Supreme Court of India
MOHD. HUSSAIN @ JULFIKAR ALIversusTHE STATE (GOVT. OF NCT) DELHI
- Citation
- 2012 INSC 16
- Decided
- 11 January 2012
- Disposal
- Matter referred to larger bench
- Bench
- H L DATTU
Holding
The conviction and death sentence were set aside because the trial was not fair due to denial of legal aid, and the case was remanded for fresh disposal with a direction to provide a state‑appointed counsel.
Summary
An explosion on a Delhi bus in 1997 killed four people and injured twenty‑four. Mohd. Hussain @ Julfikar Ali, a Pakistani national, was charged under Sections 302, 307 IPC and Section 3 of the Explosives Substances Act and was convicted and sentenced to death. The trial proceeded for years with the accused largely unrepresented; most prosecution witnesses (56 of 65) were examined without any defence counsel present, and cross‑examination was largely absent. The appellant argued that the denial of legal aid violated his constitutional right to a fair trial under Articles 21, 22 and the provisions of the Code of Criminal Procedure. The Supreme Court held that the trial was fundamentally unfair because the state failed to appoint effective counsel, breaching Sections 303‑304 Cr.P.C. and international human‑rights standards, and therefore set aside the conviction and death sentence, remanding the case for a fresh trial with a state‑appointed lawyer. The appeal was allowed and the conviction and sentence were vacated.
Issues considered
- The trial court’s failure to provide a defence counsel throughout the trial violated the accused’s right to a fair trial under Articles 21 and 22 of the Constitution and Sections 303‑304 of the Cr.P.C.
- Whether the conviction and death sentence should be set aside on the ground of denial of legal aid and lack of cross‑examination.
- Whether the case should be remanded for a fresh trial with state‑appointed counsel or the conviction should be upheld despite procedural deficiencies.
- The impact of the elapsed time on the feasibility of a de novo trial.
Legislation cited
Subjects
legal aidright to counselfair trialdeath penaltycross‑examinationSection 304 CrPCArticle 21Article 22international human rightscapital punishmentprocedural fairness
Judgment
[2012] 1 S.C.R. 64
A MOHD. HUSSAIN @ JULFIKAR ALI
v.
THE STATE (GOVT. OF NCT) DELHI
(Criminal Appeal No. 1091 of 2006)
JANUARY 11, 2012
B
[H.L. DATIU AND CHANDRAMAULI KR. PRASAD, JJ.]
Penal Code, 1860 - ss. 3021307 - Explosives Substances
Act, 1908 - s. 3 - Explosion in bus - Death of 4 persons and
C 24 persons sustained serious injuries - Capital punishment -
Conviction of appellant alongwith death sentence for offences
ulss. 3021307 and s. 3 of the 1908 Act by the courts below -
Challenged, on the ground that he was not given the
assistance of a lawyer to defend himself during the trial - Held:
o In view of difference of opinion as regards the issue whether
the matter requires to be remanded for de novo trial of the
appellant after giving him the assistance of a counsel, matter
referred to the larger Bench.
E An explosion took place inside a bus in which four
passengers died and 24 persons sustained serious
injuries. Investigations were carried out and on the basis
of the information received suspicion arose as to
involvement of the appellant, national of Pakistan in the
incident. The appellant was convicted and sentenced to
F death for commission of offences under Sections 302/307
IPC and Section 3 of the Explosives Substances Act,
1908 by the trial court. The trial court filed a Reference
for confirmation of death sentence. The High Court
allowed the Reference and dismissed the appeal filed by
G the appellant.
The appellant pleaded before the trial court as also
the High Court that he was not given a fair and impartial
trial and was denied the right of a counsel. During the
H 64
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 65
OF NCT) DELHI
committal proceedings before the Magistrate, the A
appellant was assisted by counsel 'V' employed by the
State. When the case was committed to the Court of
Sessions, counsel 'F' was employed by the State to
assist the appellant but he disappeared from the scene
before the conclusion of the trial. The court did not B
appoint any counsel to defend his case. Examination of
56 witnesses including the eye-witnesses and the
investigating officer was done when accused was not
represented by an advocate. None of the 56 witnesses
were cross-examined by the appellant. During the last c
stages of the trial a counsel was appointed. She filed an
application to cross-examine only one of the prosecution
witnesses and the same was allowed.
Therefore, the appellant filed the instant appeal.
D
Referring the matter to the larger Bench, the Court
HELD:
Per Dattu J:
1.1. The records would disclose that during the
committal proceedings before the Magistrate, the
appellant was assisted by a counsel 'V' employed by the
State. He continued till the case was committed to the
Court of Sessions Judge. Before the said court, 'F' was F
employed by the State to assist the appellant. He
participated in the proceedings before the Sessions
Judge only on few days of the trial. After he stopped
attending the proceedings, that too at the fag end of the
trial, another counsel was appointed to assist the G
appellant. The record further discloses that immediately,
on completion of the investigation, a charge .sheet
punishable under Section 302/307/120-B of the IPC read
with Section 3/4/5 of the Explosive Substances Act was
filed in the court of Metropolitan Magistrate against the H
66 SUPREME COURT REPORTS [2012) 1 S.C.R.
A appellant and others by the prosecuting agency. After
completing the necessary formalities, the case was
committed to the Court of Sessions by the Metropolitan
Magistrate. The Sessions Judge, after discharging the
other accused persons, had framed charges against the
B appellant under Section 302/307 of the IPC read with
Section 3/4 of the Explosive Substances Act, to which,
the a'lpellant denied his guilt and claimed to be tried. The
appellant was initially assisted by a counsel employed by
the Sessions Judge. However, in the mid way, the
c counsel disappeared from the scene, that is, before
conclusion of the trial. It is apparent from the records that
he was not asked whether he is able to employ counsel
or wished to have counsel appointed. When the parties
were ready for the trial, no one appeared for the accused.
The Court did not appoint any counsel to defend the
0
accused. Of course, if he had a defence counsel, it was
not necessary for the court appointing anybody as a
counsel. If he did not have a counsel, it is the mandatory
duty of the court to appoint a counsel to represent him.
The record reveals that the evidences of 56 witnesses,
E out of the 65 witnesses, examined by the prosecution in
support of the indictment, including the eye witnesses
and the Investigating Officer, were recorded by the trial
court without providing a counsel to the appellant. The
record also reveals that none of the 56 witnesses were
F cross-examined by the accused/appellant. It is only
thereafter, the wisdom appears to have dawned on the
trial court to appoint a counsel on 04.12.2003 to defend
the appellant. The evidences of the prosecution
witnesses from 57 to 65 were recorded in the presence
G of the freshly appointed 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
H court and the counsel had performed the formality of
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 67
OF NCT) DELHI
cross-examining this witness. In this casual manner, the A
trial, in a capital punishment case, was concluded by the
trial court. It would, 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 oor at the B
time of recording of the evidence of the prosecution
witnesses. The accused did not have the aid of the
counsel in any real sense, althoi.tg_!l, he was as much
entitled to such aid during the period of trial. The record
indicates that the appointment of counsel and her c
appearance during the last stages of the trial was rather
proforma than active. It cannot seriously be doubted at
this late date that the right of cross-examination is
included in the right of an accused in a criminal case, to
confront the witnesses against him not only on facts but
0
also to discredit the witness by showing that his
testimony-in-chief was untrue and unbiased. [Paras 8 and
9] [97-D-H; 98-A-H; 99-A-B]
1.2. Every person has a right to a fair trial by a
competent court in the spirit of the right to life and E
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. [Para 11] [100-D-E] F
1.3. The prompt disposition of criminal cases is to be·
commended and encouraged. But in reaching that result,
the accused charged with a serious offence must not be
stripped of his valuable right of a fair and impartial trial. G
To do that, would be negation of concept of due process
of law, regardless of the merits of the appeal. The Cr.P.C.
provides that in all criminal prosecutions, the accused
has a right to have the assistance of a counsel and the
Cr.P.C. also requires the court in all criminal cases, where H
68 SUPREME COURT REPORTS [2012] 1 S.C.R.
A the accused is unable to engage counsel, to appoint a
counsel for him at the expenses of the State. Howsoever
guilty the appellant upon the inquiry might have been, he
is until convicted, presumed to be innocent. It was the
duty of the court, having these cases in charge, to see
B that he is denied no necessary incident of a fair trial. In
the instant case, not only the accused was denied the
assistance of a counsel during the trial and such
designation of counsel, as was attempted at a late stage,
was either so indefinite or so close upon the trial as to
C amount to a denial of effective and substantial aid in that
regard. The court ought to have seen to it that in the
proceedings before the court, the accused was dealt with
justly and fairly by keeping in view the cardinal principles
that the accused of a crime is entitled to a counsel which
may be necessary for his defence, as well as to facts as
D to law. The same yardstick may not be applicable in
respect of economic offences or where offences are not
punishable with substantive sentence of imprisonment
but punishable with fine only. The fact that the right
involved is of such a character that it cannot be denied
E without violating those fundamental principles of liberty
and justice which lie at the base of all the judicial
proceedings. The necessity of counsel was so vital and
imperative that the failure of the trial court to make an
effective appointment of a counsel was a denial of due
F process of law. It is equally true that the absence of fair
and proper trial would be violation of fundamental
principles of judicial procedure on account of breach of
mandatory provisions of Section 304 Cr.P.C. [Para 17)
[111-H; 112-A-G]
G
1.4. After -carefully going through the entire records
of the trial court, it is found that the appellant/accused
was not provided the assistance of a counsel in a
substantial and meaningful sense. To hold a'nd decide
H otherwise, would simply to ignore actualities and also
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 69
OF NCT) DELHI
would be to ignore the fundamental postulates, already A
adverted to. [Para 18] [112-G-H; 113-A]
1.5. The submission 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 8
Sessions Judge and the conviction and sentence passed
against the accused, cannot be accepted. The Cr.P.C.
