MOHD. HUSSAIN @ JULFIKAR ALIversusTHE STATE (GOVT. OF NCT) DELHI

                       [2012] 10 S.C.R. 480

A               MOHD. HUSSAIN @ JULFIKAR ALI
                                v.
               THE STATE (GOVT. OF NCT) DELHI
               (Criminal Appeal No. 1091 of 2006)

                         AUGUST 31, 2012
B
             [R.M. LODHA, ANIL R. DAVE AND
          SUDHANSU JYOTI MUKHOPADHAYA, JJ.)

        Code of Criminal Procedure, 1973 - s. 386 - Power of
C appellate court to order retrial - Held: The appellate court
  hearing criminal appeal has power to order retrial u/s. 386(b)
  - But such power should be exercised in exceptional and rare
  cases when such course becomes indispensable to avert
  failure of justice - Exercise of such power depends on facts
D and circumstances of the case - The present case is of
  extremely serious and exceptional nature, where retrial of the
  accused is indispensable - The matter requires to be
  remanded for a de novo trial.

        Administration of Criminal Justice:
E
       Speedy trial - Right of accused - Held: Such right of the
  accused must be weighed alongwith the nature and gravity of
  crime, persons involved, social impact and social needs -
  Deprivation of such right per se does not prejudice the
F accused - Constitution of India, 1950 - Article 21.
        'Fair trial' and 'Speedy trial' - Difference between.

        Words and Phrases:

G       'Retrial' - Meaning of

        The appellant-accused was prosecuted u/ss. 302/307
    IPC and s. 3 and in the alternative s. 4 of Explosive
    Substances Act. The allegation against the accused was
H                                480
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 481
              OF NCT) DELHI
that he had planted a bomb in a bus, explosion of which        A
resulted in 4 deaths and injuries to 24 persons.

    Trial court convicted the accused u/s. 302/307 IPC
r/w.s. 3 of the Act and sentenced him to death. The
conviction and sentence was confirmed by the High              8
Court.

     In appeal to this Court, the two judges of the Division
Bench were of the opinion that the appellant-accused
was denied due process of law and the trial held against
him was contrary to the procedure prescribed under the         C
provisions of Cr.P.C, because he was denied right of
presentation by counsel in the trial. However, they
differed on the point whether the matter required to be
remanded for a de novo trial in the facts and
circumstances of the case. Therefore, the matter was           D
referred to the three judges Bench to decide the point.

    Answering the reference, the Court
     HELD: 1.1. The appellate court hearing a criminal
appeal from a judgment of conviction has power to order        E
the retrial of the accused under Section 386 Cr.P.C .
Though such power exists, it should not be exercised in
a routine manner. A de novo trial or retrial of the accused
should be ordered by the appellate court in exceptional
and rare cases and only when in the opinion of the             F
appellate court such course becomes indispensable to
avert failure of justice. Surely this power cannot be used
to allow the prosecution to improve upon its case or fill
up the lacuna. A retrial is not the second trial; it is
continuation of the same trial and same prosecution. The       G
guiding factor for retrial must always be demand of
justice. Obviously, the exercise of power of retrial under
Section 386(b) Cr.P.C. will depend on the facts and
circumstances of each case for which no straitjacket
formula can be formulated but the appeal court must            H
    482     SUPREME COURT REPORTS               [2012] 10 S.C.R.

A closely keep in view that while protecting the right of an
  accused to fair trial and due process, the people who
  seek protection of law do not lose hope in legal system
  and the interests of the society are not altogether
  overlooked. [Para 42) [509-D-H; 510-A]
B
        1.2. In the present case, the incident is of the year
  1997. It occurred in a public transport bus when that bus
  was carrying passengers and stopped at a bus stand.
  The moment the bus stopped, an explosion took place
C inside the bus that ultimately resulted in death of four
  persons and injury to twenty-four persons. The nature of
  the incident and the circumstances in which it occurred
  speak volume about the very grave nature of offence. As
  a matter of fact, the appellant has been charged for the
  offences under Section 302/307 IPC and Section 3 and,
D in the alternative, Section 4(b) of Explosive Substances
  Act. It is true that the appellant has been in jail since
  09.03.1998 and it is more than 14 years since he was
  arrested and he has passed through mental agony of
  death sentence and the retrial at this distance of time shall
E prolong the culmination of the criminal case. But these
  factors are not sufficient for appellant's acquittal and
  dismissal of indictment. It cannot be ignored that the
  offences with which the appellant has been charged are
  of very serious nature and if the prosecution succeeds
F and the appellant is convicted under Section 302 IPC on
  retrial, the sentence could be death or life imprisonment.
  Gravity of the offences and the criminality with which the
  appellant is charged, are important factors that need to
  be kept in mind, though it is a fact that in the first instance,
G the accused has been denied due process. [Para 43]
  [510-C-H; 511-A]
         1.3. While having due consideration to the appellant's
    right, the nature of the offence and its gravity, the impact
    of crime on the society, more particularly the crime that
H };'
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 483
              OF NCT) DELHI
has shaken the public and resulted in death of four                 A
persons in a public transport bus can not be ignored and
overlooked. It is desirable that punishment should follow
offence as closely as possible. In an extremely serious
criminal case of the exceptional nature like the present
one, it would occasion in failure of justice if the                 B
prosecution is not taken to the logical conclusion. Justice
is supreme. The retrial of the appellant, in the facts and
circumstances, is indispensable. It is imperative that
justice is secured after providing the appellant with the
legal practitioner if he does not engage a lawyer of his            c
choice. Thus, it is held that the matter requires to be
remanded for de novo trial. [Paras 43 and 46] [511-A-C-F]

