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Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.62-63 OF 2014
ANOKHILAL …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. These appeals by special leave challenge the final judgment and
order dated 27.06.2013 passed by the High Court
1
in Criminal Reference
No.4 of 2013 and Criminal Appeal No.748 of 2013.
2. The relevant facts for the purposes of these appeals, in brief, are as
under:
1 The High Court of Madhya Pradesh at Jabalpur
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
2
(A) On 30.01.2013 a missing report was lodged by one Ramlal
that his daughter (hereinafter referred to as ‘the victim’) aged about
nine years was missing since 6 pm and that the appellant, his
neighbour had sent the victim to get a bidi from a kirana shop but the
victim never returned back. Pursuant to this reporting, FIR No.38 of
2013 was registered on 30.01.2013 with Police Station Chaigaon
Makhan, Khandwa for offences under Sections 363, 366 of the Indian
Penal Code.1860 (‘IPC’, for short) against the appellant.
(B) The body of the victim was found in an open field on
01.02.2013.
(C) The appellant was arrested on 04.02.2013, and after
completion of investigation charge-sheet was filed on 13.02.2013 in
the concerned court and the case was committed to Sessions Court on
18.2.2013. The case was posted for 19.02.2013 to consider whether
charges be framed or not.
(D) It appears that since no Advocate had entered appearance on
behalf of the appellant, on 18.02.2013 a learned Advocate was
appointed by the Legal Aid Services Authority to represent the
appellant on 19.02.2013. That learned Advocate, however, did not
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
3
appear on 19.02.2013 when the case was taken up, and as such
another learned Advocate came to be appointed through Legal Aid
Services to represent the appellant. Such appointment was done on
19.02.2013 and on the same day the charges were framed against the
appellant for the offences punishable under Sections 302, 363, 366,
376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of
Children from Sexual Offences Act, 2012.
(E) In the next seven days i.e. by 26.2.2013, all thirteen
prosecution witnesses were examined.
(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013,
1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial
Court were :-
“(i) 27.02.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri
D.S. Chauhan advocate present on his behalf.
The prosecution filed application together with letter
of District Prosecution Officer and with copy of
warrant etc documents. Copies are supplied. The
defense has no objection in taking above documents
on record, hence considering the reasons of as
explained for delay the application is liable to be
accepted and above documents are taken on record.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
4
The prosecution stated that it does not want to
produce any other oral evidence it has been requested
that DNA report and FSL report will be placed on
record as and when they are received, which is
immediately to be received, not any other oral
evidence are to be adduced and besides placing on
record above report, rest of evidence was declared to
be ended.
It would be just and proper to examine accused under
Section 313 Cr.P.C. for evidence available. Hence,
accused examined under Section 313 Cr.P.C. On
entering in defense, the accused stated that he does
not want to adduce any evidence in defense. Not any
written statement under Section 232 (2) Cr.P.C. has
been filed.
Put up on 28.02.2013 for placing on record DNA
report etc and final arguments.
Sd/- (illegible)
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act,
Khandwa
(ii) 28.02.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri
D.S. Chauhan advocate present on his behalf.
An application was filed on behalf of prosecution
with FSL reports. Copies supplied. Heard arguments.
Since there is no effective objection regarding
allowing above application and taking on record
above FSL report and even otherwise these may be
helpful in providing justice, hence reports are taken
on record.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
5
Above reports may be acceptable under Section 293
Cr.P.C., on this basis it was requested to mark exhibit
on above reports. Defense has not raised any
objection in this regard, hence with consent of both
the parties above reports presented by Regional
Forensic Science Laboratory Jhumarghat Rau Indore
(M.P.) are marked as ext. C-1, C-2 and C-3.
The prosecution has not yet received DNA report, the
same will be placed on record as and when it is
received, saying such like earlier it was stated that any
other evidence is not to be produced, hence hearing
final arguments in case started, which remained
incomplete.
Put up on 01.03.2013 for placing on record DNA
report and rest final arguments.