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 C
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 counsel is a principal part of the right to fair trial. If
these minimum safeguards are not provided to an D
accused; that itself is "prejudice" to an accused. [Para
19] [113-8-E]
Rafiq Ahmad alias Rafi vs. State of UP. (2011) 8 SCC
300 - referred to. E
1.6. The judgments impugned cannot be sustained.
The conviction and sentence imposed by the Additional
Sessions Judge is set aside and the judgment and order
passed by the High Court and remand the case to the trial
court for fresh disposal in accordance with law with a F
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 the incident is of the year 1997, the trial G
court is directed to conclude the trial as expeditiously as
possible at any rate within an outer limit of three months
from the date of communication of this order and report
the same to this Court. [Para 21] [115-D-E]
H
70 SUPREME COURT REPORTS (2012] 1 S.C.R
A Kartar Singh vs. State of Punjab (1994) 3 SCC 569:
1994 (2) SCR 375; Jayendra Vishnu Thakur Vs. State of
Maharashtra (2009) 7 SCC 104: 2009 (8) SCR 591; Zahira
Habibullah Sheikh (5) vs. State of Gujarat (2006) 3 SCC 37 4:
2006 (2 ) SCR 1081; M. H. Hoskot vs. State of Maharashtra
B 1978 (3) sec 544: 1979 (1) SCR 192; Mohd. Sukur Ali vs.
State of Assam (2011) 4 SCC 729: 2011 (3) SCR 209;
Hussainara Khatoon and Ors. vs. Home Secy., State of Bihar
(1980) 1 SCC 98 :1979 (3) SCR 532; Khatri Vs. State of Bihar
(1981) 1 SCC 627: 1981 (2) SCR 408; Ram Awadh vs. State
c of U.P. 1999 Cr.L.J. 4083 - referred to.
Per Chandramauli Kr. Prasad, J:
1.1. The trial court, during all this long period, did not
realize that the appellant was not represented by any
D 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 thus, a new counse.I be appointed. It is on
the appellant's prayer that 'SB', Advocate present in the
E court on the said date, was appointed to defend the
appellant at the expenses of the State. Thereafter, on
22nd December, 2003, in the presence of said 'SB',
counsel for the appellant, evidences of doctors-P.W.57
and 58; and P.W.59- ASI were recorded. Thereafter, the
F statements of the witnesses from P.Ws.60 to 65 were
recorded in the presence of appellant's counsel, 'SB'.
Ultimately the statement of the appellant was recorded on
6th October, 2004 and argument on behalf of prosecution
was heard in part. Next hearing took place on 8th
G October, 2004 when the argument on behalf of the
prosecution was concluded and the case was adjourned
to 12th October, 2004 for dP.fence argument. During all
this period the appellant was in custody. It is only when
the argument on behalf of the appellant was to be heard,
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 71.
OF NCT) DELHI
counsel representing him later i.e. 'SB' realized that the A
witnesses were examined and discharged without cross-
examination in the absence of the defence counsel and
accordingly, an application was filed for recall of P.W.1
for cross-examination. The said prayer was allowed and
P.W.1 was cross-examined and discharged on 23rd B
October, 2004. The trial court recorded on said date that
the accused had not prayed for cross-examination of any
other witness and accordingly, it heard the argument and
posted the case for judgment on 26th October, 2004. The
appellant was held guilty and sentenced. [Para 7] [118- c
G-H; 119-A-F]
1.2. While holding the appellant guilty the trial court
has not only relied upon the evidence of the witnesses
who have been cross-examined but also relied upon the
evidence of witnesses who were not cross-examined. D
The fate of the criminal trial depends upon the
truthfulness or otherwise of the witnesses and, therefore,
it is of paramount importance. To arrive at the truth, its
veracity should be judged and for that purpose cross-
examination is an acid test. It tests the truthfulness of the E
statement made by a witness on oath in examination-in-
c hief. Its purpose is to elicit facts and materials to
establish that the evidence of witness is fit to be rejected.
The appellant in the instant case was denied this right
only because he himself was not trained in law and not F.
given the assistance of a lawyer to defend him. Poverty
also came in his way to engage a counsel of his choice.
[Para 8] [119-G-H; 120-A-B]
1.3. The conviction and sentence can be inflicted only
on culmination of the trial which is fair and just. There is G
no manner of doubt that in the adversary system of
criminal justice, any person facing trial can be assured a
fair trial only when the co.unsel is provided to him. Its
roots are many and find places in manifold ways. It is
H
72 SUPREME COURT REPORTS [2012] 1 S.C.R.
A internationally recognized by covenants and Universal
Declaration of Human Rights, constitutionally guaranteed
and statutorily protected. [Para 9] [120-C-D]
1.4. Article 14 of the International Covenant on Civil
and Political Rights guarantees to the citizens of nations
8 signatory to that covenant various rights in the
determination of any criminal charge and confers on them
the minimum guarantees. Article 14(3)(d) entitles the
person facing the criminal charge either to defend himself
in person or through the assistance of a counsel of his
C choice and if he does not have legal assistance, to be
informed of his right and provide him the legal assistance
without payment in case he does not have sufficient
means to pay for it. It is accepted in the civilized world
without exception that the poor and ignorant man is
D equal to a strong and mighty opponent before the law.
But it is of no value for a poor and ignorant man if there
is none to inform him what the law is. In the absence of
such information that courts are open to him on the same
terms as to all other persons the guarantee of equality is
E illusory. The said International Covenant on Civil and
Political Rights guarantees to the indigent citizens of the
member countries the right to be defended and right to
have legal assistance without payment. Not only this, the
Universal Declaration ·on Human Rights ensures due
F process and Article 10 thereof provides that everyone is
entitled in full equality to a fair hearing by an independent
and impartial tribunal in the determination of his rights
and obligations and of any criminal charges against him.
Article 11 of Universal Declaration of Human Rights
G guarantees everyone charged with a penal offence all the
guarantees necessary for the defence. [Paras 10 and 11]
[120-E-F; 121-D-H; 122-A-B]
1.5. Article 21 of the Constitution of India commands
in emphatic terms that no person shall be deprived of his
H life or personal liberty except according to the procedure
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 73
OF NCT) DELHI
established by law and Article 22 (1) thereof confers on A
the person charged to be defended by a legal practitioner
of his choice. Article 39 A 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 B
disabilities. [Para 12) [122-E-F]
1.6. Besides the International Covenants and
Declarations and the constitutional guarantees Section
303 Cr.P.C. gives right to any person accused of an
offence before a criminal court to b& defended by a C
pleader of his choice. Section 304 Cr.P.C. contemplates
legal aid to accused facing charge in a case triable by
Court of Sessions at State expense. From a plain reading
of Section 304 Cr.P.C., it is evident that in a trial before
the Court of Sessions if the accused is not represented D
by a pleader and has not sufficient means, the court shall
assign a pleader for his defonce at the expense of the
State. The entitlement to free legal aid is not dependent
on the accused making an application to that effect, in •
fact, the court is obliged to inform the accused of his right E
to obtain free legal aid and provide him with the same.
[Para 13] [122-G-H; 123-A, G-H; 124-A]
1.7. The right of a person charged with crime to have
the services of a lawyer is fundamental and essential to
fair trial. The right to be defended by a legal practitioner, F
flowing from Article 22 (1) of the Constitution has further
been fortified by the introduction of the Directive
Principles of State Policy embodied in Article 39 A of the
Constitution by the 42nd Amendment Act of 1976 and
enactment of sub-section 1 of Section 304 of the Code G
of Criminal Procedure. Legal assistance to a poor person
facing trial whose life and 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 H
74 SUPREME COURT REPORTS [2012) 1 S.C.R.
A 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
B 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
c 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
0
does not know how to establish his innocence. [Para 14)
[124-8-G]
1.8 The accused is a Pakistani and seems illiterate.
He asked for engagement of a counsel to defend him at
E State expenditure which was provided but unfortunately
for him the counsel so appointed remained absent and
a large number of witnesses have been examined in the
absence of the counsel. Those witnesses have not been
cross-examined and many of them have been relied upon
F for holding the appellant guilty. The judge in seisin of the
trial forgot that he has an overriding duty to maintain
public confidence in the administration of justice, often
referred to a duty to vindicate and uphold the majesty of
law. He failed to realize that for an effective instrument in
G dispensing justice he must cease to be a spectator and
a recording machine but a participant in the trial evincing
·intelligence and active interest so as to elicit all relevant
materials necessary for reaching the correct conclusion,
to find out the truth and administer justice with fairness
H and impartiality both to the parties and to the community
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 75
OF NCT) DELHI
itself. Fundamental principles based on reason and A
reflection in no uncertain term recognize that the
appellant haled into court in the adversary system of
criminal justice and ultimately convicted and sentenced
without a fair trial. [Para 15) [124-H; 125..A-D]
B
Hussainara Khatoon & Ors. v. Home Secy. State of Bihar
(1980) 1 sec 98:1979 (3) SCR 532- referred to.
1.9. The direction for his de novo trial cannot be
given at such a distance of time. For an occurrence of
1997, the appellant was arrested in 1998 and since then C
he is in judicial custody. The charge against him was
framed on 18.02.1999 and it took more than five years for
the prosecution to produce its witnesses. True it is that
in the incident four persons have lost their lives and
several innocent persons have sustained sev~ injuries. C
Further, the crime was allegedly committed by a Pakistani
but these factors do not cloud the reason. After all, India
is a democratic country and governed by rule of law. The
appellant must be seeing the hangman's noose in his
dreams and dying every moment while awake from the E
day he was awarded sentence of death, more than seven
years ago. The right of speedy trial is a fundamental right
and though a rigid time limit is not countenanced but in
the facts of the instant case, after such a distance of time
it would be travesty of justice to direct for the appellant's F
de novo trial. By passage of time, it is expected that many
of the witnesses may not be found due to change of
address and various other reasons and few of them may
not be in this world. Thus, any time limit to conclude the
trial would not be pragmatic. [Para 16) [126-B-F] G
1.10. The conviction and sentence of the appellant is
vitiated, not on merit but on the ground that his trial was
not fair and jusl [Para 17] [126-G]
H
76 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 1.11. Appellant admittedly is a Pakistani, he has
admitted this during the trial and in the statement under
Section 313 of the Code of Criminal Procedure. His
conviction and sentence is found illegal and the natural
consequence of that would be his release from the prison
B but in the facts and circumstances of the case, it is
directed that he be deported to his country in accordance
with law and till then he would remain in jail custody.