    Gopi Chand v. Delhi Administration AIR 1959 SC 609:
1959 Suppl. SCR 87 - followed.
                                                                    D
    Tyron Nazareth v. State of Goa 1994 Supp (3) SCC 321;
S. Guin andOrs. v. Grindlays Bank Ltd. (1986) 1 SCC 654:
1985 (3) Suppl. SCR 818; State of M.P. v. Bhooraji and Ors.
(2001) 7 S.CC 679: 2001 (2) Suppl. SCR 128; Zahira
Habibulla H. Sheikh andAnr. v. State of Gujarat and Ors.            E
(2004) 4 sec 158: 2004 (3) SCR 1050 - relied on.

    Kartar Singh v. State of Punjab (1994) 3 SCC 569: 1994
(2) SCR 375 ; Satyajit Banerjee and Ors v. State of West
Bengal and Ors. (2005) 1 SCC 115: 2004 (6) Suppl.
SCR 294 - referred to.                                              F

     2. 'Speedy trial' and 'fair trial' to a person accused of
a crime are integral part of Article 21. There is, however,
qualitative difference between the right to 'speedy trial'
and the accused's right of 'fair trial'. Unlike the accused's       G
right of 'fair trial', deprivation of the right to 'speedy trial'
does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature
relative. It depends upon diverse circumstances. Each
case of delay in conclusion of a criminal trial has to be           H
    •,




         484   SUPREME COURT REPORTS          [2012] 10 S.C.R.


A seen in the facts and circumstances of such case. Mere
  lapse of several years since the commencement of
  prosecution by itself may not justify the discontinuance
  of prosecution or dismissal of indictment. The factors
  concerning the accused's right to speedy trial have to be
B weighed vis-a-vis the impact of the crime on society and
  the confidence of the people in judicial system. Speedy
  trial secures rights to an accused but it does not preclude
  the rights of public justice. The nature and gravity of
  crime, persons involved, social impact and societal needs
c must be weighed along with the right of the accused to
  speedy trial and if the balance tilts in favour of the former,
  the long delay in conclusion of criminal trial should not
  operate against the continuation of prosecution and if the
  right of accused, in the facts and circumstances of the
  case and exigencies of situation, tilts the balance in his
0
  favour, the prosecution may be brought to an end. These
  principles must apply as well when the appeal court is
  confronted with the question whether or not retrial of an
  accused should be ordered. [Para 41] (508-F-H; 509-A-D]

E       Machander v. State of Hyderabad (1955) 2 SCR 524;
  Abdul Rehman Antulay and Ors. v. R.S.Nayak and Anr.
  (1992) 1 SCC 225: 1991 (3) Suppl. SCR 325; Hussainara
  Khatoon and Ors. (/) v. Home Secretary, State of Bihar (1980)
  1SCC81: 1979 (3) SCR 169; Hussainara Khatoon and Ors.
F (Ill) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC
  93; Hussainara Khatoon and Ors. (IV) v. Home Secretary,
  State of Bihar, Patna (1980) 1 SCC 98: 1979 (3) SCR 532 ;
  Raghubir Singh and Ors. v. State of Bihar (1986) 4 SCC 481:
  1986 ( 3) SCR 802; State of Punjab v. Ajaib Singh (1995)
G 2 SCC 486: 1995 (1) SCR 496 ; Hussainara Khatoon and
  Ors. (VII) v. Home Secretary, Bihar and Ors. (1995) 5 SCC
  326; Phoolan Devi v. State of M.P. and Ors. (1996) 11 SCC
  19: 1996 (9) Suppl. SCR 233; Raj Deo.Sharma (/) v. State
  of Bihar (1998) 7 SCC 507: 1998 (2) Suppl. SCR 130; Raj
H Deo Sharma (//) v. State of Bihar (1999) 7 SCC 604: 1999
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 485
              OF NCT) DELHI
(3) Suppl. SCR 124; P. Ramachandra Rao v. State of A
Karnataka (2002) 4 SCC 578; "Common Cause", A
Registered Society (/) v. Union of India and Ors. (1996) 6SCC
775: 1996 (9) Suppl. SCR 296; "Common Cause", A
Registered Society (II) v. Union of India (1996) 4 SCC 33:
1996 (2) Suppl. SCR 196 - referred to.                        B
                    Case Law Reference:
  (1955) 2 SCR 524            Referred to        Para 20
  1959 Suppl. SCR 87          Followed           Para 21
                                                             c
  1994 Supp (3) sec 321       Relied on          Para 22
  1985 (3) Suppl. SCR 818 Referred to            Para 22
  1991 (3) Suppl. SCR 325 Referred to            Para 23
                                                             D
  1979 (3) SCR 169            Referred to        Para 24
  (1980) 1 sec 93             Referred to        Para 24
  1979 (3) SCR 532            Referred to        Para 24
  1986 (3) SCR 802            Referred to        Para 24     E