Sd/-
Sessions Judge Khandwa
(iii) 01.03.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri
D.S. Chauhan advocate present on his behalf.
The prosecution has not received DNA report, same
will be placed on record on receipt.
Hearing of rest of final arguments started which
remained incomplete.
Put up on 02.03.2013 for placing on record DNA
report and rest of final arguments.
Sd/-
Sessions Judge
Khandwa
(iv) 02.03.2013
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
6
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri
D.S. Chauhan advocate present on his behalf.
The accused is being tried under Section 9 of
Protection of Children from Sexual Offences Act,
2012 and according to Provisions of Section 5 (f) of
above Act, the situation of previous conviction for the
sexual offence under Section 377 IPC is also clear and
above fact has found mention in charge No.8 framed
in earlier with intention that despite being previously
convicted for sexual offence under Section 377 IPC
but in above charge date time and place etc is not
mentioned regarding conviction according to
provisions of Section 211 (7) Cr.P.C. Hence, as is
provided under Section 211 (7) Cr.P.C. the Court
before passing order of conviction may add statement
of fact, date and place of conviction, hence in this
regard both the parties were heard. In earlier the copy
of judgment of previous conviction was not filed due
to which date, place etc were not mentioned in charge
and during examination under Section 313 Cr.P.C. in
question No.14 in this regard by giving reference of
copy of judgment together with date, time and place
etc conviction was passed and appeal was filed or not
in this regard clear questions were asked, hence it also
does not reflect that any prejudice has been caused to
accused nevertheless to avoid technical fault,
according to provisions of Section 211 (7) Cr.P.C.
charge was modified and amended charge was read
over and explained to accused and his plea was
recorded.
Giving opportunity of additional evidence/cross
examination to both parties regarding amended charge
would be just and proper, in this regard both the
parties were intimated.
Prosecution today by placing on record certain
additional documents articles etc. led additional
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
7
evidence and application under Section 311 Cr.P.C.
has been filed. Besides this, he stated not to adduce
any other additional evidence in regard to amendment
in charge. On the other hand defense also in this
regard stated not to conduct cross examine any
witness already examined and also stated not to
furnish any additional evidence or evidence in
defense.
The prosecution presented articles relating to case in
sealed condition and an application with documents
was filed under Section 311 Cr.P.C. Copy supplied.
Arguments heard.
It is proposed to file received DNA report and
correspondent of FSL/DNA and in above regard also
request has been made to re-examine Investigating
Officer K.K. Mishra (PW-13) and Head Constable
Harikaran PW-12 and accordingly, permission has
been sought.
It has been stated that concerned document and report
since were received in delay and it was filed as
earliest and by virtue of this correspondence relating
to above are being filed now. It is mentioned that
DNA report was received on 01.03.2013 itself hence
considering the reason so disclosed during arguments
defense has not raised any effective objection hence,
application stands allowed and concerned documents
are taken on record and witness K.K. Mishra PW-13
and Hari Karan PW-12 are permitted to be re-
examined.
It has been stated by the public prosecutor that above
witnesses are present today, hence, above both the
witnesses were additionally examined with consent of
defense and they were discharged after re-
examination. Prosecution stated not to adduce any
other evidence as such closed its evidence.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
8
The packet of article so filed is in sealed condition,
which was opened in presence of both the parties.
After evidence let same be deposited in malkhana by
duly sealing with memo of property.
In regard to additional evidence so adduced accused
was re-examined under Section 313 Cr.P.C. and again
on entering in defense, the accused stated not to
adduce any evidence in defense nor any written
statement was filed under Section 232(2) Cr.P.C. and
as such defense closed its evidence. Put up again for
final arguments.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody.
Shri D.S. Chauhan, Advocate present on his behalf.
Heard final arguments. Put up on 04.03.2013 for
judgment.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, khandwa
(v) 4.3.2013
State through Shri B.L. Mandloi P.P.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
9
Accused Anokhilal present from judicial custody.
Shri D.S. Chauhan, advocate present on his behalf.
