IN THE SUPREME
COURT OF INDIA
Decided On:
31.08.2012
Mohd. Hussain @
Julfikar Ali Vs. The State (Govt.
of NCT) Delhi
Hon'ble Judges: R.M. Lodha and Anil R. Dave and Sudhansu Jyoti Mukhopadhaya, JJ.
JUDGMENT
R.M. Lodha, J.
1. 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, 'Indian Penal Code')
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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code and also awarded to him
imprisonment for life for the offences under Section 307 Indian Penal Code 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 Indian Penal Code.
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 Code of Criminal Procedure.
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 MANU/SC/0029/1955 :
(1955) 2 SCR 524, 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 MANU/SC/0056/1959:
AIR 1959 SC 609, 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 Code of Criminal
Procedure, 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 MANU/SC/1181/1994:
1994 Supp (3) SCC 321, 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 MANU/SC/0518/1981
: (1981) 1 SCC 627 and Sukh Das v. Union Territory of Arunachal Pradesh
MANU/SC/0140/1986 : (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 Code of Criminal Procedure 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 and Ors. v. Grindlays Bank Ltd.
MANU/SC/0099/1985 : (1986) 1 SCC 654 was concerned with the case where the
trial court acquitted the Appellants of the offence punishable under Section
341 of the Indian Penal Code 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, Code of Criminal Procedure
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 Ors. v. R.S. Nayak and Anr. MANU/SC/0326/1992 : (1992) 1 SCC 225
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 Ors. (I) v. Home Secretary, State of Bihar MANU/SC/0119/1979 : (1980) 1 SCC 81,
Hussainara Khatoon and Ors. (III) v. Home Secretary, State of Bihar,Patna MANU/SC/0120/1979 :
(1980) 1 SCC 93, Hussainara Khatoon and Ors. (IV) v. Home Secretary, State of Bihar,Patna
MANU/SC/0121/1979 : (1980) 1 SCC 98 and Raghubir Singh and Ors. v. State of Bihar MANU/SC/0199/1986 : (1986) 4 SCC 481 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 MANU/SC/1597/1994 :
(1994) 3 SCC 569, 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 MANU/SC/0188/1995 :
(1995) 2 SCC 486, 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 Indian Penal Code 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 Indian Penal Code 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
Indian Penal Code 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 Ors. (VII) v. Home Secretary, Bihar and Ors. MANU/SC/0760/1995 : (1995) 5 SCC 326, 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 Ors. MANU/SC/1709/1996 : (1996) 11
SCC 19, 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 MANU/SC/0640/1998
: (1998) 7 SCC 507, 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 Antulay MANU/SC/0326/1992 : (1992) 1 SCC 225. Raj Deo Sharma (I)
MANU/SC/0640/1998 : (1998) 7 SCC 507 came up for consideration once again in
Raj Deo Sharma (II) v. State of Bihar MANU/SC/0607/1999 : (1999) 7 SCC 604. In
his dissenting judgment, M.B. Shah, J. held that prescribing time-limit would
be against the decisions rendered in Abdul Rehman Antulay MANU/SC/0326/1992 :
(1992) 1 SCC 225 and Kartar Singh MANU/SC/1597/1994 : (1994) 3 SCC 569.
30. In State of M.P.
v. Bhooraji and Ors. MANU/SC/0481/2001 : (2001) 7 SCC 679, 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 Indian Penal Code 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 Indian Penal Code 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. MANU/SC/0047/2000 : (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 Bhooraji MANU/SC/0481/2001 : (2001) 7 SCC 679, 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 MANU/SC/1514/1999 :
(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 MANU/SC/0328/2002
: (2002) 4 SCC 578 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 Ors.
MANU/SC/1282/1996 : (1996) 6SCC 775,"Common Cause", A Registered
Society (II) v. Union of India MANU/SC/1152/1996 : (1996) 4 SCC 33, Raj Deo Sharma
(I) MANU/SC/0640/1998 : (1998) 7 SCC 507, and Raj Deo Sharma (II)
MANU/SC/0607/1999 : (1999) 7 SCC 604 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) MANU/SC/1282/1996 :
(1996) 6SCC 775,"Common Cause" (II) MANU/SC/1152/1996 : (1996) 4 SCC
33, Raj Deo Sharma (I) MANU/SC/0640/1998 : (1998) 7 SCC 507, Raj Deo Sharma
(II) MANU/SC/0607/1999 : (1999) 7 SCC 604 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 Code of Criminal Procedure 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 Anr. v. State of Gujarat
and Ors. MANU/SC/0322/2004 : (2004) 4 SCC 158, 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 Case MANU/SC/0322/2004 : (2004) 4 SCC 158,
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 Ors. v. State of West Bengal and Ors.
MANU/SC/0997/2004 : (2005) 1 SCC 115, 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 Indian Penal Code 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 Indian Penal Code on
retrial, the sentence could be death or life imprisonment. Section 302 Indian
Penal Code 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.
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