  1994 (2) SCR 375            Referred to        Para 24
  1995 (1) SCR 496            Referred to        Para 25
  (1995) 5 sec 326            Referred to        Para 26     F
  1996 (9) Suppl. SCR 233 Referred to            Para 27
  1998 (2) Suppl. SCR 130 Referred to            Para 28
  1999 (3) Suppl. SCR 124 Referred to            Para 29
                                                             G
  2001 (2) Suppl. SCR 128 Relied on              Para 29
  (2002) 4 sec 578            Referred to        Para 30
  1996 (9) Suppl. SCR 296 Referred to            Para 34
                                                             H
    486      SUPREME COURT REPORTS              [2012] 10 S.C.R.


A     1996 (2) Suppl. SCR 196 Referred to              Para 34
      2004 (3) SCR 1050             Relied on          Para 34

      2004 (6) Suppl. SCR 294 Referred to              Para 36

B       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    Nb. 1091 of 2006.

        From the Judgment & Order dated 4.8.2006 of the High
    Court of Delhi at New Delhi in Criminal Appeal No. 41/05.

c        Md. Mobin Akhtar, H.A. Siddiqui, Arun Kumar Beriwal for
    the Appellant.

          P.P. Malhotra, ASG, J.S. Atri, Rahul Kaushik, D.S. Mahra
    for the Respondent.

D         The Judgment of the Court was delivered by

      R.M. LODHA, J. 1. We are called upon to decide in this
  appeal the issue· on reference by a two-Judge Bench, whether
  the matter requires to be remanded for a de novo trial in
E accordance with law or not?

       2. The above question arises in this way. On 30.12.1997
  at about 6.20 p.m. one Blueline Bus No. DL-1P-3088 carrying
  passengers on its route to Nangloi from Ajmeri Gate stopped
  at Rampura Bus Stand at Rohtak Road for passengers to
F disembark. The moment the bus stopped, an explosion took
  place inside the bus. The incident resulted in death of four
  persons and injury to twenty-four persons. The FIR of the
  incident was registered and investigation into the crime
  commenced. On completion of investigation, the police filed a
G charge-sheet against four accused persons - one of them being
  the present appellant, a national of Pakistan - for the
  commission of offences under Sections 302/307/120-8 of
  Indian Penal Code (for short, 'IPC') and Sections 3 and 4 of
  the Explosive Substances Act, 1908 (for short, 'ES Act'). The
H appellant and the other three accused were committed to the
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 487
       OF NCT) DELHI [R.M. LODHA, J.]
Court of Session by the concerned Magistrate. The three           A
accused other than the appellant were discharged by the
Additional Sessions Judge, Delhi. The appellant was charged
under Sections 302/307 IPC and Section 3 and, in the
alternative, under Section 4(b) of the ES Act.
                                                                  B
    3. The appellant pleaded not guilty to the charges framed
against him and claimed to be tried.

     4. Sixty-five witnesses were examined by the prosecution.
On conclusion of the prosecution evidence, the statement of the
appellant under Section 313 of the Code of Criminal               C
Procedure, 1973 (for short, 'Code') was recorded. The
Additional Sessions Judge vide his judgment dated 26.10.2004
held that the prosecution had been successful in proving beyond
reasonable doubt that the appellant had planted a bomb in Bus
No. DL-1 P-3088 on 30.12.1997 with intention to cause death       D
and the bomb exploded in which four persons died and twenty-
four persons sustained injuries. The Additional Sessions Judge
found the appellant guilty and convicted him under Sections
302/307 IPC read with Section 3 of the ES Act. On the point
of sentence, the matter was kept for 3.11.2004. On that date,     E
after hearing the additional public prosecutor and the defence
counsel, the Additional Sessions Judge awarded death
sentence to the appellant under Section 302 IPC and also
awarded to him imprisonment for life for the offences under
Section 307 IPC and Section 3 of the ES Act. Fine and default     F
sentence were also ordered and it was directed that sentence
of death shall not be executed unless the same was confirmed
by the High Court.