Appellant's conviction and sentence is set aside with the
aforesaid direction. [Paras 18 and 19] [126-H; 127-A-B]
c Case Law Reference:
Per H.L. Dattu J
1994 (2) SCR 375 Referred to. Para 9
D 2009 (8) SCR 591 Referred to. Para 10
2006 (2) SCR 1081 Referred to. Para 11
1979 (1) SCR 192 Referred to. Para 12
2011 (3) SCR 209 Referred to. Para 13
E
1979 (3) SCR 532 Referred to. Para 14
1981 (2) SCR 408 Referred to. Para 15
1999 Cr.L.J. 4083 Referred to. Para 16
F
(2011 > 8 sec 300 Referred to. Para 19
Per Chai1dramauli Kr. Prasad J
1979 (3) SCR 532 Referred to. Para 15
G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1091 of 2006.
From the Judgment & Order dated 04.08.2006 of the High
Court of Judicature at Delhi Bench in Criminal Appeal No. 41
H of 2005.
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 77
OF NCT) DELHI
Md. Mobin Akhtar, Arun Kumar Beriwal for the Appellant. A
J.S. Airy, V.K. Biju, Rahul Kaushik, Anil Katiyar, D.S.
Mahra for the Respondent.
The Judgments & order of the Court was delivered by
B
H. L. DATIU, J. 1. A convict, who is facing the threat of
death gallows, is before us in this appeal. He is an illiterate
foreign national and unable to engage a counsel to defend
himself. He is tried, convicted and sentenced to death by the
Additional Sessions Judge, Delhi in Sessions Case No.122 of C
1998 dated 03.11.2004 without assignment of counsel for his
defence. Such a result is confirmed by the High Court on a
reference made by the Trial Court for confirmation of death
sentence and has dismissed the appeal filed by the appellant
vide its order dated 04.08.2006. D
2. The convict, (hereinafter referred to as "appellant") is
charged, convicted and sentenced under Sections 302/307 of
Indian Penal Code (in short, "IPC") and also under Section 3
of The Explosive Substances Act, 1908. The case of the
prosecution, as noticed by the High Court, which appears to E
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 F
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 G
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
H
78 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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
B
Suresh (PW-41), who was one of the two policemen on
duty at the bus stop of Rampura, a case under Section 307
IPC and Section 3, 4 and 5 of the Explosive Substances
Act was registered at Punjabi Bagh police station.
Investigation commenced immediately. With the death of
c some of the injured persons on the day of the incident itself
Section 302 IPC was also added. Hunt for the culprits
responsible for that macabre incident also started.
However, for over two months nobody could be nabbed.
D 4. It appears that as a result of different incidents of bomb
blasts in Delhi including the present one the intelligence
agencies became more active and started gathering
information about the incidents of bomb blasts in the city.
It came to light that some persons belonging to terrorist
E organizations were actively operating in the city of Delhi
for causing terror by killing innocent people and causing
damage to public property by exploding bombs. On the
basis of secret information the police raided some houses
in different parts of Delhi on 27.02.1998 and from those
F houses hand grenades and material used for making
bombs was recovered in large quantity. The chemicals
recovered were sent to CFSL, which confirmed that the
same were potassium chlorate and sulphuric acid and
were opined to be constituents of low explosives. Some
persons were arrested also and during interrogation they
G
had disclosed to the police that they were members of a
terrorist organization and their aim was to create terror and
panic in different parts of the country by exploding bombs
to take revenge for the killings of innocent muslims (sic.)
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 79
OF NCT) DELHI [H.L. DATIU, J.]
in India and further that they had come to India for Jehad. A
On 27.02.1998 itself the police had registered a case vide
FIR No.49 of 1998 under Sections 121/121-A IPC and
Sections 3, 4 & 5 of the Explosive Substances Act as well
under Section 25 of the Arms Act at Main Delhi Railway
Station. On the basis of information provided by the B
apprehended terrorists the police made more arrests
including that of one Mohd. Hussain (who now is the
appellant before us in Crl. A. No.41 of 2005 and reference
to him will now onwards be made as 'the appellant'). The
appellant was apprehended when his house in Lajpat c
Nagar was raided pursuant to the information given by
other apprehended terrorists. As per the prosecution case
the appellant himself had opened the door on being
knocked by the police and on seeing the police party he
had tried to fire at the policemen from the pistol which he D
was having in his hand at that 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 E
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 F
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 G
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 hact -
boarded his bus from Paharganj bus stop along with a
H
80 SUPREME COURT REPORTS (2012] 1 S.C.R.
A rexine bag for going to Nangloi but instead of going upto
Nangloi he had got down from the bus at Karol Bagh
leaving his rexine bag underneath the seat which he had
taken and which was near the seat of the conductor. The
conductor had given the description of that passenger. As
.B per the prosecution case the explosion had taken place
below that seat which that passeng.er had occupied and
underneath which he had kept his rexine bag. Although on
21-03-98 the appellant did not object to holding of
identification parade but he refused to joint test
c identification parade which was fixed for 23-03-98 stating
that police had taken his photographs.
5. During the investigation of the present case the debris
collected from the place of bomb blast and some
damaged pieces of the bus etc. were sent to Central
D Forensic Laboratory (CFSL) and after examination it was
revealed that in the seized material contained explosive
mixture of chlorate, Nitrate, Sulphate and sugar were
detected. Mixture of these chemicals, as per CFSL, report
Ex. PW-34/A, is used for making explosives/bombs and
E the mixture could have been initiated by the action of
sulphuric acid and the mixture was "explosive substance".
6. On completion of investigation of the present case the
police filed a charge-sheet in Court against four accused
persons for the commission of offences under Sections
F
302/307/120-B IPC and Sections 3 and 4 of the Explosive
Substances Act. In due course the four persons were
committed to Sessions Court. The learned Additional
Sessions Judge vide order dated 18.2.1999 discharged
three accused persons namely, Abdul Rehman, Mohd.
G
Maqsocid and Ezaz Ahmed while against fourth accused
Mohd. Hussain @ Julfikar (the appellant herein) charges
under Sections 302/307 IPC and Section 3 and in the
alternative u/s 4(b) of the Explosive Substances Act were
framed. The appellant had pleaded not guilty to the
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 81
OF NCT) DELHI [H.L. DATTU, J.]
charges framed against him and claimed to be tried." A
3. The prosecution had examined as many as 65
witnesses and on conclusion of prosecution evidence,
statement of the appellant was recorded under Section 313 of
the Code of Criminal Procedure (in short, "Cr.P.C"), who had 8
denied his guilt and pleaded false implication. The Trial Court,
upon appreciation of evidence of the prosecution witnesses,
held the appellant guilty of the charges and accordingly,
imposed death penalty. The conviction and sentence is affirmed
by the High Court. At this stage itself, it is relevant to notice that C
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 :
D
"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 E
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 F
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 Ses&ions Judge himself should have taken
active part at the time of recording of evidence of G
prosecution witnesses by putting questions to the
witnesses who had been examined in the absence of
counsel for the accused. It was contended that the right of .
the accused ensured to him under Articles 21 and 22 of
the Constitution of India for a fair trial has been, thus, H
82 SUPREME COURT REPORTS [2012] 1 S.C.R.
A violated. In support of this argument which, in fact, appears
to us to be the sheet anchor for the appellant, Mr. Siddharth
Lutha cited some judgments also of the Hon'ble Supreme
Court which are reproduced as AIR 1997 SC 1023, 1994
Supp. (3) sec 321, AIR 1986 sc 991and1983 (Ill) sec
B 307. Onejudgment of Gauhati High Court reported as 1987
(1) Crimes 133, "Arjun Karmakar Vs. State of Assam"was
also relied upon by Mr. Luthra.
46. There can be no dispute about the legal proposition
put forward by the learned counsel for the appellant that it
c is the duty of the Court to see and ensure that an accused
in a criminal trial is represented with diligence by a
defence counsel and in case an accused during the trial
remains unrepresented because of poverty etc., it
becomes the duty of the Court to provide him legal aid at
D State expense. We find from the judgment of the trial Court
that this point was raised on behalf of the accused during
the trial also by the amicus curiae provided to the accused
when his private counsel stopped appearing for him. The
learned trial Court dealt with this arguments in para no.101
E of the judgment which is as under:-
"lt is next submitted that material witnesses have not been
cross examined by the accused and as such, their
testimony cannot be read against him. I may add that from
F the very beginning of the trial, the accused has been
represented by a counsel Sh. Riaz Mohd. and he had
cross-examined some of the witnesses. Later on, when
Sh. Riaz Mohd. did not appear in the Court on some dates,
Mrs. Sadhna Bhatia was appointed as Amicus-Curiae to
defend the accused at State expenses. If the accused did
G
not choose to cross examine some witnesses, he cannot
be forced to do so. Moreover, later one accused prayed
for cross-examination of PW-1 Sh. Darshan Kumar, which
was allowed though it was filed at a belated stage after a
long period of time. The accused did not desire any other
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 83
OF NCT) DELHI [H.L. DATTU, J.]
witness to be cross examined. Not only this, statement of A
PW-1 Sh. Darshan Kumar was recorded on 18-05-1999
and he was also present on 3-6-1999 and 13-08-1999, 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 B
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 C
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 D
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.
E
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 Cr. P.C. and, in particular, that he was not .
given a fair and impartial trial and was denied the right of a
counsel. Since the aforesaid issue is of vital importance, I have F
thought it fit to answer that issue before I discuss the merits of
the appeal. Therefore, firstly, I will consider the issue; whether
the appellant was given a fair and impartial trial and, whether
he was denied the right of a counsel. To answer this issue, it
may not be necessary to discuss the facts of the case or the G
circumstances surrounding the prosecution case except so far
they reflect upon the aforesaid issue.
