution witnesses, the Apex Court has held in P. Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56 as under: “18. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of crossexamination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial.”
10. These are the questions which are involved in adjudication of these five criminal appeals. The appellants were convicted by the impugned judgment dated 23rd January, 2016 under section 120-B r/w 394/397 IPC passed by the learned ASJ-03 (Central), Tis Hazari Courts, Delhi, in Session Case No.158/2011 vide FIR No.253/2008, Police Station Kashmere Gate, under Section 394/397/120-B/411/34 IPC.
11. The order on sentence was passed by the trial court on 29th January, 2016.
12. Even during the course of arguments, learned counsels for the appellants brought to the notice of this Court that out of 15 witnesses examined by the prosecution, there are at least six witnesses who were not cross-examined by the respective counsels for the appellants.
13. It is submitted that when these witnesses were examined, the counsels for the appellants were not present in the Court and the trial court after recording the examination-in-chief of these six witnesses had written “cross-examination by accused persons, Nil, opportunity given” and thus the trial court has denied fair trial to the appellants. Learned counsel for appellants submitted that the star witness/victim who was examined as PW-1 Sh.Naveen Kumar and another important witness PW-11 HC Pramod, who apprehended the accused Rafiq and in whose presence some of the robbed money was recovered, were not cross-examined.
14. They submitted that similarly PW-2 SI Ms.Upkar Kaur, PW-13 Dr.Priya Ranjan and PW-14 Sh.Dharmender Rana and PW-15 Ms.Suman were not allowed to be cross-examined by the trial court as the counsels for the appellants were not present in the court at the relevant time.
15. They further pointed out that the appellants even moved an application under Section 311 Cr.P.C. before the trial court to allow them to cross-examine the star witness PW-1 Sh.Naveen Kumar which was dismissed by an order dated 12th February, 2015 without any justifiable reason.
16. The record revealed that examination-in-chief of PW-1 Sh.Naveen Kumar and PW-2 SI Ms.Upkar Kaur were recorded on 20th April, 2013. The order of the trial court dated 20th April, 2013 reads as under: “FIR No.253/08 PS: Kashmere Gate 20.04.2013 Present: Shri G.S. Guraya, ld. Addl. PP for State. All the accused persons on bail. Three PWs are present out of them two have been examined, cross examined and discharged. One PW SI Mam Chand is present but the said witness has been dropped by the ld. Addl. PP as unnecessarily witness of the case. Let this matter is listed for entire PE on 24.5.2013. Sd/- (……….) ASJ-03 (Central)/20.04.2013”
17. In the statement of PW-1 Naveen Kumar, the trial court had mentioned regarding the cross-examination as “xxxxx by Shri Sushil Kumar, ld. Counsel for the accused Maqsood. Nil. Opportunity given. xxxx by all the remaining accused persons. Nil. Opportunity given. The Court had although waited upto 1.25 p.m.”
18. Regarding PW-2 SI Ms.Upkar Kaur, the trial court had mentioned regarding the cross-examination as “xxxxx by Shri Sushil Kumar, ld. Counsel for the accused Maqsood. Nil. Opportunity given. xxxx by all the remaining accused persons. Nil. Opportunity given.”
19. Similarly statement of PW-11 HC Pramod was recorded on 4th March, 2015 and the trial court had mentioned in the statement regarding the cross-examination as “xxxxx by accused persons. Deferred as the ld. Counsel is not available.”
20. The statements of PW-13, PW-14 and PW-15 were recorded on 4th March, 2015 and they were also not cross-examined. Order of the trial court dated 4th March, 2015 reads as under: “State vs. Maksood Ahmed etc. FIR No.253/08 PS: Kashmere Gate 04.03.2015 Present: Shri Alok Saxena, Ld. Addl. PP for the State. All the accused persons on bail. Three PWs are present. HC Pramod, SI Rajesh have been examined in chief and their cross-examination is deferred as the Ld. Counsel is not available. Dr.Priya Ranjan has been examined, crossexamined and discharged. Put up for PE on 04.04.2015. Sd/- (……..) ASJ-03 (Central), Delhi.”
21. Admittedly, the trial court in its impugned judgment had referred to the statements and relied upon the testimonies of all these six witnesses i.e. PW-1, PW-2, PW-11, PW-13, PW-14 and PW-15 to convict the appellants. Such a trial unknown to law has been conducted by the trial court. The appellants were convicted by the trial court without providing an opportunity to be represented by their counsels or by providing legal aid counsel if their counsels were not available at the relevant time and without these said six witnesses being cross-examined.
