Legal Services: Grant of free legal aid – Real and meaningful assistance – Entitlement to – On facts, in the case of rape and murder of a minor girl, appointment of counsel through legal services to represent the accused-appellant – The day the counsel appointed, on the same day charges framed against the appellant for offence punishable u/ss. 363, 366, 377, 376(2)(f) and 302 IPC r/w s. 6 of POCSO Act – Thereafter, conviction of appellant and imposition of death sentence and other sentences by courts below – On appeal, held: The day Amicus Curiae was named, on the same date, the counsel was called upon to defend the accused at the stage of framing of charges – 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 – Even before the Amicus Curiae could come to grips of the matter, the charges were framed and trial itself was concluded within a fortnight – Approach adopted by the trial court, may have expedited the conduct of trial, but did not further the cause of justice – It left glaring gaps – Thus, in the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful – Counsel ought to have been afforded sufficient opportunity to study the matter and the infraction in that behalf resulted in miscarriage of justice – Judgment of conviction and orders of sentence passed by courts below against the appellant set aside directing de novo consideration wherein the counsel would take up the remaining issue – Penal Code, 1860 – ss. 363, 366, 377, 376(2)(f) and 302 – Protection of Children from Sexual Offences Act, 2012 – s. 6.
Advocates/Lawyer: Appointment as Amicus Curiae – Guidelines for, in cases where there is a possibility of life sentence or death sentence – Held: Advocates having 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 – 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 – Counsel appointed as Amicus Curiae, to be provided some reasonable time to prepare the matter – Minimum seven days’ time may normally be considered to be appropriate and adequate.
Criminal Trial – Expeditious disposal – Necessity of – Held: Expeditious disposal is required in criminal matters and that would naturally be part of guarantee of fair trial – However, the attempt to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused – The cause of justice must never be allowed to suffer or be sacrificed which is paramount – Thus, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice – Administration of criminal justice.
Constitution of India: Art. 39A – Equal justice and free legal aid – Held: Article 39-A 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 – Right to Free Legal Services is an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence – Trial must be conducted in such a manner as will punish the innocent and punish the guilty – Counsel must be given sufficient and adequate time to prepare for the defence – Legal Services Authorities Act, 1987. Disposing of the appeals with direction to list the matter on 18.02.2020 for consideration of other related issues, the Court HELD: 1.1 Article 39-A inserted by the 42nd amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A. 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 decision of this Court in Best Bakery case emphasizes that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty. Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira’case 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. In Bashira as well as in Ambadas 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. [Para 13][1231-B-H; 1232-A]
1.2 In the instant 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. [Para 14][1232-A-B]
1.3 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, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day, 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. [Para 15][1232-D-E]
1.4 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 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. [Para 16][1232-F-H; 1233-A]
1.5 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 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. [Para 18][1233-C-D]
1.6 In the circumstances, going by the principles laid down in Bashira, the submission made by the Amicus Curiae is accepted and held that the counsel appointed through Legal Services to represent the appellant in the instant 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, there is no necessity to consider other submissions advanced by the Amicus Curiae. It is said by way of caution 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. [Para 19][1233-E-G]
1.7 There is 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 counsel representing the appellant in the trial court to make any submissions touching upon the issues whether the charges framed by the trial court are required to be amended or not; whether any of the prosecution witnesses need to be recalled for further cross–examination; and 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. [Para 20][1233-H; 1234-A-B]
1.8 Certain norms are laid down that in all cases where there is a possibility of life sentence or death sentence, 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; that 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 ; that whenever any 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; that any counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned accused. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan. [Para 22][1234-D-G]
Bashira v. State of U.P., [1969] 1 SCR 32 : AIR 1968 SC 1313 - relied on.
Mohd. Hussain Alias Julfikar Ali v. State (Government of NCT of Delhi), (2012) 9 SCC 408 : [2012] 10 SCR 480; Re: Alla Nageswara Rao, Petitioner AIR 1957 AP 505; Mathai Thommen v. State AIR 1959 Kerala 241; Hussainara Khatoon and Others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 : [2012] 6 SCR 1182; Rajoo Alias Ramakant v. State of Madhya
Pradesh (2012) 8 SCC 553; Khatri and Others (II) v. State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408; Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 : [1986] 1 SCR 590; Machander v. State of Hyderabad AIR 1955 SC 792 : [1955] 2 SCR 524; Gopi Chand v. Delhi Admn AIR 1959 SC 609 : 1959 Crl. L. J. 782; Tyron Nazareth v. State of Goa (1994) 3 Suppl. SCC 321; S. Guin v. Grindlays Bank Ltd. (1986) 1 SCC 654 : [1985] 3 Suppl. SCR 818; Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC
225 : [1991] 3 Suppl. SCR 325 ; Hussainara Khatoon
(1) v. State of Bihar (1980) 1 SCC 81 : [1979] 3 SCR 169; Hussainara Khatoon (3) v. State of Bihar (1980)
1 SCC 93; Raghubir Singh v. State of Bihar (1986) 4 SCC 481; Kartar Singh v. State of Punjab (1994) 3 SCC 569; Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158; Ankush Maruti Shinde and Others v. State of Maharashtra, (2009) 6 SCC 667; Ambadas Laxman Shinde and Others v. State of
Maharashtra (2018) 14 SCALE 730 : (2018) 18 SCC 788; Ankush Maruti Shinde and Others v. State of Maharashtra (2019) SCC Online SC 317; Imtiyaz
Ramzan Khan v. State of Maharashtra (2018) 9 SCC 160; Imtiyaz Ramzan Khan v. State of Maharashtra (2018) 9 SCC 163; V. K. Sasikala v. State Represented by Superintendent of Police (2012) 9 SCC 771 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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