6. To answer the aforesaid issue, it is necessary to look
at the proceedings of the Trial Court which are as under: H
84 SUPREME COURT REPORTS [2012] 1 S.C.R.
A "6.7.98
Pr: APP
All accused in j/c.
All accused stated that they are not in position to engage
any lawyer and be provided with a lawyer from legal .aid.
B Legal assistance be provided to all accused from legal aid.
All accused requested further time for making scrutiny of
documents. Allowed. Put up on 20.7.98 for scrutiny..
Sd/-
C MM/Delhi
2017198
Pr: APP
0 All accused in judicial custody with Sh. V.K. Jain.Adv.
Sh. Jain requested time for making scrutiny of documents.
Sh. Jain sates that he is applying for further time
(illegible). _ _
E
Allowed.
Put up on 29/7/98 for scrutiny.
Sd./-
F MM/Delhi
20.7.98
2917/98
Pr: APP
G All accused in j/c with Sh. V.K. Jain.Adv. from Legal Aid.
Shri Jain requests for further time.
Allowed. Put up on 6/8/98 for scrutiny.
H Sd./-
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 85
OF NCT) DELHI [H.L. DATIU, J.]
MM/Delhi A
29.7.98
6.8.98
Pr: APP
B
All accused in j/c with Sh. Vijay Kr. Jain,Adv.
Sh. Jain stated that all accused have been supplied with
complete copies of documents filed alongwith the
chargesheet. Hence provision of Sec. 207 Cr.P.C. are
complied with. c
Present case also pertains to offence punishable u/s. 302/
307 IPC & 3, 4, 5 Explosive Substances Act which are
exclusively triable by Court of Sessions. Present case is
liable to be commit to court of sessions. I accordingly 0
commit the present case to court of Sessions.
Accused are directed to appear before court of sessions
on 20.8.98.
Ahlmad is directed to send the file complete-in all respects E
to court of sessions.
Notice to PP be also issued.
Sd./-
MM/Delhi F
6.8.98
18/5/99
Pr: Spl PP for State.
G
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.
H
86 SUPREME COURT REPORTS [2012) 1 S.C.R.
A PW.1 is bound down for the next date of hearing.
PW.2 examined and discharged.
No other PW. Present except 10 Satya Prakash present.
B To come up for remaining evidence on 3/6/99.
Sd./-
ASJ/Delhi
18/5/99
3/6/99
c
Pr: Spl. PP for the State.
Accused present in j/c with counsel.
PW.3, 4 present, examined and discharged.
D
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.
E Considering the request, both the witnesses are bound
down for next date of hearing.
Inspector Satya Prakash 10 is also and ischarged (sic.).
Now to come for P.E. on 20/7/99.
F Sd/-
ASJ/Delhi
3/6/99
20.7.99
G Pr: Spl PP for the State
Accused in J.C. with Sh. Feroz Khan, Adv., Amicus Curae
(sic.)
PW 5, 6 & PW7 are examined and discharged. PW
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 87
OF NCT) DELHI [H.L. DATIU, J.]
Darshan Kumar served but absent despite service. Issue A
B/W in the sum of Rs.500/-. PW Satya Prakash, lnsp. is
reported to be on leave upto 26.7.99. Now to come up for
remaining P.E. for 13.8.99.
Sd./-
ASJ B
20.7.99
13.8.99
Present : Spl. PP for the State
c
Accused in j/c
PW1, 8 and 9 examined and discharged.
No other PW is present except 10 of this case.
D
PW Santosh Kr. Jha has shifted to Viii. Ghagjai, Distt.
Madhumani Panna, P.S. Mani Patti, Post Office Ghagjari,
Bihar. He be summoned at his new address.
PW Ashok Kumar could not be served. He be served
though 10. SI Ashok Kumar is served but he sent a request E
that he had gone to High Court.
To come up for RPE on 1.9.99.
Sd./- F
ASJ/Delhi
4/10/99
Pr: Spl. PP for the State. G
Accused in J/C.
PW 10, 11, 12 & 13 present, examined and discharged.
PW. Santosh Kumar Jha is served but absent despite H
88 SUPREME COURT REPORTS !2012] 1 S.C.R.
A service. PW. Ashok Kumar served but sent request that
he had to attend a duty and may be exempted today.
10 present is discharged for tod'ay. Witnesses be
summoned again.
B List the matter for evidence on 2/11/99.
Sd./-
ASJ/Delhi
4/11/99 (sic.)
c 2.11.99
Present: As before.
PW 14 examined and discharged.
D No other PW is present except 10 Satya Prakash. Mother
of Sunil Kr. Sharma is present and submits that he is not
in a position to move from bed. Considering her request
and there are other number of witnesses to prove the
explosion in the bus. Let his name be dropped from the
E list of witness and need not be summoned.
List the matter for RPE on 3.12.99.
Sd./-
ASJ/Delhi
F 2717/2000
Pr: Addi. PP for the State.
Accused in J/C.
G PWs.15 to 17 examined and discharged.
PWs. SI Om Prakash and SI Satya Prakash, 10s have sent
requests. PWs. Dr. K. Goyal and Dr. Ashok Jaiswal are
unserved. Re-summon.
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 89
OF NCT) DELHI [H.L. DATTU, J.]
Now, List the case for RPE on 25/08/2000. A
Sd./-
ASJ/Delhi
20/9/2000
Pr: Addi. PP for the State. B
Accused in J/C.
PWs.18 & 19 examined, cross-examined and discharged.
No other witness served for today. c
Now, list the matter for P.E. on 6/11/2000.
Sd./-
ASJ/Delhi
D
29.11.2000
Present: Addi. PP for the State.
Accused in j/c.
E
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 10 on
10.1.2001. F
Sd./-
ASJ/Delhi
10.1.2001
G
Present: Spl PP for State.
Accused in J/C.
PW-21 and 22 examined, cross-examined and
discharged. No other PW is present except 10. H
90 SUPREME COURT REPORTS [2012) 1 S.C.R.
A 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./-
B ASJ/Delhi
14/2/2001
Pr: Addi. PP for the State.Accused in J/C.
PW. 23 & 24 examined, cross-examined and
c discharged.
No other witness served for today.
10, SI Om Prakash is absent despite service. Issue B/Ws
0 against him in the sum of Rs.500/-.
Now, put up the case for entire RPE on 14/3/2001.
Sd./-
ASJ/Delhi
E 14.3.2001
Present: Spl. PP for the State.
Accused in J/C with counsel.
F PW-25, PW-26, PW-27 examined, cross-examined and
discharged.
No other witness is present, as none else has been
served.
G Now list the case for P.E. on 11.4.2001.
Sd./-
ASJ/Delhi
11.4.2001
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 91
OF NCT) DELHI [H.L. DATTU, J.]
Present: Sp. PP for the State. A
Accused in J/C.
PW-28 examined, cross-examined and discharged.
Witnesses Sunil Kumar, Md. Naria, Bhagirat Prasad and B
Raj Kumar Verma are reported to be not residing at the
given addresses. They all be summoned through 10.
No other PW is present.
Last opportunity be granted to the prosecution to lead the C
entire R.P.E.
Now to come up for (sic.) 8.5.2001.
Sd./-
ASJ/Delhi D·
41712001
Pr. Spl. PP for the State.
Accused in J/C.
PWs. 29, 30, 31 & 32 examined, cross-examined and E
discharged.
No other witness is served for today.
Now put up the case for entire RPE on 13/8/01.
F
Sd./-
ASJ/Delhi
11.2.2002
Present: Addi. PP for the State.
Accused is present in J/C. G
PW-33 examined, cross-examined and discharged.
No other PW is present except the 10.
Now to come up for RPE on 26.3.2002.
H
92 SUPREME COURT REPORTS [2012) 1 S.C.R.
A Sd.1-
ASJ/Delhi
26/3/02
Pr: Addi. PP for the State.
B Accused in J/C.
PW.34, 35, 36 & 37 examined, cross-examined and
discharged.
No other PW. is present.
c Now to come up for RPE on 7/5/02.
Sd./-
ASJ/Delhi
24/09/02
o Present: Spl. PP for the State.
Accused in J/C.
PW-42 & PW~43 examined, cross-examined and
discharged.
E No other PW is present.
Now to come up for entire R.P.E. on 18.10.02.
Sd./-
ASJ/Delhi
F 18/10/02
Pr. Sh. Jitender Kakkar, Addi. PP for the State.
Accused in J/C.
PW.44 & PW.45 examined, cross-examined and
G discharged.
No other PW. is present.
Now list the matter for entire RPE on 13/12/02.
Sd./-
H ASJ/Delhi
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 93
OF NCT) DELHI [H.L. DATIU, J.]
13.12.02 A
Present: Accused in judicial custody.
Ld. is OA leave today.
llligible_ B
17/1/2003 for RPE.
Sd./-·
Reader
13.12.02 c
25/02/03
Pr: Sh. Bakshish Singh, Spl. PP for State.
Accused in J/C with counsel.
D
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 E
granted to the prosecution to lead the entire evidence on
26.03.03.
Sd./-
ASJ/Delhi F
26/3/2003
Pr. : Addi. PP Sh. Jitender Kakkar, for the State.
Accused in J/C.
PW-48 examined, cross examined and discharged. G
No other PW is present.
·PW Vinod Kumar has not been served.
PW Vinod Kumar along with all the public witnesses be
summoned through 10 for 22.4.2003. H
94 SUPREME COURT REPORTS [2012] 1 S.C.R.
A In the interest of justice, one more opportunity is grantea
to the prosecution to lead its entire evidence for the date
fixed.
ASJ/Delhi
22.4.03
B
Present : Addi. 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
c request of Ld. APP one more opportunity is given to the
prosecution to lead entire remaining evidence. The
witnesses be summoned through 1.0. Put up for P.E. on
09.05.03.
D ASJ/Delhi
22.04.03
09105103
Present Sh. Bakshish Singh Spl. PP for the state
Accused in JC
E
PW-52 has been examined, cross-examined and
discharged. No other PW is present. None has been
served. Both the remaining witnesses be summoned
through 1.0. In the interest of justice, one more opportunity
is granted to the prosecution to read entire evidence on
F 15107/03.