The judgment pronounced and signed separately in
open court, according to which accused was convicted
under Section 363, 366, 377, 376(2)(f) and Section
302 IPC read with Section 6 of Protection of Children
from Sexual Offences Act, 2012.
Arguments were heard on the question of sentence. It
was informed to both the parties that if they wish,
they may adduce evidence regarding order of
sentence.
It was stated by the prosecution that due to framing
charge under Section 211(7) Cr.P.C. regarding
previous conviction of accused, it has already
adduced evidence at evidence stage regarding
previous conviction of accused and his previous
criminal conduct, hence now he does not want to
adduce evidence regarding conviction.
On the other hand, learned counsel for the defense
Shri D.S. Chauhan he has stated that during whole
trial not any member of family of accused has
appeared and in regard to his conduct in jail the
prosecution itself has already adduced certificate etc.
hence he stated not to adduce any evidence regarding
order of sentence, nevertheless both the parties were
informed that if they wish to adduce any evidence in
this regard, then they may do so. By giving above
information to both the parties, detailed arguments
were heard regarding order of sentence.
Put up again after some time for order of sentence.
Sd/-
Sessions Judge and special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody.
Shri D.S. Chauhan, Advocate present on his behalf.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
10
Both the parties again stated not to adduce any
evidence regarding order of sentence, hence order of
sentence was pronounced separately in open court
according to which accused is convicted and
sentenced as follows regarding charges:
No.Offence
U/s
Sentence of
rigorous
imprisonment
Fine In default of
payment of
fine,
additional
sentence of
rigorous
imprisonment
1.302 IPCDeath
Sentence
- -
2.363 IPCSeven years1000/-One month
3.366 IPCSeven years1000/-One month
4.377 IPCSeven years1000/-One month
5.376(2)
IPC
Life
imprisonment
1000/-One month
Due to being similar act, no separate sentence is being
awarded for the offence under Section 6 of Protection
of Children from Sexual Offences Act, 2012.
By preparing warrant of conviction in this regard let
accused be sent to jail.
The accused has been sentenced to death also and in
above regard according to Section 366 Cr.P.C. it has
also been directed that death penalty be not executed
so long as it is not confirmed by the Hon’ble High
Court, hence in that regard according to provision of
Section 366(2) Cr.P.C. warrant of handing over
accused sentenced to death to taken in custody of jail,
is attached separately with warrant. Copy of
judgment is given to accused and according to
provisions of section 363 (4) Cr.P.C. accused is
informed that he has right to appeal and period of
appeal.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
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Let entire record of this case be sent for placing before
the Hon’ble High Court forthwith for confirmation of
death penalty as per provisions of Section 366 Cr.P.C.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
(G) In its judgment and order dated 4.3.2013, the Trial Court
accepted the case of the prosecution and stated:-
“65.From above analysis it is clear that present case
having similar facts like judicial citation of Rajendra
Prahladrao Vasnic is in the category of ‘rarest of rare’
case and excess to that in the present case accused is
previous convict in sexual offence of similar nature.
Hence, in view of above analysis imposing punishing
of only imprisonment for life cannot be adequate and
death sentence is necessary.
66.Accused Anokhilal son of Sitaram has been
convicted in charge of offence punishable under
Section 363, 366, 376(2)(f), 377 and 302 IPC and
Section 6 of Protection of Children from Sexual
Offences Act, 2012 hence, according to analysis so
done:
(one) for the offence under Section302 IPC accused
Anokhilal son of Sitaram is awarded ‘death sentence’.
By tying knot in neck, he be hanged till his death. It
is also directed that above death sentence be not
executed unless it is confirmed by the Hon’ble High
Court.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
12
(two) For the offence under Section 363 IPC the
accused is sentenced to seven years rigorous
imprisonment with fine of Rs.1000/-, in default of
payment of fine, he is directed to undergo another one
month rigorous imprisonment.
