TaxTMI 
TaxTMI 
2012 (1) TMI 403
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecution, as noticed by the High Court, which appears to be accurate statement of facts, proceeds on these lines: 2. On 30-12-1997 at about 6.20 p.m. one blueline bus No. DL-IP-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at the Ram Pura Bus Stand on Rohtak Road for passengers to get down. The moment that bus stopped there an explosion took place inside the bus because of which its floor got ripped apart. Four passengers of that bus, namely, Ms. Tapoti, Taj Mohd. Narain Jha and Rajiv Verma died and twenty four passengers including the conductor of that bus were injured due to that explosion. Two policemen (PWs 41 & 52) were on checking duty at that but stop at the time of blast. On their informing the local police station police team reached the spot. Crime team and bomb disposal squad were also called and the damaged bus was inspected and from the spot debris etc. were lifted and sealed. 3. On the basis of the statement of Head Constable Suresh (PW-41), who was one of the two policemen on duty at the bus stop of Rampura, a case under Section 307 Indian Penal Code and Section 3, 4 and 5 of the Explosive Substances Act was registered at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... time but could not succeed and was apprehended. His pistol was seized. It appears that during the interrogation by the police the Appellant and three more persons, namely, Abdul Rehman, Mohd. Ezaz Ahmed and Mohd. Maqsood confessed about their involvement in the present incident of bomb blast in the bus on 30.12.1997. That information was then passed over to Punjabi Bagh police station on 18.03.1998 by the Crime Branch and accordingly all these four persons were formally arrested for the present case also on 21.3.1998 for which date the investigating officer of the present case had sought their production in court by getting issued production warrants from the court seized of the above referred case of FIR No. 49/1998. The investigating officer moved an application before the concerned court on the same day for holding of Test Identification Parade (TIP) in respect of the Appellant in view of the suspicion expressed by PW-1 Darshan Kumar, the conductor of the bus involved in the blast regarding one passenger who had boarded his bus from Paharganj bus stop along with a rexine bag for going to Nangloi but instead of going upto Nangloi he had got down from the bus at Karol Bagh leavin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....High Court. At this stage itself, it is relevant to notice that the Appellant had pleaded, both before the Trial Court and the High Court, that he was not given a fair and impartial trial and he was denied the right of a Counsel. The High Court has noticed this contention and has answered against the Appellant. In the words of the High Court: 45. Faced with this situation Mr. Luthra came out with an arguments that this case, in fact, needs to be remanded back to the trial back for a fresh trial because the trial court record would reveal that the accused did not have a fair trial inasmuch as on most of the hearing when material witnesses were examined he was unrepresented and the trial court did not bother to provide him legal aid at State expense and by not doing that the Trial Court, in fact, failed to discharge its pious duty of ensuring that the accused was defended properly and effectively at all stages of the trial either by his private Counsel or in the absence of private Counsel by an experienced and responsible amicus curiae. Mr. Luthra also submitted that, in fact, the learned Additional Sessions Judge himself should have taken active part at the time of recordin....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., but on all three dates, the cross-examination of this witness was deferred at the request of the accused, who was ultimately discharged with nil cross-examination. This shows that accused himself was not interested in cross-examining the witnesses. As such, this submission is also without merit. 47. We have ourselves also perused the trial court record and we are convinced that it is not a case where it can be said that the accused did not have a fair trial or that he had been denied legal aid. We are in full agreement with the above quoted views of the learned Additional Sessions Judge on this objection of the accused and we refuse to accept the plea of the Appellant that this case should be remanded back for a re-trial. 4. I have heard Learned Counsel Mr. Mobin Akhtar for the Appellant and Mr. J.S. Atri, learned senior Counsel for the State. 5. In this Court, the judgments are assailed, apart from the merits, that the Appellant is denied due process of law and the conduct of the trial is contrary to procedure prescribed under the provisions of Code of Criminal Procedure and, in particular, that he was not given a fair and impartial trial and was denied the right ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce to PP be also issued. Sd./- MM/Delhi 6.8.98 18/5/99 Pr: Spl PP for State. Accused in J/C. PW.1 partly examined and his cross-examination deferred at the request of accused as his Counsel Firoz Khan has not put his appearance in the court. PW.1 is bound down for the next date of hearing. PW.2 examined and discharged. No other PW. Present except IO Satya Prakash present. To come up for remaining evidence on 3/6/99. Sd./- ASJ/Delhi 18/5/99 3/6/99 Pr: Spl. PP for the State. Accused present in j/c with Counsel. PW.3, 4 present, examined and discharged. PW.1, Darshan Kumar, Ganesh Sharma are present but they are not examined on the request of defence Counsel as he has not gone through the statement. Considering the request, both the witnesses are bound down for next date of hearing. Inspector Satya Prakash IO is also and ischarged (sic.). Now to come for P.E. on 20/7/99. Sd/- ASJ/Delhi 3/6/99 20.7.99 Pr: Spl PP for the State Accused in J.C. with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r witness served for today. Now, list the matter for P.E. on 6/11/2000. Sd./- ASJ/Delhi 29.11.2000 Present: Addl. PP for the State. Accused in j/c. PW 20 examined and discharged. No other PW is present. PW SI Om Prakash is served but absent despite service. Issue B/W in the sum of Rs. 500/-. Entire remaining witnesses be summoned through IO on 10.1.2001. Sd./- ASJ/Delhi 10.1.2001 Present: Spl PP for State. Accused in J/C. PW-21 and 22 examined, cross-examined and discharged. No other PW is present except IO. PW Rajinder Singh Bist is absent despite service. Issue B/W against him in the sum of Rs. 500/-. Now list the case for RPE on 14.2.2011. Sd./- ASJ/Delhi 