ASJ/Delhi
09105/03
1102/97
G
15.07.03
Present : Accused in J.C.
Sh. Bakshish Singh, Ld. State Counsel is present
H PW-53 Ins. Data Ram has been examined, cross-
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 95
OF NCT) DELHI [H.L. DATIU, J.]
examined and discharged. No other PW except the 10 is A
present. PW Vined Kumar is absent despite service. Issue
B/w in the sum of Rs.500/-. PW Bhagirathi Prasad and
Sunil Kumar are reported to be not residing at the given
address. 10 of the present case is directed to produce
these witnesses on his own responsibility. Last opportunity B
is granted to the prosecution to lead the entire evidence
on 13.8.03.
ASJ/Delhi
15.07.03
01/09/03
c
Present : Spl. P.P. for the State
Accused in J.C.
Ins. Satya Prakash, ZO is present.
D
PW-54 & PW-55 recorded and discharged.
No other PW is present or served.
10 is discharged for today only.
Put up for RPE on 01/10/03.
E
ASJ/Delhi
01/09/03
01/10/03
Present : Spl. P.P. for the State.
F
Accused in J.C. It is 2.35 PM. Heard.
PW-56 recorded and discharged.
Ins. Tandon and one more witness Vined are present.
However, they were discharged for today as they have
some urgent work. Their prayer is allowed. Put up for RPE G
on 01/11/03. The accused is directed to bring his
advocate on next date.
ASJ/Delhi
01/10/03
7. The recording in the order sheet of the trial Judge is not H
96 SUPREME COURT REPORTS [2012] 1 S.C.R.
A accurate. I say so for the reason that examination of witnesses
from 1 to 56 was done when accused was not represented by
an advocate. I have come to this conclusion after carefully
reading the evidence of these witnesses recorded by the
learned trial Judge. By way of illustration, I have extracted
B evidence of some of the witnesses recorded on different dates
"PW 1
Darshan Kumar
c
S/o Fakir Chand, Age - 30 years, Driver, R/o 8-48,
Piragarhi, New Delhi - 43
I was working as conductor in blue line bus No. DL 1P3088
and the said bus used to ply from Nangloi to Ajmeri Gate.
D
xxxxxx
deferred as defence counsel is not available.
E
Vijay Kumar
s/o Fakir Chand, Age about 28 years, Driver, Rio C-154
Pira Garhi, Relief Camp, Delhi.
F. I am working as driver in blue line bus DL1P 3088 and the
sadi bus plies from Ajmeri Gate to Nangloi.
xxxxxx
G Nil opportunity given.
PW3
Moin Khan
H S/o Abdul Rashid Khan, Age - 22 years, service, Rio 8-
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 97
OF NCT) DEL.;, [H.L. DATIU, J.]
104, Prem Nagar, Kirari Village, Delhi. A
xxxxxx
by counsel Firoz Khan.
PW4 B
lmtiyaz Khan
S/o Rustam Khan, Age - 25 years, Machine Operator, R/
o H-10, Man Sarover Park, Riti Road, Shahdrah.
c
xxxxxx
Nil Opportunity given."
8. The records would disclose that during the committal
proceedings before the learned Magistrate, the appellant was D
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 Sessions Judge. Before the said Court, one Mr. Feroze Khan
was employed by the State to assist the appellant. He
participated in the proceedings before the Sessions Judge only E
on few days of the trial. After he stopped attending the
proceedings, that too at the fag end of the trial, another learned
counsel was appointed to assist the appellant.
9. The record further discloses that immediately, on F
completion of the investigation, a charge sheet punishable
under Section 302/307/120-B of the IPC read with Section 3/
4/5 of The Explosive Substances Act was filed in the court of
learned Metropolitan Magistrate against the appellant and
others by the prosecuting agency. After completing the G
necessary fonnalities, the case was committed to the Court of
Sessions by the learned Metropolitan Magistrate. The learned
Sessions Judge, after discharging the other accused persons,
had framed charges against the appellant under Section 302/
307 of the IPC read with Section 3/4 of The Explosive H
98 SUPREME COURT REPORTS [2012) 1 S.C.R.
A Substances Act, to which, the appellant denied his guilt and
claimed to be tried. The appellant was, initially assisted by a
learned counsel employed by the learned Sessions Judge.
However, in the mid way, the learned counsel disappeared from
the scene, that is, before conclusion of the trial. It is apparent
B from the records that he was not asked whether he is able to
employ counsel or wished to have counsel appointed. When
the parties were ready for the trial, no one appeared for the
accused. The Court did not appoint any counsel to defend the
accused. Of course, if he had a defence counsel, I do not see
c the necessity of the court appointing anybody as a counsel. If
he did not have a counsel, it is the mandatory duty of the court
to appoint a counsel to represent him. The record reveals that
the evidences of 56 witnesses, out of the 65 witnesses,
examined by the prosecution in support of the indictment,
including the eye witnesses and the Investigating Officer, were
0
recorded by the Trial Court without providing a counsel to the
appellant. The record also reveals that none of the 56 witnesses
were cross-examined by the accused/appellant. It is only
thereafter, the wisdom appears to have dawned on the Trial
Court to appoint a learned counsel on 04.12.2003 to defend
E the appellant. The evidences of the prosecution witnesses from
57 to 65 were recorded in the presence of the freshly appointed
learned counsel, who thought it fit not to cross-examine any of
those wit.nesses. Before the conclusion of the trial, she had filed
an application to cross-examine only one prosecution witness
F 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
G punishment case, was concluded by the Trial Court. It will, thus,
be sean 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
H prosecution witnesses. The accused did not have the aid of the
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 99
OF NCT) DELHI [H.L. DATTU, J.]
counsel in any real sense, although, he was as much entitled A
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. It cannot seriously be doubted at this late
· date that the right of cross-examination is included in the right B
of an accused in a criminal case, to confront the witnesses
against him not only on facts but also to discredit the witness
by showing that his testimony-in-chief was untrue and unbiased.
The purpose of cross-examination of a witness has been
succinctly explained by the Constitution Bench of this Court in c
Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 :
"278. Section 137 of the Evidence Act defines what cross-
examination means and Sections 139 and 145 speak of
the mode of cross-examination with reference to the
documents as well as 01 al evidence. It is the jurisprudence D
of law that cross-examination is an acid-test of the
truthfulness of the statement made by a witness on oath
in examination-in-chief, the objects of which are :
(1) to destroy or weaken the evidentiary value of the E
witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's
client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by F
impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-
examination are to test his veracity; to discover who he is
and what is his position in life; and'1o shake his credit by G
injuring his character."
10. The aforesaid view is reiterated by this Court in
Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7
sec 104 wherein it is observed :
H
100 SUPREME COURT REPORTS [2012] 1 S.C.R.
A " 24. A right to cross-examine a witness, apart from
being a natural right is a statutory right. Section 137 of the
Evidence Act provides for examination-in-chief, cross-
examination and re-examination. Section 138 of the
Evidence Act confers a right on the adverse party to cross-
B examine a witness who had been examined in chief,
subject of course to expression of his desire to the said
effect. But indisputably such an opportunity is to be
granted. An accused has not only a valuable right to
represent himself, he has also the right to be informed
c thereabout. If an exception is to be carved out. the statute
must say so expressly or the same must be capable of
being inferred by necessary implication. There are statutes
like the Extradition Act, 1962 which excludes taking of
evidence vis~a-vis opinion."
D 11. In my view, every person, therefore, 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
E reasonable trial of charge in a criminal case. This Court, in the
case of Zahira Habibullah Sheikh (5) Vs. State of Gujarat
(2006) 3 sec 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 :
F
"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
G
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
H
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 101
OF NCT) DELHI [H.L. DATTU, J.]
persona non grata. The courts have always been A
considered to have an overriding duty to maintain public
confidence in the administration of justice-often referred
to as the duty to vindicate and uphold the "majesty of the
law". Due administration of justice has always been
viewed as a continuous process, not confined to B
determination of the particular case, protecting its ability
to function as a court of law in the future as in the case
before it. If a criminal court·is to be an effective instrument
in dispensing justice, the Presiding Judge must cease to
be a spectator and a mere recordin!l machine by C
becoming a participant in the trial evincing intelligence,
active interest and elicit all relevant materials necessary
for reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to the
parties and to the community it serves. The courts
administering criminal justice cannot turn a blind eye to D
vexatious or oppressive conduct that has occurred in
relation to proceedings, even if a fair trial is still possible,
except at the risk of undermining the fair name and
standing of the judges as impartial and independent
adjudicators. E
36. The principles of rule of law and due process are
closely linked with human rights protection. Such rights can
be protected effectively when a citizen has recourse to the
courts of law. It has to be unmistakably understood that a F
trial which is primarily aimed at ascertaining the truth has
to be fair to all concerned. There can be no analytical, all
comprehensive or exhaustive definition of the concept of
a fair trial, and it may have to be determined in seemingly
infinite variety of actual situations with the ultimate object G
in mind viz. whether something that was done or said
either before or at the trial deprived the quality of fairness
to a degree where a miscarriage of justice has resulted.
It will not be correct to say that it is only the accused who ·
must be fairly dealt with. That would be turning a Nelson's H
102 SUPREME COURT REPORTS [2012] 1 S.C.R.
A eye to the needs of society at large and the victims or their
family members and relatives. Each one has an inbuilt right
to be dealt with fairly in a criminal trial. Denial of a fair trial
is as much injustice to the accused as is to the victim and
the society. Fair trial obviously would mean a trial before
B an impartial judge, a fair prosecutor and an atmosphere
of judicial calm. 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
c 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
D 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
E 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
F evaluation of the totality of the evidence, oral and
circumstantial, and not by an isolated scrutiny."