(three)For the offence under Section 366 IPC, the
accused is sentenced to seven years rigorous
imprisonment with fine of Rs.1,000/-, in default of
payment of fine, the accused is directed to undergo
another one month rigorous imprisonment.
(four)For the offence under Section 376 (2)(f)
IPC the accused is sentenced to imprisonment for life
with fine of Rs.1000/-, in default of payment of fine,
he is directed to undergo another one month rigorous
imprisonment.
(five)For the offence under Section 377 IPC the
accused is sentenced to imprisonment for seven years
with fine of Rs.1,000/- in default of payment of fine,
he is directed to undergo another one month rigorous
imprisonment.
(Six) Considering the provisions of Section 42
of Act, where for similar act the accused has been
convicted under the sections of Act and IPC, then he
should be sentenced for the offences having larger
punishment and in this regard principle of Section 71
IPC is also perusable and in Section 376(2)(f) IPC and
in Section 6 of the Act, there is provision of
punishment for imprisonment for life and minimum
sentence of 10 yrs rigorous imprisonment and for
similar act, order of sentence is being passed for the
offence under Section 376(2) (f) and Secton 377 IPC
also, hence separate order of sentence for the offence
under Section 6 of Protection of Children from Sexual
Offences Act, 2012 is not being passed.
All the sentences of imprisonment shall run
concurrently.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
13
67.The accused is in detention since 04.02.2013
hence, let certificate of the period undergone by him
in detention during trial be attached with warrant as
per provisions section 428 Cr.P.C. which may be used
for setting off under Section 428 Cr.P.C. or as per
requirement for computing sentence as provided in
Section 433 Cr.P.C.
68.On payment of fine, entire amount of fine means
Rs.4000/- unless otherwise directed, after expiry of
period of appeal be paid to Shantubai PW-3 mother of
deceased as compensation.
69.According to provisions of Section 366 Cr.P.C.
let entire records and proceeding of the case be placed
before the Hon’ble High Court, Jabalpur for
confirmation of death sentence and death sentence be
not executed till it is confirmed by the Hon’ble
Madhya Pradesh High Court and for keeping accused
in custody in above period let he be handed over with
warrant in above regard for jail custody.
70.I appreciate for assistance of all where in regard
to incident which happened in mid night of 30-31
January, after arrest of accused on 04.02.2013,
completing investigation immediately charge-sheet
was submitted on 18
th
February and to prosecution
which ensured quick trial by placing entire evidence
from 19 February to 02 March, 2013 and specially for
assistance of defence because disposal of case is
ensured within only 1 month of incident only because
of above assistance and completing trial only in 12
working days could be possible.”
(H) Criminal Reference No.4/2013 was accordingly registered in
the High Court for confirmation of death sentence. The appellant also
preferred Criminal Appeal No.748 of 2013 challenging his conviction
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
14
and sentence. The High Court by its judgment and order presently
under appeal, affirmed the view taken by the Trial Court and upheld
the death sentence and other sentences imposed by the Trial Court. It
was observed by the High Court as under:-
“8. ……. The victim was, thus, last seen alive with the
accused by Kirti Bai whose evidence discloses that
the victim and accused were seen together at the point
of time in proximity with the time and date of the
commission of crime. Also after the incident no one
saw the accused alone because he had absconded. We
are, therefore, of the view that the prosecution has
successfully established the last seen theory beyond
any reasonable doubt against the accused.
9. We also find that the report, Ex.58, of the DNA
Finger Printing Unit completely connects the accused
with the commission of crime. The report clearly
states that the hairs seized from the fist of victim and
the skin found in the cut-nails of victim belonged to
the accused. The report further states that the semen
found on the paijama of victim was of the accused.
Not only this, according to the report, blood found on
the underwear of accused was of the victim. The
cremation of the body of victim was done on 1.2.2013
whereas the accused was arrested on 4.2.2013. There
was, therefore, no possibility of the blood of victim
having been put on the seized underwear of the
accused.