     5. Aggrieved by his conviction and sentence, the appellant   G
preferred an appeal before the Delhi High Court. The reference
was also made to the Delhi High Court for confirmation of death
sentence. The death reference and the criminal appeal were
heard together by the Delhi High Court. Vide judgment dated
4.8.2006, the Division Bench of Delhi High Court confirmed the    H
    488       SUPREME COURT REPORTS                [2012) 10 S.C.R.


A death sentence imposed on the appellant under Section 302
  IPC. The other sentences imposed on the appellant were also
  maintained.

          6. It is from the judgment of the Delhi High Court dated
8 4.8.2006 that the appellant preferred the present appeal before
    this Court.

       7. The criminal appeal came up for hearing before the
  Bench of H.L. Dattu and C.K. Prasad, JJ. In his judgment, H.L.
  Dattu, J. thought it fit to deal with the issue whether the
C appellant was denied due process of law and whether the
  conduct of trial was contrary to the procedure prescribed under
  the provisions of the Code and, in particular, that he was not
  given a fair and impartial trial and was denied the right of the
  counsel before discussing the merits of the appeal. The
D proceedings of the trial court were then noticed and discussed
  elaborately. H.L. Dattu, J. observed as follows:

         "In the present case, not only was the accused denied the
        assistance of a counsel during the trial but such
E       designation of counsel, as was attempted at a late stage,
        was either so indefinite or so close upon the trial as to
        amount to a denial of effective and substantial aid in that
        regard. The court ought to have seen to it that in the
        proceedings before the court, the accused was dealt with
        justly and fairly by keeping in view the cardinal principles
F
        that the accused of a crime is entitled to a counsel which
        may be necessary for his defence, as well as to facts as
        to law. The same yardstick may not be applicable in
        respect of economic offences or where offences are not
        punishable with substantive sentence of imprisonment but
G       punishable with fine only. The fact that the right involved is
        of such a character that it cannot be denied without
        violating those fundamental principles of liberty and justice
        which lie at the base of all our judicial proceedings, the
        necessity of counsel was so vital and imperative that the
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 489
       OF NCT) DELHI [RM. LODHA, J.]

  failure of the trial court to make an effective appointment         A
  of a counsel was a denial of due process of law. It is
  equally true that the absence of fair and proper trial would
  be violation of fundamental principles of judicial procedure
  on account of breach of mandatory provisions of Section
  304 CrPC.                                                           B

         After carefully going through the entire records of the
  trial court, I am convinced that the appellant-accused was
  not provided the assistance of a counsel in a substantial
  and meaningful sense. To hold and decide otherwise,
  would be simply to ignore actualities and also would be             C
  to ignore the fundamental postulates, already adverted to."

  8. H.L. Dattu, J. recorded his conclusions thus:

  "In view of the above discussion, I cannot sustain the              D
  judgments impugned and they must be reversed and the
  matter is to be remanded to the trial court with a specific
  direction that the trial court would assist the accused by
  employing a State counsel before the commencement of
  the trial till its conclusion, if the accused is unable to employ   E
  a counsel of his own choice. Since I am remanding the
  matter for fresh disposal, I clarify that I have not expressed
  any opinion regarding the merits of the case.

        In view of the above, I allow the appeal and set aside
  the conviction and sentence imposed by the Additional               F
  Sessions Judge in Sessions Case No. 122of1998 dated
  3-11-2004 and the judgment and order passed by the High
  Court in State v. Mohd. Hussain dated 4-8-2006 and
  remand the case to the trial court for fresh disposal in
  accordance with law and in the light of the observations            G
  made by me as above. Since the incident is of the year
  1997, I direct the trial court to conclude the trial as
  expeditiously as possible at any rate within an outer limit
  of three months from the date of communication of this
  order and report the same to this Court.·                           H
    490       SUPREME COURT REPORTS                [2012] 10 S.C.R.