12. In M.H. Hoskot Vs. State of Maharashtra 1978 (3)
SCC 544, this Court has held :
G "14. The other ingredient of fair procedure to a prisoner,
who has to seek his liberation through the court process
is lawyer's services. Judicial justice, with procedural
intricacies, legal submissions and critical examination of
evidence, leans upon professional expertise; and a failure
H of equal justice under the law is on the cards where such
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 103
OF NCT) DELHI [H.L. DATIU, J.)
supportive skill is absent for one side. Our judicature, A
moulded by Anglo-American models and our judicial
process, engineered by kindred legal technology, compel
the collaboration of lawyer-power for steering the wheels
of equal justice under the law. Free legal services to the
needy is part of the English criminal justice system. And B
the American jurist, Prof. Vance of Yale, sounded sense
for India too when he said :
"What does it profit a poor and ignorant man that he
is equal to his strong antagonist before the law if there is C
no one to inform him what the law is? Or that the courts
are open to him on the same terms as to all other persons
when he has not the wherewithal to pay the admission
fee?"
13. In Mohd. Sukur Ali Vs. State of Assam (2011) 4 SCC D
729, it is observed :
"9. In Maneka Gandhi v. Union of India, it has been held
by a Constitution Bench of this Court that the procedure
for depriving a person of his life or liberty should be fair, E
reasonable and just. We are of the opinion that it is not
fair or just that a criminal case should be decided against
an accused in the Clbsence of a counsel. It is only a lawyer
who is conversant with law who can properly defend an
accused in a criminal case. Hence, in our opinion, if a
criminal case (whether a trial or appeal/revision) is decided F
against an accused in the absence of a counsel, there will
be violation of Article 21 of the Constitution.
10. The right to appear through counsel has existed
in England for over three centuries. In ancient Rome there G
were great lawyers e.g. Cicero, Scaevola, Crassus, etc.
who defended the accused. In fact the higher the human
race has progressed in civilisation, the clearer and
stronger has that right appeared, and the more firmly has
H
104 SUPREME COURT REPORTS (2012) 1 S.C.R.
A it been held and asserted. Even in the Nuremberg trials
the Nazi war criminals, responsible for killing millions of
persons, were yet provided counsel. Therefore when we
say that the accused should be provided counsel we are
not bringing into existence a new principle but simply
B recognising what already existed and which civilised
people have long enjoyed. "
14. In the case of Hussainara Khatoon and Others v.
Home Secy., State of Bihar (1980) 1 SCC 98, it is held:
c "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
D 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
E 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
F unable to furnish and which, therefore, effectively shuts out
for them any possibility of release from pre-trial detention.
This unfortunate situation cries aloud for introduction of an
adequate and comprehensive legal service programme,
but so far, these cries do not seem to have evoked any
response. We do not think it is possible to reach the
G
benefits of the legal process to the poor, to protect them
against injustice and to secure to them their constitutional
and statutory rights unless there is a nation-wide legal
service programme to provide free legal services to them.
It is now well settled, as a result of the decision of this Court
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 105
OF NCT) DELHI [H.L. DATTU, J.]
in Maneka Gandhi v. Union of India that when Article 21 A
provides that no person shall be deprived of his life or
liberty except in accordance with the procedure
established by law, it is not enough that there should be
some semblance of procedure provided by law, but the
procedure under which a person may be deprived of his B
life or liberty should be "reasonable, fair and just". Now, a
procedure which does not make available legal services
to an accused person who is too poor to afford a lawyer
and who would, therefore, have io go through the trial
without legal assistance, cannot possibly be regarded as c
"reasonable, fair and just". It is an essential ingredient of
reasonable, fair and ju~t procedure to a prisoner who is
to seek his liberation through the court's process that he
should have legal services available to him. This Court
pointed out in M.H. Hoskot v. State of Maharashtra : D
•Judicial justice, with procedural intricacies, legal
submissions and critical examination of evidence, leans
upon professional expertise; and a failure of equal justice
under the law is on the cards where such supportive skill
is absent for one side. Our judicature, moulded by Anglo- E
American models and our judicial process, engineered by
kindred legal technology, compel the collaboration of
lawyer-power for steering the wheels of equal justice under
the law". Free legal services to the poor and the needy is
an essential element of any "reasonable, fair and just"
procedure. It is not necessary to quote authoritative F
pronouncements by Judges and Jurists in support of the
view that without the service of a lawyer an accused
person would be denied "reasonable, fair and just"
procedure. Black, J., observed in Gideon v. Wainwright:
G
"Not only those precedents but also reason 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
H
106 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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
B 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
c 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
D
emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law. This
noble ideal cannot be realised if the poor man charged
with crime has to face his accusers without a lawyer to
E assist him."
The philosophy of free legal service as an essential
element of fair procedure is also to be found in the
passage from the judgment of Douglas, J. in Jon Richard
F Argersinger v. Raymond Hamlin :
"The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law. If
G
charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or
H
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 107
OF NCT) DELHI [H.L. DATTU, J.]
evidence irrelevant to the issue or otherwise inadmissible. A
He lacks both the skili and knowledge adequately to
prepare his defence, even though he has a perfect one.
He requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction .because he does B
not know how to establish his innocence. If that be true of
men of intelligence, how much more true is it of the ignorant
and illiterate or those of feeble intellect.
Both Powell and Gideon involved felonies. But their
rationale has relevance tci .any criminal trial, where an C
accused is deprived of his liberty.
The court should consider the probable sentence that
will follow if a conviction is obtained. The more serious the
likely consequences, the greater is the probability that a D
lawyer should be appointed .... The court should consider
the individual factors peculiar to each case. These, of
course would be the most difficult to anticipate. One
relevant factor would be the competency of the individual
defendant to present his own case." (emphasis added)" E
15. In the case of Khatri Vs. State of Bihar (1981) 1 SCC
627, this Court has held : ·
"5. That takes us to one other important issue which arises
in this case. It is clear from the particulars supplied by the F
State from the records of the various judicial Magistrates
dealing with the blinded prisoners from time to time that,
neither at the time when the blinded prisoners were
produced for the first time before the Judicial Magistrate
nor at the time when the remand orders were passed, was G
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
H
108 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 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
B 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
c 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 Court has pointed out
in Hussainara Khatoon (IV) case which was decided as
D far back as March 9, 1979 that the right to free legal
services is 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
and the State is under a constitutional mandate to provide
E 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. It is unfortunate that though this Court
declared the right to legal aid as a fundamental right of an
F accused person by a process of judicial construction of
Article 21, most of the States in the country have not taken
note of this decision and provided free legal services to a
person accused of an offence. We regret this disregard
of the decision of the highest court in the land by many of
G the States despite the constitutional declaration in Article
141 that the law declared by this Court shall be binding
throughout the territory of India. Mr K.G. Bhagat on behalf
of the State agreed that in view of the decision of this
Court the State was bound to provide free legal services
H to an indigent accused but he suggested that the State
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 109
OF NCT) DELHI [H.L. DATTU, J.]
might find it difficult to do so owing to financial constraints. A
We may point out to the State of Bihar that it cannot avoid
its constitutional obligation to provide free legal services
to a poor accused by pleading financial or administrative
inability. The State is under a constitutional mandate to
provide free legal aid to an accused person who is unable B
to secure legal services on account of indigence and
whatever is necessary for this purpose has to be done by
the State. The State may have its financial constraints and
its priorities in expenditure but, as pointed out by the court
in Rhem v. Malcolm "the law does not permit any c
Government to deprive its citizens of constitutional rights
on a plea of poverty" and to quote the words of Justice
Blackmum in Jackson v. Bishop "hum·ane considerations
and constitutional requirements are not in this day to be
measured by dollar considerations". Moreover, this D
constitutional obligation to provide free legal services to
an indigent accused does not arise only when the trial
commences but also attaches when the accused is for the
first time produced before the Magistrate. It is elementary
that the jeopardy to his personal liberty arises as soon as E
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 F
reasonable, fair and just whi~h 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 G
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 H
110 SUPREME COURT RE: PORTS (2012] 1 S.C.R.
A 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 upon them by law. There i·s so much
B lack of legal awareness that it has always been recognised
as one of the principal items of the programme of the legal
aid movement in this country to promote legal literacy. It
would make a mockery of legal aid if it were to be left to a
poor ignorant and illiterate accused to ask for free legal
c services. Legal aid would become merely a paper
promise and it would fail of its purpose. The Magistrate
or the Sessions Judge before whom the accused appears
must be held to be under an obligation to inform the
accused that if he is unable to engage the services of a
lawyer on account of poverty or indigence, he is entitled
D
to obtain free legal services at the cost of the State.
Unfortunately, the Judicial Magistrates failed to discharge
this obligation in the case of the blinded prisoners and they
merely stated that no legal representation was asked for
by the blinded prisoners and hence none was provided.
E We would, therefore, direct the Magistrates and Sessions
Judges in the country to inform every accused who
appears before them and who is not represented by a
lawyer on account of his poverty or indigence that he is
entitled to free legal services at the cost of the State.
F Unless he is not willing to take advantage of the free legal
services provided by the State, he must be provided legal
representation at the cost of the State. We would also
direct the State of Bihar and require every other State in
the country to make provision for grant of free legal
G services to an accused who is unable to engage a lawyer
on account of reasons such as poverty, indigence or
incommunicable situation. The only qualification would be
that the offence charged against the accused is such that,
on conviction, it would result in a sentence of imprisonment
H
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 111
OF NCT) DELHI [H.L. DATTU, J.]
and is of such a nature that the circumstances of the case A
and the needs of social justice require that he should be
given free legal representation. 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 8
services need not be provided by the State."
16. In Ram Awadh v. State ofU.P. 1999 Cr.L.J. 4083, the
Allahabad High Court held :
"14. The requirement of providing counsel to an accused C
at the State expense is not an empty formality which may
be not by merely 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 D
interest of the accused il-l 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 E
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 F
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 G
and the Court has to guard against such an eventuality."
17. The prompt disposition of criminal cases is to be
commended and encouraged. But in reaching that result, the
accused charged with a serious offence must not be stripped H
112 SUPREME COURT REPORTS [2012) 1 S.C.R.
A of his valuable right of a fair and impartial trial. To do that, would
be negation of concept of due process of law, regardless of
the merits of the appeal. The Cr.P.C. provides that in all criminal
prosecutions, the accused has a right to have the assistance
of a counsel and the Cr.P .C. also requires the court in all
B criminal cases, where the accused is unable to engage counsel,
to appoint a counsel for him at the expenses of the State.