14/2/2001 Pr: Addl. PP for the State. Accused in J/C. PW. 23 & 24 examined, cross-examined and discharged. No other witness served for today. IO, SI Om Prakash is absent despite service. Issue B/Ws against him in the sum of Rs. 500/-. Now, put up the case for entire RPE on 14/3/2001. Sd./- ASJ/Delh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 25/02/03 Pr: Sh. Bakshish Singh, Spl. PP for State. Accused in J/C with Counsel. Two PWs. 46 & 47 have been examined, cross-examined and discharged. No other witness is present. Ld. Spl. PP seeks another opportunity for adducing evidence. In the interest of justice one more opportunity is granted to the prosecution to lead the entire evidence on 26.03.03. Sd./- ASJ/Delhi 26/3/2003 Pr.: Addl. PP Sh. Jitender Kakkar, for the State. Accused in J/C. PW-48 examined, cross examined and discharged. No other PW is present. PW Vinod Kumar has not been served. PW Vinod Kumar along with all the public witnesses be summoned through IO for 22.4.2003. In the interest of justice, one more opportunity is granted to the prosecution to lead its entire evidence for the date fixed. ASJ/Delhi 22.4.03 Present: Addl. PP Sh. Jitender Kakkar for the State Accused in J.C. PW-49, PW-50 and PW-51 examined, cross-examined and discharged. Put up for RPE on 09.05.03. On the request of Ld. APP one more opportunity is given to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Darshan Kumar S/o Fakir Chand, Age - 30 years, Driver, R/o B-48, Piragarhi, New Delhi - 43 I was working as conductor in blue line bus No. DL1P3088 and the said bus used to ply from Nangloi to Ajmeri Gate. xxx deferred as defence Counsel is not available. PW2 Vijay Kumar S/o Fakir Chand, Age about 28 years, Driver, R/o C-154 Pira Garhi, Relief Camp, Delhi. I am working as driver in blue line bus DL1P 3088 and the sadi bus plies from Ajmeri Gate to Nangloi. xxx Nil opportunity given. PW3 Moin Khan S/o Abdul Rashid Khan, Age - 22 years, service, R/o B104, Prem Nagar, Kirari Village, Delhi. xxx by Counsel Firoz Khan. PW4 Imtiyaz Khan S/o Rustam Khan, Age - 25 years, Machine Operator, R/o H-10, Man Sarover Park, Riti Road, Shahdrah. xxx Nil Opportunity given. 8. The records would disclose that during the committal proceedings before the learned Magistrate, the Appellant was assisted by one Sri. V.K. Jain, a Learned Counsel employed by the State. He continued till the case was committed to the Court of Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of the freshly appointed Learned Counsel, who thought it fit not to cross-examine any of those witnesses. Before the conclusion of the trial, she had filed an application to cross-examine only one prosecution witness and that prayer in the application had been granted by the Trial Court and the Learned Counsel had performed the formality of cross-examining this witness. I do not wish to comment on the performance of the Learned Counsel, since I am of the view that 'less said the better'. In this casual manner, the trial, in a capital punishment case, was concluded by the Trial Court. It will, thus, be seen that the trial court did not think it proper to appoint any Counsel to defend the Appellant/accused, when the Counsel engaged by him did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the Counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of Learned Counsel and her appearance during the last stages of the trial was rather proforma than active. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated: 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. 12. In M.H. Hoskot ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d be provided Counsel we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed. 14. In the case of Hussainara Khatoon and Ors. v. Home Secy., State of Bihar (1980) 1 SCC 98, it is held: 6. Then there are several undertrial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail. It is not uncommon to find that undertrial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty the undertrial prisoners are unable to furnish and which, therefore, effectively shuts out for them any ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless Counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try Defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few Defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That Government hires lawyers to prosecute and Defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to Counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isoners were produced for the first time before the Judicial Magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners. The records of the Judicial Magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked for it nor did the Judicial Magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it. The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail. It is difficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatoon (IV) case. This C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....first time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time. 6. But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erely appointing a Counsel whatever his calibre may be. When the law enjoins appointing a Counsel to defend an accused, it means an effective Counsel, a Counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the Judges before whom such indigent accused are facing trial for serious offence and who are not able to engage a Counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality. 17. The prompt disposition of criminal cases is to be commen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and decide otherwise, would simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to. 19. The Learned Counsel for the Respondent-State, Sri Atri contends that since no prejudice is caused to accused in not providing a defence Counsel, this Court need not take exception to the trial concluded by the learned Sessions Judge and the conviction and sentence passed against the accused. I find it difficult to accept the argument of the learned senior Counsel. The Code of Criminal Procedure ensures that an accused gets a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. The right to be defended by a Learned Counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is 'prejudice' to an accused. It is worth to notice the observations made by this Court in the case of Raf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication. 20. 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. 21. 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 03.11.2004 and the judgment and Order passed by the High Court in Crl. Appeal No. 41 of 2005 dated 04.08.2006 and reman....