… ……
11. The evidence on record clearly establishes that
the accused was close to the family of Ramlal and the
victim trusted him. She, therefore, on his asking
immediately rushed to buy “bidi” for him from a
kirana shop. The accused then followed the victim
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
15
with a premeditated mind to commit the crime. The
accused, taking advantage of the trust of victim, after
kidnapping and subjecting her to brutal rape and
carnal sex most gruesomely throttled her to death. The
numerous injuries on the body of victim testify this
fact. He even dumped the body of victim in the field.
Earlier also, the accused was convicted vide judgment
dated 21.10.2010, Ex.49, for committing carnal sex
with a small boy. Thus, an innocent hapless girl of
nine years was subjected to a barbaric treatment
showing extreme depravity and arouses a sense of
revulsion in the mind of a common man. We feel that
the crime committed satisfies the test of “rarest of
rare” cases. We, therefore, uphold the death sentence
and also other sentences imposed by the trial court.”
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 … …”
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
16
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
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
17
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 28
th
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
3 (2012) 9 SCC 408
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
18
other witnesses were examined on 1
st
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 10
th
March, 1967
for arguments, on which date the Amicus Curiae presented an application
for recall of one of the prosecution witnesses for further cross-
examination. The application was rejected. Arguments were then heard on
the same day and the judgment was delivered on 13
th
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:-
“2. In this case, the principal ground urged on behalf
of the appellant raises an important question of law.
Learned counsel appearing for the appellant
emphasised the circumstance that the amicus curiae
counsel to represent the appellant was appointed by
the Sessions Judge on 28th February, 1967, just when
the trial was about to begin and this belated
appointment of the counsel deprived the appellant of
adequate legal aid, so that he was unable to defend
himself properly. It was urged that the procedure
adopted by the court was not in accordance with law,
so that, if the sentence of death is carried out, the
appellant will be deprived of his life in breach of his
fundamental right under Article 21 of the Constitution
which lays down that no person shall be deprived of
his life or personal liberty, except according to
procedure established by law.”
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
19
The submissions were dealt with as under:-
“8. There is nothing on the record to show that, after
his appointment as counsel for the appellant, Sri
Shukla was given sufficient time to prepare the
defence. The order-sheet maintained by the Judge
seems to indicate that, as soon as the counsel was
appointed, the charge was read out to the accused and,
after his plea had been recorded, examination of
witnesses began. The counsel, of course, did his best
to cross-examine the witnesses to the extent it was
possible for him to do in the very short time available
to him. It is true that the record also does not contain
any note that the counsel asked for more time to
prepare the defence, but that, in our opinion, is
immaterial. The Rule casts a duty on the court itself to
grant sufficient time to the counsel for this purpose
and the record should show that the Rule was
complied with by granting him time which the court
considered sufficient in the particular circumstances
of the case. In this case, the record seems to show that
the trial was proceeded with immediately after
appointing the amicus curiae counsel and that, in fact,
if any time at all was granted, it was nominal. In these
circumstances, it must be held that there was no
compliance with the requirements of this Rule.
9. In this connection, we may refer to the decisions of
two of the High Courts where a similar situation
arose. In Re: Alla Nageswara Rao, Petitioner
4
reference was made to Rule 228 of the Madras
Criminal Rules of Practice which provided for
engaging a pleader at the cost of the State to defend
an accused person in a case where a sentence of death
could be passed. It was held by Subba Rao, Chief
Justice as he then was, speaking for the Bench, that:
4 AIR 1957 AP 505
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
20
“a mere formal compliance with this Rule will
not carry out the object underlying the Rule. A
sufficient time should be given to the advocate
engaged on behalf of the accused to prepare
his case and conduct it on behalf of his client.
We are satisfied that the time given was
insufficient and, in the circumstances, no real
opportunity was given to the accused to defend
himself”.