A       9. C.K. Prasad, J. concurred with the view of H.L. Dattu,
  J. that the conviction and sentence of the appellant deserved
  to be set aside as he was not given the assistance of a lawyer
  to defend himself during trial. C.K. Prasad, J., however, was
  not persuaded to remand the matter to the trial court for fresh
B trial of the appellant for the following reasons:

          "I have given my most anxious consideration to this aspect
          of the matter and have no courage to direct for his de novo
          trial at such a distance of time. For an occurrence of 1997,
          the appellant was arrested in 1998 and since then he is
c         in judicial custody. The charge against him was framed on
          18-2-1999 and it took more than five years for the
          prosecution to produce its witnesses. True it is that in the
          incident four persons have lost their lives and several
          innocent persons have sustained severe injuries. Further,
D         the crime was allegedly committed by a Pakistani but these
          factors do not cloud my reason. After all, we are proud to
          be a democratic country and governed by rule of law.
                 The appellant must be seeing the hangman's noose
E         in his dreams and dying every moment while awake from
          the day he was awarded the sentence of death, more than
          seven years ago. The right of speedy trial is a fundamental
          right and though a rigid time-limit is not countenanced but
          in the facts of the present case I am of the opinion that
F         after such a distance of time it shall be travesty of justice
          to direct for the appellant's de novo trial. By passage of
          time, it is expected that many of the witnesses mav not be
          found due to change of address and various other reasons
          and few of them may not be in this world. Hence, any time-
          limit to conclude the trial would not be pragmatic.
G
                Accordingly, I am of the opinion that the conviction
          and sentence of the appellant is vitiated, not on merit but
          on the ground that his trial was not fair and just.

H               The appellant admittedly is a Pakistani, he has
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 491
       OF NCT) DELHI [R.M. LODHA, J.]
     admitted this during the trial and in the statement under           A
     Section 313 of the Code of Criminal Procedure. I have
     found his conviction and sentence illegal and the natural
     consequence of that would be his release from the prison
     but in the facts and circumstances of the case, I direct that
     he be deported to his country in accordance with law, and           B
     till then he shall remain in jail custody."

     10. We have heard Mr. Md. Mobin Akhtar, learned counsel
for the appellant and Mr. P.P. Malhotra, learned Additional
Solicitor General for the respondent.
                                                                         c
      11. Article 21 of the Constitution provides that no person
shall be deprived of his life or personal liberty except according
to procedure established by law. Speedy justice and fair trial
to a person accused of a crime are integral part of Article 21;
these are imperatives of the dispensation of justice. In every           D
criminal trial, the procedure prescribed in the Code has to be
followed, the laws of evidence have to be adhered to and an
effective opportunity to the accused to defend himself must be
given. If an accused remains unrepresented by a lawyer, the
trial court has a duty to ensure that he is provided with proper         E
legal aid.
     12. Article 22(1) of the Constitution provides that no person
who is arrested shall be detained in custody without being
informed of the grounds for such arrest nor shall he be denied
the right to consult, and to be defended by, a legal practitioner        F
of his choice.
      13. Article 39A of the Constitution, inter-alia, articulates the
policy that the State shall provide free legal aid by a suitable
legislation or schemes to ensure that opportunities for securing         G
justice are not denied to any citizen by reason of economic or
other disabilities.
    14. Section 303 of the Code confers a right upon any
person accused of an offence before a criminal court to be
defended by a pleader of his choice.                                     H
    492       SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A         15. Section 304 of the Code mandates legal aid to
    accused at State's expense in a trial before the Court of
    Session where the accused is not represented by a pleader
    and where it appears to the court that the accused has not
    sufficient means to engage a pleader.
B
          16. The two-Judge Bench that heard the criminal appeal,
    was unanimous that the appellant was denied the assistance
    of a counsel in substantial and meaningful manner in the course
    of trial although necessity of counsel was vital and imperative
C   and that resulted in denial of due process of law. In their
    separate judgments, the learned Judges agreed that the
    appellant has been put to prejudice rendering the impugned
    judgments unsustainable in law. They, however, differed on the
    course to be adopted after it was held that the conviction and
    sentence awarded to the appellant by the trial court and
D   confirmed by the High Court were vitiated. As noted above,
    H.L. Dattu, J. ordered the matter to be remanded to the trial
    court for fresh disposal in accordance with law after providing
    to the appellant the assistance of the counsel before the
    commencement of the trial till its conclusion if the accused was
E   unable to engage a counsel of his own choice. On the other
    hand, C.K. Prasad, J. for the reasons indicated by him held that
    the incident occurred in 1997; the appellant was awarded the
     sentence of death more than seven years ago and at such
    distance of time it shall be travesty of justice to direct for the
F   appellant's de novo trial.

        17. Section 386 of the Code sets out the powers of the
    appellate court. To the extent it is relevant, it reads as under :
          ·s. 386. Powers of the Appellate Court.-After perusing
G         such record and hearing the appellant or his pleader, if he
          appears, and the Public Prosecutor, if he appears, and in
          case of an appeal under section 377 or section 378, the
          accused if he appears, the Appellate Court may, if it
          considers that there is no sufficient ground for interfering,
H         dismiss the appeal, or may-
 MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 493
        OF NCT) DELHI [R.M. LODHA, J.]
      (a) xxx xxx xxx                                                   A

      (b) in an appeal from a conviction-

               (i)      reverse the finding and sentence and acquit
                        or discharge the accused, or order him to be
                        re-tried by a Court of competent jurisdiction   8
                        subordinate to such Appellate Court or
                        committed for trial, or

                        xxx xxx   m
     18. Section 311 of the Code empowers a criminal court
                                                                        c
to summon any person as a witness though not summoned as
a witness or recall and re-examine any person already
examined at any stage of any enquiry, trial or other proceeding
and the court shall summon and examine or recall and re-                D
examine any such person if his evidence appears to be
essential to the just decision of the case.