Howsoever guilty the appellant upon the inquiry might have
been, he is until convicted, presumed to be innocent. It was the
duty of the Court, having these cases in charge, to see that he
c is denied no necessary incident of a fair trial. In the present
case, not only the accused was denied the assistance of a
counsel during the trial. and such designation of counsel, as was
attempted at a late stage, was either so indefinite or so close
upon the trial as to amount to. a denial of effective and
0 substantial aid in that regard. The Court ought to have seen to
it that in the proceedings before the court, the accused was
dealt with justly and fairly by keeping in view the cardinal
principles that the accused of a crime is entitled to a counsel
which may be necessary for his defence, as well as to facts as
E to law. The same yardstick may not be applicable in respect
of economic offences or where offences are not punishable with
substantive sentence of imprisonment but punishable with fine
only. The fact that the right involved is of such a character that
it cannot be denied without violating those fundamental
F principles of liberty and justice which lie at the base of all our
judicial proceedings. The necessity of counsel was so vital and
imperative that the failure of the trial court to make an effective
appointment of a counsel was a denial of due process of law.
It is equally true that the absence of fair and proper trial would
be violation of fundamental principles of judicial procedure on
G account of breach of mandatory provisions of Section 304 of
Cr.P.C.
18. After carefully going through the entire records of the
trial court, I am convinced that the appellant/accused was not
H
MOHD. HUSSAIN @ JU'_FIKAR ALI v. STATE (GOVT. 113
OF NCT) DELHI [H.L. DATIU, J.]
provided the assistance of a counsel in a substantial and A
meaningful sense. To hold 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 B
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. : find it
difficult to accept t~e argument of the learned senior counsel. C
The Cr. P.C. 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 D
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 Rafiq Ahmad alias Rafi vs. E
State of U.P. (2011) 8 SCC 300, wherein it is observed:
"35. When we speak of prejudice to an accused, it has to
be shown that the accused has suffered some disability
or detriment in the protections available to him under the F
Indian criminal jurisprudence. It is also a settled canon of
criminal .law that this has occasioned the accused wit!\
failure of justice. One of the other cardinal principles of
criminal justice administration is that the courts should
make a close examination to ascertain whether there was G
really a failure of justice or whether it is only a camouflage,
as this expression is perhaps too pliable. With the
development of law, Indian courts have accepted the
following protections to and rights of the accused during
investigation and trial:
H
114 SUPREME COURT REPORTS [2012] 1 S.C.R.
A (a) The accused has the freedom to maintain silence
during investigation as well as before the court. The
accused may choose to maintain silence or make
complete denial even when his statement under Section
313 of the Code of Criminal Procedure is being recorded,
B of course, the court would be entitled to draw an inference,
including adverse inference, as may be permissible to it
in accordance with law;
(b) Right to fair trial;
c (c) Presumption of innocence (not guilty);
(d} Prosecution must prove its case beyond reasonable
doubt.
36. Prejudice to an accused or failure of justice, thus, has
D to be examined with reference to these aspects. That
alone, probably, is the method to determine with some
element of certainty and discernment whether there has
been actual failure of justice. "Prejudice" is incapable of
being interpreted in its generic sense and applied to
E criminal jurisprudence. The plea of prejudice has to be in
relation to investigation or trial and not matters falling
beyond their scope. Once the accused is able to show that
there is serious prejudice to either of these aspects and
that the same has defeated the rights available to him
F under the criminal jurisprudence, then the accused can
seek benefit under the orders of the court.
•
37. Right to fair triaL presumption of innocence until
. pronouncement of guilt and the standards of proof i.e. the
G prosecution must prove its case beyond reasonable doubt
are the basic and crucial tenets of our criminal
jurisprudence. The courts are required to examine both the
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
H
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 115
· OF NCT) DELHI
principle with exactitude as it will always depend on the A
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
8
judgments imp9gned 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, C
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 D
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
remand the case to the Trial Court for fresh disposal in
accordance with law and in the light of the observations made E
by me as above. Since the incident is of the year 1997, I direct
the Trial Court to conclude the trial as expeditiously as possible
at any rate within an outer limit of three months from the date
of communication of this order and report the same to this
Court. F
CHANDRAMAULI KR. PRASAD, J. 1. I have gone
through the judgment prepared by my noble and learned
Brother, H.L.Dattu, J. and I concur that the conviction and
sentence of the appellant is fit to be set aside as he was not
given the assistance of a lawyer to defend himself during trial G
but, with profound respect, I find it difficult to persuade myself
that it is a fit case which deserves to be remanded to the Trial
Court for fresh trial.
H
116 SUPREME COURT REPORTS [2012] 1 S.C.R.
A 2. Facts which are necessary for the decision of this appeal
are that the appellant, Mohd. Hussain @ Julfikar Ali is a national
of Pakistan and he was put on trial for offences under Section
302 and 307 of the Indian Penal Code and Section 3 and 4 of
the Explosives Substances Act. He was held guilty under
B Section 302 and 307 of the Indian Penal Code and Section 3
of Explosives Substances Act and sentenced to undergo
imprisonment for life each under Section 307 of Indian Penal
Code and Section 3 of the Explosives Substances Act. The trial
court, however, punished him with death for offence under
c Section 302 of the Indian Penal Code and submitted the
proceeding for confirmation to the High Court. The appellant
preferred appeal before the High Court against his conviction
and sentence. Both the appeal and the reference were heard
together and by an impugned common judgment the High Court
o has dismissed the appeal and confirmed the death sentence.
3. This is how the appellant is before us with the leave of
the Court. He challenges his conviction and sentence inter alia
on the ground that he was not given a fair trial, which alone
E vitiates his conviction and sentence. India is the world's largest
and most vibrant democracy and the judiciary is to ensure the
rule of law. This Court being the Court of last resort cannot
brush aside the claim without scrutiny only because the crime
is serious and allegedly committed by the citizen of a country
F with which this country has no cordial relation.
4. According to the prosecution, as usual in a winter
evening of 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
G to drop the passengers, an explosion took place inside the bus
in which four passengers died and 24 persons sustained
serious injuries.
5. A case under Section 302, 307 and 120-B of Indian
H Penal Code and Section 3 and 4 of the Explosives Substances
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 117
OF NCT) DELHI [CHANDRAMAULI KR. PRASAD, J.]
Act was registered on the same day. During the course of A
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 B
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 C
information prompted raids at different parts of the city in which
hand grenades and materials used for making bombs were
recovered. Some persons were also arrested and during the
interrogation they admitted their association with terrorist
organizations. They also admitted to have come to this country O
for 'JEHAD'. This information received in bits and pieces
pointed the needle of suspicion on the appellant in the crime
in question and he was apprehended with pistol from his house
at Lajpat Nagar. In order to ascertain his role, the Investigating
Agency decided to hold test identification parade for which the E
appellant did not object in the beginning but later on refused to
join in the test identification parade.
6. After usual investigation, the Police submitted charge-
sheet under Section 302, 307 and 120-B of the Indian Penal F
Code and under Section 3 and 4 of the Explosives Substances
Act. The charge-sheet along with the police papers were laid
before the Metropolitan Magistrate for commitment. The
appellant was in jail and produced before the Committal
Magistrate on 6th July, 1998. He disclosed to the learned G
Magistrate that he was "not in a position to engage a lawyer
and be provided with a lawyer through legal aid". It seems that
the assistance of one Mr. V.K.Jain, Advocate was made
available to the appellant who appeared before the Committing
Court on 20th July, 1998 and prayed for time for scrutiny of H
118 SUPREME COURT REPORTS [2012] 1 S.C.R.
A documents. Ultimately, the appellant was committed to the
Court of Session on 6th August, 1998. The appellant was
produced before the Trial Court from time to time and on 18th
February, 1999 was represented by Mr.Firoz Khan and Mr.
Riyaj Ahmed, Advocates. On that date, the argument on framing
B of charge was heard and the Trial Court framed charges under
Section 302 and 307 of the Indian Penal Code and under
Section 3 and 4 of the Explosives Substances Act against the
appellant to which he pleaded not guilty and the prosecution
was directed to produce its witnesses to substantiate the
C charge. On 18th May, 1999, the appellant was produced before
the Trial Court but his counsel did not put in his appearance.
Despite that, P.W.1- Darshan Kumar, the conductor of the bus
was examined in part and his cross- examination was deferred
at the request of the appellant. However, on the same day,
o P.W.2- Vijay Kumar was examined and discharged. On the
next date fixed in the case i.e. 3rd June, 1999 two witnesses
namely; P.W.3- Moin Khan and P.W.4- lmtiaz Khan were
examined and discharged. But cross-examination of P.W.1-
Darshan Kumar did not take place at the request of the
E 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
F 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.
G
7. 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
H last several dates, the counsel appointed by the Court was not
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 119
OF NCT) DELHI [CHANDRAMAULI KR. PRASAD, J.]
present and hence a new counsel be appointed. It is on the A
appellant's prayer that one Ms. Sadhana Bhatia, Advocate
present in the Court on the said date, was appointed to defend
the appellant at the expenses of the State. Thereafter, on 22nd
December, 2003, in the presence of said Ms. Sadhana Bhatia,
counsel for the appeltant, evidences of P.W.57- Dr.Mamtesh, B
P.Vif.58- Dr.Narendra lahambri and P.W.59- ASI Mahender
Singh were recorded. Thereafter, the statements of the
witnesses from P.Ws.60 to 65 were recorded in the presence
of appellant's counsel, Ms. Sadhana Bhatia. Ultimately the
statement of the appellant was recorded on 6th October, 2004 C
and argument on behalf of prosecution was heard in part. Next
hearing took place on 8th October, 2004 when the argument
on behalf of the prosecution was concluded and the case was
adjourned to 12th October, 2004 for defence argument. It is
relevant here to state that during all this period the appellant D
was in custody. It is only when the argument on behalf of the
appellant was to be heard, counsel representing him later i.e.