22. The principle laid down in Jayendra Vishnu Thakur (supra) was reiterated by the Supreme Court in Mohd. Hussain Alias Julfikar Ali (supra) that every person 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 the charge in a criminal case.
23. Even application of the appellants under section 311 of Cr.P.C. was dismissed by the trial court by a perverse and whimsical order dated 12th February, 2015 without realizing that the appellants were denied fair trial by not giving them an opportunity to cross-examine the said six prosecution witnesses. The Trial Court concluded that the accused had not moved an application for re-examination of PW-1 under Section 311 of the Cr.P.C. till PW-9 was not examined as PW-9 did not support the prosecution‟s case because the accused Nazim, Rahis and their counsel along with two or three persons had visited the house of the complainant/PW-1 and threatened him not to depose.
24. The record revealed that on informing the trial court by PW-1 regarding the visit by one of the accused and his counsel, he was taken into the custody and later on he was released on bail. Even if there were attempts on behalf of any of the appellants to win over or overawe the witness, the trial court could have taken other stringent measures including providing protection to the witness and taking into custody the concerned accused/appellant. Be that as it may, certainly the trial court could not have denied their right to be represented by a counsel and cross-examine the witnesses.
25. At the time of final arguments, the learned counsel representing the appellants requested the trial court that the appellants were not given an opportunity to cross-examine the said witnesses and their testimonies should not be considered.
26. The powers of the appellate court are enumerated in Section 386 of Cr.P.C. which is reproduced as under:
27. In the present case, it is beyond doubt that the trial court has not followed the due process of law while denying the appellants their valuable rights to be represented through counsel and to cross-examine PW-1, PW-2, PW-11, PW-13, PW-14 and PW-15 which has caused them serious prejudice and the trial was vitiated. Therefore, the impugned judgment dated 23rd January, 2016 thereby convicting the appellants and the consequential order on sentence dated 29th January, 2016 against the appellants are hereby set aside.
28. In such a situation where the conviction and consequential sentence have been set aside, this Court has power to order the re-trial of the appellants/accused under Section 386(b) of the Cr.P.C.
29. In Zahira Habibullah Sheikh (5) and Anr. (supra), the Hon’ble Supreme Court of India has held that whether a retrial under section 386 of the Cr.P.C. or taking up of the additional evidence under section 391 of the Cr.P.c. in a given case is the proper procedure will depend upon the facts and circumstances of each case for which no straight jacket formula of universal and invariable application can be formulated.
30. While dealing with the issue of the re-trial, the Apex Court in Mohd. Hussain Alias Julfikar Ali (supra) has held as under:
31. In the present case, the appellants had faced the trial under section 120-B read with section 394 and 397 IPC which are serious offences. Once an accused is convicted under section 394 IPC, he can be incarcerated for life in jail while the minimum punishment under section 397 shall not be less than seven years. Re-trial in the present case can result in the conviction either being confirmed or set aside but such a decision must be the outcome of the due process of law. The question of re-trial was earlier considered by a Constitution Bench of the Hon‟ble Supreme Court in Gopi Chand v. Delhi Administration, AIR 1959 SC 609, 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:
32. In view of the above discussion, the learned ASJ or the successor ASJ shall proceed with the trial of the appellants in Session Case No.158/2011 vide FIR No.253/2008, Police Station Kashmere Gate, under Section 394/397/120-B/411/34 IPC, from the stage of the prosecution evidence and shall 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.
33. Since the accused/appellants were on bail at the time of announcement of the impugned order dated 23rd January, 2016 of conviction, they be set free from the custody provided they are not required in any other case. The appellants are directed to appear before the trial court on 25.09.2017 at 10:00 AM to face the re-trial. The trial court shall direct the appellants to furnish fresh bail and surety bonds with such terms and conditions as it deems fit in the facts and circumstances of the case.
34. This court expects that the ld. defence counsels engaged by the appellants shall cooperate with the learned Addition Sessions Judge and they shall remain available to cross-examine witnesses. In case, the appellants are not able to engage the counsels the Ld.ASJ shall provide them Amicus Curiae or Legal Aid counsel.
35. Copy of this order be circulated to all the Judicial Officers for their guidance.
JUDGE SEPTEMBER 14, 2017/jitender