     19. If the appellate court in an appeal from a conviction
under Section 386 orders the accused to be re-tried, on the
matter being remanded to the trial court and on re-trial of the         E
accused, such trial court retains tbe power under Section 311
of the Code unless ordered otherwise by the appellate court.

     20. In Machander v. State of Hyderabacl1, it has been
stated by this Court that while it is incumbent on the court to         F
see that no guilty person escapes but the court also has to see
that justice is not delayed and the accused persons are not
indefinitely harassed. The court further stated that the scale
must be held even between the prosecution and the accused.

    21. In Gopi Chand v. Delhi Administration2, a Constitution          G
Bench of this Court was concerned with the criminal appeals
wherein plea of the validity of the trial and of the orders of

1.   (1955) 2 SCR 524.
2.   AIR 1959 SC 609.                                                   H
    494       SUPREME COURT REPORTS                  [2012] 10 S.C.R.


A conviction and sentence was raised by the appellant. That was
  a case where the appellant was charged for three offences
  which were required to be tried as a warrant case by following
  the procedure prescribed in the Criminal Procedure Code,
  1860 but he was tried under the procedure prescribed for the
B trial of a summons case. The procedure for summons case and
  warrants case was-materially different. The Constitution Bench
  held that having regard to the nature of the charges framed and
  the character and volume of evidence led, the appellant was
  prejudiced; the trial of the three cases against the appellant was
c vitiated and the orders of conviction and sentence were
  rendered invalid. The Court, accordingly, set aside the orders
  of conviction and sentence. While dealing with the question as
  to what final order should be passed in the appeals, the
  Constitution Bench held as under:
D         "29 ......... The offences with which the appellant stands
          charged are of a very serious nature; and though it is true
          that he has had to undergo the ordeal of a trial and has
          suffered rigorous imprisonment for some time that would
          not justify his prayer that we should not order his retrial. In
E         our opinion, having regard to the gravity of the offences
          charged against the appellant, the ends of justice require
          that we should direct that he should be tried for the said
          offences de novo according to law. We also direct that the
          proceedings to be taken against the appellant hereafter
F         should be commenced without delay and should be
          disposed as expeditiously as possible."

        22. A two-Judge Bench of this Court in Tyron Nazareth v.
  State of Goa3 , after holding that the conviction of the appellant
G was vitiated as he was not provided with legal aid in the course
  of trial, ordered retrial. The brief order reads as follows:

          "2. We have heard the learned counsel for the State. We
          have also perused the decisions of this Court in Khatri (II)

H 3. 1994 Supp (3) sec 321.
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 495
       OF NCT) DELHI [R.M. LODHA, J.]
      v. State of Bihar [(1981) 1 SCC 627] and Sukh Das v.           A
      Union Territory of Arunachal Pradesh [(1986) 2 SCC
      401]. We find that the appellant was not assisted by any
      lawyer and perhaps he was not aware of the fact that the
      minimum sentence provided under the statute was 10
      years' rigorous imprisonment and a fine of Rs 1 lakh. We       B
      are, therefore, of the opinion that in the circumstances the
      matter should go back to the tribunal. The appellant if not
      represented by a lawyer may make a request to the court
      to provide him with a lawyer under Section 304 of the
      Criminal Procedure Code or under any other legal aid           c
      scheme and the court may proceed with the trial afresh
      after recording a plea on the charges. The appeal is
      allowed accordingly. The order of conviction and sentence
      passed by the Special Court and confirmed by the High
      Court are set aside and a de novo trial is ordered hereby."    D