Ms. Bhatia realized that the witnesses have been examined and
discharged without cross-examination 'n the absence of the
defence counsel and accordingly, an application was filed for E
recall of P.W.1- Darshan Kumar for cross-examination. The
said prayer was allowed and P.W.1- Darshan Kumar was
cross-examined and discharged on 23rd October, 2004. It is
worth mentioning here that the Trial Court has recorded on said
date that the accused has not prayed for cross-examination of F
any other witness and accordingly, it heard the argument and
posted the case for judgment on 26th October, 2004. The
appellant was held guilty and sentenced as above.
8. While holding the appellant guilty the trial court has not G
only relied upon the evidence of the witnesses who have been
cross-examined but also relied upon the evidence of witnesses
who were not cross-examined. The fate of the criminal trial
depends upon the truthfulness or otherwise of the witnesses
and, therefore, it is of paramount importance. To arrive at the H
120 SUPREME COURT REPORTS [2012) 1 S.C.R.
A truth, its veracity should be judged and for that purpose cross-
examination is an acid test. It tests the truthfulness of the
statement made by a witness on oath in examination-in-chief.
Its purpose is to elicit facts and materials to establish that the
evidence of witness is fit to be rejected. The appellant in the
B present case was denied this right only because he himself was
not trained in law and not given the assistance of a lawyer to
defend him. Poverty also came in his way to engage a counsel
of his choice.
C 9. 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
0 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 gu&ranteed and statutorily protected.
E 10. 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:
F
"Article 14.
xxx xxx xxx
2. Everyone charged with a criminal offence shall have
G the right to be presumed innocent until proved guilty
according to law.
3. In the determination of any criminal charge against
him, everyone shall be entitled to the following
H minimum guarantees, in full equality:
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 121
OF NCT) DELHI [CHANDRAMAULI KR. PRASAD, J.]
(a) To be informed promptly and in detail in a A
language which he understands of the nature and
cause of the charge against him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with B
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend
himself in person or through legal assistance of his C
own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the
interests of justice so require, and without payment
by him in any such case if he does not have D
sufficient means to pay for it; ....... "
Article 14 (3) (d) entitles the person facing the criminal
charge either to defend himself in person or through the
assistance of a counsel of his choice and if he does not have E
legal assistance, to be informt:d of his right and provide him
the legal assistance without payment in case he does not have
sufficient means to pay for it. It is accepted in the civilized world
without exception that the poor and ignorant ma11 is equal to a
strong and mighty opponent before the law. But it is of no value F
for a poor and ignorant man if there is none to inform him what
the law is. In the absence of such information that courts are
open to him on the same terms as to all other persons the
guarantee of equality is illusory. The aforesaid International
Covenant on Civil and Political Rights guarantees to the G
indigent citizens of the member countries the right to be
defended and right to have legal assistance without payment.
11. Not only this, the Universal Declaration on Human
Rights ensures due process and Article 1Othereof provides that
H
122 SUPREME COURT REPORTS [2012] 1 S.C.R.
A everyone is entitled in full equality to a fair hearing by an
independent and impartial tribunal in the determination of his
rights and obligations and of any criminal charges against him.
Article 11 of Universal Declaration of Human Rights guarantees
everyone charged with a penal offence all the guarantees
B necessary for the defence, the same reads as under:
"(1) Everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to
law in a public trial at which he has had all the guarantees
necessary for his defence.
c
(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
D be imposed than the one that was applicable at the time
the penal offence was committed."
12. These salutary features fanning part of the International
Covenants and Universal Declaration on Human Rights are
E 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
F a legal practitioner of his choice. Article 39 A 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.
G 13. Besides the International Covenants and Declarations
and the constitutional guarantees referred to above, Section
303 of the Code of Criminal Procedure gives right to any
person accused of an offence before a criminal court to be
defended by a pleader of his choice. Section 304 of the Code
H
MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 123
OF NCT) DELHI [CHANDRAMAULI KR. PRASAD, J.)
of Criminal Procedure contemplates legal aid to accused A
facing charge in a case triable by Court of Sessions at State
expense and the same reads as follows:
"304. Legal aid to accused at State expense in certain
cases. B
(1) Where, in a trial before the Court of Session, 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, the court shall assign a
pleader for his defence at the expense of the State. C
(2) The High Court may, with the previous approval of the
State Government make rule providing for-
(a) The mode of selecting pleaders for defence under sub-
0
section (2);
(b) The facilities to be allowed to such pleaders by the
courts;
(c) The fee payable to such pleaders by the Government, E
and generally, for carrying out the purposes of sub-section
(1 ).
(3) The State Government may, by notification, direct that,
as from such date as may be specified in the notification,
the provisions of sub-sections (1) and (2) shall apply in F
relation to any class of trials before other courts in the State
as they apply in relation to trials before the Courts of
Session."
From a plain reading of the aforesaid provision it is G
evident that in a trial before the Court of Sessions if the
accused is not represented by a pleader and has not sufficient
means, the court shall assign a pleader for his defence at the
expense of the State. The entitlement to free legal aid is not
H
124 SUPREME COURT REPORTS [2012] 1 S.C.R.
A dependent on the accused making an application to that effect,
in fact, the court is obliged to inform the accused of his right to
obtain free legal aid and provide him with the same.
14. In my opinion, the right of a person charged with crime
8 to have the services of a lawyer is fundamental and essential
to fair trial. The right to be defended by a legal practitioner,
flowing from Article 22 (1) of the Constitution has further been
.fortified by the. introduction of the Directive Principles of State
Policy embodied in Article 39 A of the Constitution by the 42nd
C Amendment Act of 1976 and enactment of sub-section 1 of
Section 304 of the Code of Criminal Procedure. Legal
assistance to a poor person facing trial whose life and 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
0
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
E 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
F 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.
G
15. Bearing in mind the aforesaid principles, I proceed to
examine the facts of the present case. In the case in hand the
accused is a Pakistani and seems illiterate. He asked for
engagement of a counsel to defend him at State expenditure
H which was provided but unfortunately for him the counsel so
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 125
OF NCT) DELHI [CHANDRAMAULI KR. PRASAD, J.]
appointed remained absent and a large number of witnesses A
have been examined in the absence of the counsel. Those
witnesses have not been cross-examined and many of them
have been relied upon for holding the appellant guilty. The
learned Judge in seisin of the trial forgot that he has an
overriding duty to maintain public confidence in the B
administration of justice, often referred to a duty to vindicate
and uphold the majesty of law. He failed to realize that for an
effective instrument in dispensing justice he must cease to be
a spectator and a recording machine but a participant in the
trial evincing intelligence and active interest so as to elicit all C
relevant materials necessary for reaching the correct conclusion,
to find out the truth and administer justice with fairness and
impartiality both to the parties and to the community itself.
Fundamental principles based on reason and reflection in no
uncertain term recognize that the appellant haled into court in D
our adversary system of criminal justice and ultimately convicted
and sentenced without a fair trial. There are high authorities of
this Court which take this view and I do not deem it expedient
to multiply and burden this judgment with those authorities as
the same have been referred in the judgment of my learned E
Brother Dattu, J. except to refer to a judgment of this Court in
the case of Hussainara Khatoon & Others v. Home Secy.,
State of Bihar, (1980) 1 SCC 98, in which it has been held as
follows:
F
"6 ............................... Now, a procedure which does
not make available legal services to an accused person
who is too poor to afford a lawyer and who would,
therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as "reasonable,
fair and just". It is an essential ingredient of reasonable, G
fair and just procedure _to a prisoner who is to seek his
liberation through the court's process that he should have
legal services available to him ............ ."
16. Having found that the appellant has been held guilty H
126 SUPREME COURT REPORTS [2012] 1 S.C.R.
A and sentenced to death in a trial which was not reasonable, fair
and just, the next question is as to whether it is a fit case in
which direction be given for the de nova trial of the appellant
after giving him the assistance of a counsel. I have given my
most anxious consideration to this aspect of the matter and
B have no courage to direct for his de nova trial at such a distance
of time. For an occurrence of 1997, the appellant was arrested
in 1998 and since then he is in judicial custody. The charge
against him was framed on 18.02.1999 and it took more than
five years for the prosecution to produce its witnesses. True it
C is that in the incident four persons have lost their Jives and
several innocent persons have sustained severe injuries.
Further, the crime was allegedly committed by a Pakistani but
these factors do not cloud my reason. After all, we are proud
to be a democratic country and governed by rule of law. The
o appellant must be seeing the hangman's noose in his dreams
and dying every moment while awake from the day he was
awarded sentence of death, more than seven years ago. The
right of speedy trial is a fundamental right and though a rigid
time limit is not countenanced but in the facts of the present
E case I am of the opinion that after such a distance of time it
shall be travesty of justice to direct for the appellant's de novo
trial. By passage of time, it is expected that many of the
witaesses may not be found due to change of address and
various other reasons and few of them may not be in this world.
F Hence, any time limit to conclude the trial would not be
pragmatic.
17. Accordingly, I am of the opinion that the conviction and
sentence of the appellant is vitiated, not on merit but on the
G ground that his trial was not fair and just.
18. Appellant admittedly is a Pakistani, he has admitted
this during the trial and in the statement under Section 313 of
the Code of Criminal Procedure. I have found his conviction and
sentence illegal and the natural consequence of that would be
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 127
OF NCT) DELhl [CHANDRAMAULI KR. PRASAD, J.]
his release from the prison but in the facts and circumstances A
of the case, I direct that he be deported to his country in
accordance with law and till then he shall remain in jail custody.
19. In the result the appeal is allowed, appellant's
conviction and sentence is set aside with the direction B
aforesaid.
ORDER
In view of the difference of opinion with regard to the issue
whether the matter requires to be remanded for de novo trial C
in accordance with law or not, ler the appeal papers be placed
before Hon'ble the chief Justice of India for being assigned to
appropriate Bench.
N.J. Matter referred to Larger Bench. D
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