This view was expressed on the basis of the fact
found that the advocate had been engaged for the
accused two hours prior to the trial. In Mathai
Thommen v. State
5
the Kerala High Court was dealing
with a Sessions trial in which the counsel was
engaged to defend the accused on 2nd August, 1958,
when the trial was posted to begin on 4th August,
1958, showing that barely more than a day was
allowed to the counsel to get prepared and obtain
instructions from the accused. Commenting on the
procedure adopted by the Sessions Court, the High
Court finally expressed its opinion by saying:
“Practices like this would reduce to a farce the
engagement of counsel under Rule 21 of the
Criminal Rules of Practice which has been
made for the purpose of effectively carrying
out the duty cast on courts of law to see that no
one is deprived of life and liberty without a
fair and reasonable opportunity being afforded
to him to prove his innocence. We consider
that in cases like this counsel should be
engaged at least some 10 to 15 days before the
trial and should also be furnished with copies
of the records.”
In our opinion, no hard and fast rule can be laid down
as to the time which must elapse between the
appointment of the counsel and the beginning of the
5 AIR 1959 Kerala 241
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
21
trial; but, on the circumstances of each case, the Court
of Session must ensure that the time granted to the
counsel is sufficient to prepare for the defence. In the
present case, when the counsel was appointed just
before the trial started, it is clear that there was failure
to comply with the requirements of the rule of
procedure in this behalf.
(Emphasis by us)
It was also stated that the violation of the mandate of the concerned
Rule would amount to breach of rights conferred by Article 21 of the
Constitution as under:
“In these circumstances, conviction of the appellant
in a trial held in violation of that Rule and the award
of sentence of death will result in the deprivation of
his life in breach of the procedure established by law.”
The operative part of the decision was :-
“As a consequence, we set aside the conviction and
sentence of the appellant. Since we are holding that
the conviction is void because of an error in the
procedure adopted at the trial, we direct that the
appellant shall be tried afresh for this charge after
complying with the requirements of law, so that the
case is remanded to the Court of Session for this
purpose.”
8. In Hussainara Khatoon and others (IV) v. Home Secretary, State
of Bihar, Patna
6
it was observed as under:
6 (1980) 1 SCC 98
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
22
“7. We may also refer to Article 39-A the fundamental
constitutional directive which reads as follows:
“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.”(emphasis added)
This article also emphasises that free legal service is
an unalienable element of “reasonable, fair and just”
procedure for without it a person suffering from
economic or other disabilities would be deprived of
the opportunity for securing justice. The right to free
legal services is, therefore, clearly an essential
ingredient of “reasonable, fair and just”, procedure for
a person accused of an offence and it must be held
implicit in the guarantee of Article 21. This is a
constitutional right of every accused person who is
unable to engage a lawyer and secure legal services
on account of reasons such as poverty, indigence or
incommunicado situation and the State is under a
mandate to provide a lawyer to an accused person if
the circumstances of the case and the needs of justice
so require, provided of course the accused person
does not object to the provision of such lawyer.
…….”
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,
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
23
were noted in Rajoo Alias Ramakant v. State of Madhya Pradesh
7
as
under:
“6. By the Forty-second Amendment to the
Constitution, effected in 1977, Article 39-A was
inserted. This article provides for free legal aid by
suitable legislation or schemes or in any other
manner, to ensure that opportunities for securing
justice are not denied to any citizen by reason of
economic or other disabilities.
7. Article 39-A of the Constitution reads as follows:
“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.”
8. Subsequently, with the intention of providing free
legal aid, the Central Government resolved (on 26-9-
1980) and appointed the “Committee for
Implementing the Legal Aid Schemes”. This
Committee was to monitor and implement legal aid
programs on a uniform basis throughout the country
in fulfilment of the constitutional mandate.
9. Experience gained from a review of the working of
the Committee eventually led to the enactment of the
Legal Services Authorities Act, 1987 (for short “the
Act”).
7 (2012) 8 SCC 553
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
24
10. The Act provides, inter alia, for the constitution of
a National Legal Services Authority, a Supreme Court
Legal Services Committee, State Legal Services
Authorities as well as Taluk Legal Services
Committees. Section 12 of the Act lays down the
criteria for providing legal services. It provides, inter
alia, that every person who has to file or defend a case
shall be entitled to legal services, if he or she is in
custody. Section 13 of the Act provides that persons
meeting the criteria laid down in Section 12 of the Act
will be entitled to legal services provided the
authority concerned is satisfied that such person has a
prima facie case to prosecute or defend.