      23. This Court in S. Guin & Ors. v. Grindlays Bank Ltd'.
was concerned with the case where the trial court acquitted the
appellants of the offence punishable under Section 341 of the
IPC read with Section 36-AD of Banking Regulation Act, 1949.
The charge against the appellants was that they had obstructed       E
the officers of the bank, without reasonable cause, from entering
the premises of a branch of the bank and also obstructed the
transaction of normal banking business. Against their acquittal,
an appeal was preferred before the High Court which allowed
it after a period of six years and remanded the case for retrial.    F
It was from the order of remand for re-trial that the matter
reached this Court. This Court while setting aside the order of
remand in paragraph 3 of the Report held as under :
      "3. After going through the judgment of the magistrate and     G
      of the High Court we feel that whatever might have been
      the error committed by the Magistrate, in the circumstances
      of the case, it was not just and proper for the High Court
      to have remanded the case for fresh trial, when the order
4.   (1988) 1 sec 654.                                               H
    496        SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A         of acquittal had been passed nearly six years before the
          judgment of the High Court. The pendency of the criminal
          appeal for six years before the High Court is itself a
          regrettable feature of this case. In addition to it, the order
          directing retrial has resulted in serious prejudice to the
B         appellants. We are of the view that having regard to the
          nature of the acts alleged to have been committed by the
          appellants and other attendant circumstances, this was a
          case in which the High Court should have directed the
          dropping of the proceedings in exercise of its inherent
c         powers under Section 482, Criminal Procedure Code
          even if for some reason it came to the conclusion that the
          acquittal was wrong. A fresh trial nearly seven years after
          the alleged incident is bound to result in harassment and
          abuse of judicial process ...... ."
D      24. The Constitution Bench of this Court in Abdul Rehman
  Antulay and others v. R. S. Nayak and another considered
  right of an accused to speedy trial in light of Article 21 of the
  Constitution and various provisions of the Code. The
  Constitution Bench also extensively referred to the earlier
E decisions of this Court in Hussainara Khatoon and others (I)
  v. Home Secretary, State of Bihat6, Hussainara Khatoon and
  others (Ill) v. Home Secretary, State of Bihar,Patna 7,
  Hussainara Khatoon and others (IV) v. Home Secretary, State
  of Bihar,Patna8 and Raghubir Singh & others v. State of Bihari
F and noted that the provisions of the Code are consistent with
  the constitutional guarantee of speedy trial emanating from
  Article 21. In paragraph 86 of the Report, the Court framed
  guidelines. Sub-paragraphs (9) and (10) thereof read as under:
          "86(9). Ordinarily speaking, where the court comes to the
G
    5.   (1992) 1 sec 225.
    6.   (1980) 1 sec 81.
    1.   (1980) 1 sec 93.
    8.   (1980) 1 sec 98.
H 9. (1986)4SCC481.
 MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 497
        OF NCT) DELHI [R.M. LODHA, J.]

     conclusion that right to speedy trial of an accused has been      A
     infringed the charges or the conviction, as the case may
     be, shall be quashed. But this is not the only course open.
     The nature of the offence and other circumstances in a
     given case may be such that quashing of proceedings may
     not be in the interest of justice. In such a case, it is open     B
     to the court to make such other appropriate order -
     including an order to conclude the trial within a fixed time
     where the trial is not concluded or reducing the sentence
     where the trial has concluded - as may be deemed just
     and equitable in the circumstances of the case.                   c
     (10). It is neither advisable nor practicable to fix any time-
     limit for trial of offences. Any such rule is bound to be
     qualified one. Such rule cannot also be evolved merely to
     shift the burden of proving justification on to the shoulders     D
     of the prosecution. In every case of complaint of denial of
     right to speedy trial, it is primarily for the prosecution to
     justify and explain the delay. At the same time, it is the duty
     of the court to weigh all the circumstances of a given case
     before pronouncing upon the complaint. The Supreme
     Court of USA too has repeatedly refused to fix any such           E
     outer time-limit in spite of the Sixth Amendment. Nor do
     we think that not fixing any such outer limit ineffectuates the
     guarantee of right to speedy trial.·

      25. In Kartar Singh v. State of Punjab 10, it was stated by      F
this Court that no doubt liberty of a citizen must be zealously
safeguarded by the courts but nonetheless the courts while
dispensing justice should keep in mind not only the liberty of
the accused but also the interest of the victim and their near
and dear and above all the collective interest of the community        G
and the safety of the nation so that the public may not lose faith
in the system of judicial administration and indulge in private
retribution. In that case, the Court was dealing with a case under
the TADA Act.
10. (1994) 3 sec 569.                                                  H
    498      SUPREME COURT REPORTS                [2012) 10 S.C.R.


A       26. In State of Punjab v. Ajaib Singh 11, a two-Judge Bench
  of this Court was concerned with the question whether the order
  of acquittal passed by the High Court of Punjab and Haryana
  was liable to interference under Article 136 of the Constitution.
  That was a case where the respondent was tried along with
B other two ~ccused persons for the offences under Section 302
  IPC and Section 27 of the Arms Act. While one of the accused
  was acquitted and the other was convicted for a smaller offence
  and given probation, insofar as respondent was concerned, he
  was convicted under Section 302 IPC and sentenced to
c undergo life imprisonment. He was also convicted under
  Section 27 of the Arms Act and given two years' rigorous
  imprisonment. The High Court held that the act of the
  resoondent was covered within clauses first and secondly in
  Sec<ion 100 of the IPC and, therefore, he was entitled to
0 acquittal. While maintaining the order of acquittal the Court did
  notice the time lag of more than 18 years from the date of
  incident and nearly 15 years from the date of acquittal and
  hearing.