X X X X Extracts X X X X
X X X X Extracts X X X X
....30th December, 1997 at 6.20 P.M., a Blue-line bus carrying passengers was on way to Nangloi from Ajmeri Gate, Delhi and when stopped at Rampura bus stand on Rohtak Road to drop the passengers, an explosion took place inside the bus in which four passengers died and 24 persons sustained serious injuries. 26. A case under Section 302, 307 and 120-B of Indian Penal Code and Section 3 and 4 of the Explosives Substances Act was registered on the same day. During the course of investigation, one Darshan Kumar, the conductor of the aforesaid blue line bus disclosed to the investigating agency that one passenger boarded the bus from Paharganj with a rexine-bag saying that he would go to Nangloi. He kept the rexine-bag underneath the seat where he was sitting but got down at Karol Bagh leaving the rexine-bag. Further investigation brought to light that some persons belonging to terrorist organizations are operating in the Capital and their object is to create an atmosphere of terror, insecurity and instability in the country by killing innocent citizens. This information prompted raids at different parts of the city in which hand grenades and materials used for making bombs were recovere....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and discharged. But cross-examination of P.W.1- Darshan Kumar did not take place at the request of the defence Counsel. The next date relevant is 20th July, 1999 when the Appellant was represented by his Counsel and on that date, P.W. 5- Ganesh Sharma, P.W. 6- Basant Verma and P.W. 7- Manohar Lal were examined and discharged. Thereafter, the case was adjourned to 30th August, 1999 and from that date till 1st October, 2003, though the Appellant was not represented by any Counsel, altogether 56 prosecution witnesses were examined to prove the charges against him. Obviously in the absence of the Counsel the truthfulness or otherwise of their evidences were not tested by cross-examination. 28. It is relevant to note that the Trial Court, during all this long period, did not realize that the Appellant was not represented by any Counsel and it is on 4th December, 2003 the Appellant brought to the notice of the Trial Court that for the last several dates, the Counsel appointed by the Court was not present and hence a new Counsel be appointed. It is on the Appellant's prayer that one Ms. Sadhana Bhatia, Advocate present in the Court on the said date, was appointed to defend the App....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n his way to engage a Counsel of his choice. 30. Having said so, it needs consideration as to whether assistance of the Counsel would be necessary for fair trial. It needs no emphasis that conviction and sentence can be inflicted only on culmination of the trial which is fair and just. I have no manner of doubt that in our adversary system of criminal justice, any person facing trial can be assured a fair trial only when the Counsel is provided to him. Its roots are many and find places in manifold ways. It is internationally recognized by covenants and Universal Declaration of Human Rights, constitutionally guaranteed and statutorily protected. 31. Article 14 of the International Covenant on Civil and Political Rights guarantees to the citizens of nations signatory to that covenant various rights in the determination of any criminal charge and confers on them the minimum guarantees. Article 14 (2) and (3) of the said covenant read as under: Article 14. xxx 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. 33. These salutary features forming part of the International Covenants and Universal Declaration on Human Rights are deep rooted in our constitutional scheme. Article 21 of the Constitution of India commands in emphatic terms that no person shall be deprived of his life or personal liberty except according to the procedure established by law and Article 22(1) thereof confers on the person charged to be defended by a legal practitioner of his choice. Article 39A of the Constitution of India casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other disabilities. 34. Besides the International Covenants and Declarations and the constitutional guarantees referred to above, Section 303 of the Code of Criminal Pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. If an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. The right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through Counsel. One cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. Such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time looses his equilibrium in face of the charge. A guiding hand of Counsel at every step in the proceeding is needed for fair trial. If it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect An accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence. 36. Bearing in mind the aforesaid principles, I proceed to ex....