11. It is important to note in this context that Sections
12 and 13 of the Act do not make any distinction
between the trial stage and the appellate stage for
providing legal services. In other words, an eligible
person is entitled to legal services at any stage of the
proceedings which he or she is prosecuting or
defending. In fact the Supreme Court Legal Services
Committee provides legal assistance to eligible
persons in this Court. This makes it abundantly clear
that legal services shall be provided to an eligible
person at all stages of the proceedings, trial as well as
appellate. It is also important to note that in view of
the constitutional mandate of Article 39-A, legal
services or legal aid is provided to an eligible person
free of cost.
Decisions of this Court
12. Pending the enactment of the Legal Services
Authorities Act, the issue of providing free legal
services or free legal aid or free legal representation
(all terms being understood as synonymous) came up
for consideration before this Court.
13. Among the first few decisions in this regard is
Hussainara Khatoon (4) v. Home Secretary, State of
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
25
Bihar, Patna
6
. In that case, reference was made to
Article 39-A of the Constitution and it was held that
(SCC p. 105, para 7) free legal service is an
inalienable element of “‘reasonable, fair and just’,
procedure for a person accused of an offence and it
must be held implicit in the guarantee of Article 21
[of the Constitution]”. It was noted that: “This is a
constitutional right of every accused person who is
unable to engage a lawyer and secure [free] legal
services on account of reasons such as poverty,
indigence or incommunicado situation.” It was held
that the State is under a mandate to provide a lawyer
to an accused person if the circumstances of the case
and the needs of justice so require, subject of course
to the accused person not objecting to the providing of
a lawyer.
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
8 (1981) 1 SCC 627
9 (1986) 2 SCC 401
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
26
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)
“6. … There may be cases involving offences
such as economic offences or offences against
law prohibiting prostitution or child abuse and
the like, where social justice may require that
free legal services need not be provided by the
State.”
We have some reservations whether such exceptions
can be carved out particularly keeping in mind the
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
27
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: -
“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.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
28
19. If the appellate court in an appeal from a
conviction under Section 386 orders the accused to be
retried, on the matter being remanded to the trial court
and on retrial 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
10
, 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 Admn
11
, a Constitution
Bench of this Court was concerned with the criminal
appeals wherein plea of the validity of the trial and of
the orders of conviction and sentence was raised by
the appellant. That was a case where the appellant was
charged for three offences which were required to be
tried as a warrant case by following the procedure
prescribed in the Criminal Procedure Code, 1898 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: (AIR pp. 619-20, para 29)
10 AIR 1955 SC 792 : (1955) 2 SCR 524
11 AIR 1959 SC 609 : 1959 Crl. L. J. 782
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
29
“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
12
, 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)
“2. We have heard the learned counsel for
the State. We have also perused the
decisions of this Court in Khatri (2) v. State
of Bihar
8
and Sukh Das v. UT, Arunachal
Pradesh
9
. We find that the appellant was not
assisted by any lawyer and perhaps he was
not aware of the fact that the minimum
sentence provided under the statute was 10
years’ rigorous imprisonment and a fine of
Rs 1 lakh. We are, therefore, of the opinion
that in the circumstances the matter should
go back to the tribunal. The appellant if not
represented by a lawyer may make a request
to the court to provide him with a lawyer
under Section 304 of the Criminal
Procedure Code or under any other legal aid
12 1994 Supp (3) SCC 321
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
30
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 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)
“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
13 (1986) 1 SCC 654
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
31
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 42 of
the Criminal Procedure Code even if for
some reason it came to the conclusion that
the acquittal was wrong. A fresh trial nearly
seven years after the alleged incident is
bound to result in harassment and abuse of
judicial process.”
24. The Constitution Bench of this Court in Abdul
Rehman Antulay v. R.S. Nayak
14
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 Bihar
15
, Hussainara Khatoon (3) v.
State of Bihar
16
, Hussainara Khatoon (4) v. State of
Bihar
6
and Raghubir Singh v. State of Bihar
17
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 case
14
,
SCC p. 272)
“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
14 (1992) 1 SCC 225
15 (1980) 1 SCC 81
16 (1980) 1 SCC 93
17 (1986) 4 SCC 481
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
32
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
18
, 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 TADA Act.”
18 (1994) 3 SCC 569
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
33
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
:-
“15. Section 304 of the Code mandates legal aid to
the 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.
…… …
38. In Best Bakery case
19
, the Court also made the
following observations: (SCC p. 187, paras 38-40)
“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
19 Zahira Habibulla H. Sheikh vs. State of Gujarat – (2004) 4 SCC 158
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
34
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.”
The Bench emphasised that: (Best Bakery case
19
, SCC
p. 192, para 52)
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
35
“52. Whether a retrial 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. “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.”
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
36
11.In Ankush Maruti Shinde and others vs. State of Maharashtra
20
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.
20 (2009) 6 SCC 667
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
37
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 31.10.2018
21
, 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
05.03.2019
22
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
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
38
12.In Imtiyaz Ramzan Khan vs. State of Maharashtra
23
it was
observed by this Court:-
“4. We now come to the common feature between
these two matters. Mr. Shikhil Suri, learned advocate
appeared for the accused in both the matters. On
previous dates letters were circulated by the learned
advocate appearing for the petitioners that the matters
be adjourned so as to enable the counsel to make
arrangements for conducting videoconferencing with
the accused concerned. The letter further stated that
this exercise was made mandatory as per the
directions of the Supreme Court Legal Services
Committee. This Court readily agreed
24
and
adjourned the matters. On the adjourned date, we
enquired from Mr. Shikhil Suri, learned advocate
whether he could successfully get in touch with the
accused concerned. According to the learned
advocate he could not get in touch with the accused in
the first matter but could speak with his sister whereas
in the second matter he could have video conference
with the accused.
5.In our view such a direction on part of the
Supreme Court Legal Services Committee is quite
commendable and praiseworthy. Very often we see
that the learned advocates who appear in matters
entrusted by the Supreme Court Legal Services
Committee, do not have the advantage of having had
a dialogue with either the accused or those who are in
the know of the details about the case. This at times
seriously hampers the efforts on part of the learned
advocates. All such attempts to facilitate dialogue
between the counsel and his client would further the
cause of justice and make legal aid meaningful. We,
therefore, direct all Legal Services
Authorities/Committees in every State to extend
similar such facility in every criminal case wherever
23 (2018) 9 SCC 160
24 (2018) 9 SCC 163 – Imtiyaz Ramzan Khan vs. State of Maharashtra
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
39
the accused is lodged in jail. They shall extend the
facility of videoconferencing between the counsel on
one hand and the accused or anybody in the know of
the matter on the other, so that the cause of justice is
well served.”
13.The following principles, therefore, emerge from the decisions
referred to hereinbove:-
a)Article 39-A inserted by the 42
nd
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 case
19
(as quoted in the decision in Mohd. Hussain
3
) emphasizes
that the object of criminal trial is to search for the truth and
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
40
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.
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
41
e)In Bashira
2
as well as in Ambadas
21
, 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
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
42
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
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
43
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
Police
25
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 well-
entrenched 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
25 (2012) 9 SCC 771
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
44
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.
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45
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:-
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
46
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
Criminal Appeal Nos.62-63 of 2014
Anokhilal v. State of Madhya Pradesh
47
meetings and discussion with the concerned accused. Such
interactions may prove to be helpful as was noticed in
Imtiyaz Ramzan Khan
23
.
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]
………………………….J.
[Indu Malhotra]
………………………….J.
[Krishna Murari]
New Delhi;
December 18, 2019.
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