          27. In Hussainara Khatoon and others (VII) v. Home
E   Secretary, Bihar & Others. 12, a three-Judge Bench of this Court
    while dealing with the rights of under-trial prisoners observed
    that sympathy for the under-trials who were in jail for long terms
    on account of pendency of cases had to be balanced having
    regard to the impact of crime on society and the fact situation.
F
       28. Phoolan Devi v. State of M.P. and others13 , was
  concerned with the release of the petitioner on the ground that
  her right to speedy trial had been violated and her continued
  custody was without any lawful authority. The Court observed
G that by lapse of several years since the commencement of
  prosecution, it cannot be said that for that reason alone the
  continuance of prosecution would violate the petitioner's right
    11. (1995) 2 sec 486.
    12. (1995) 5 sec 326.
H 13. (1996) 11 sec 19.
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 499
       OF NCT) DELHI [R.M. LODHA, J.]
to speedy trial.                                                     A
     29. In Raj Deo Shanna (I) v. State of Bihar14 , the matter
reached this Court at the instance of an accused charged with
offences under Sections 5(2) and 5(1)(e) of the Prevention of
Corruption Act, 1947. He was aggrieved by the order of the High 8
Court whereby his prayer for quashing the prosecution against
him on the ground of violation of right to speedy trial was
rejected. In that case, a three-Judge Bench of this Court issued
certain directions supplemental to the propositions laid down
in Abdul Rehman Antulay5. Raj Deo Shanna (1) 14 came up for
consideration once again in Raj Deo Shanna (II) v. State of C
Bihar15• In his dissenting judgment, M.B. Shah, J. held that
prescribing time-limit would be against the decisions rendered
in Abdul Rehman Antulay5 and Kartar Singh10 •
     30. In State of M.P. v. Bhooraji and others16, this Court was   D
concerned with the question whether retrial was inevitable
although the trial proceedings in the case had already
undergone over a period of nine years. That was a case where
the incident happened on 26.8.1991 in which one person was
murdered and three others were wounded. Eleven persons were          E
charge-sheeted by the police in respect of the said incident for
various offences including Section 302 read with Section 149
IPC and Section 3(2) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 ('SC/ST Acf). The
Additional Sessions Judge, Dhar (M.P.) (Specified Court) on          F
conclusion of trial that took about five years convicted all the
eleven accused persons under Sections 148, 323, 3021149 IPC
and sentenced them to various punishments including
imprisonment for life. The convicted persons filed appeal before
the High Court of Madhya Pradesh. During the pendency of the         G
appeal before the High Court, this Court in a decision given in
Gangula Ashok v. State of A.P. [(2000) 2 SCC 504] held that
14. (1998) 1 sec so1.
1s. (1999) 1 sec 604.
16. c2001) 1 sec 679.                                                H
    500       SUPREME COURT REPORTS                 [2012) 10 S.C.R.

A committal proceedings were necessary for a Specified Court
  under the SC/ST Act to take cognizance of the offences to be
  tried. In light of the decision of this Court in Gangula Ashok,
  the convicts made an application before the High Court in the
  pending appeal seeking quashment of the trial proceedings on
B the ground that the trial was without jurisdiction inasmuch as
  the Specified Court of Session did not acquire jurisdiction to
  take cognizance of and try the case, in the absence of it being
  committed by a Magistrate. The Division Bench of the High
  Court upheld the contention raised by the convicted persons
c and ordered the quashment of the trial proceedings and the trial
  court was directed to return the charge-sheet and the connected
  papers to the prosecution for resubmission to the Magistrate
  for further proceedings in accordance with law. It was against
  the judgment of the High Court that the State of Madhya
  Pradesh came up in appeal by special leave.
0
        31. While dealing with the question whether the High Court
  should have quashed the trial proceedings only on account of
  declaration of the legal position made by the Supreme Court
  concerning the procedural aspect about the cases involving
E offences under the SC/ST Act, this Court stated, "a de novo
  trial should be the last resort and that too only when such a
  course becomes so desperately indispensable. It should be
  limited to the extreme exigency to avert 'a failure of justice'. Any
  omission or even the illegality in the procedure which does not
F affect the core of the case is not a ground for ordering a de
  novo trial". The Court went on to say further as follows :
          "8 .......... This is because the appellate court has plenary
          powers for revaluating and reappraising the evidence and
          even to take additional evidence by the appellate court
G
          itself or to direct such additional evidence to be collected
          by the trial court. But to replay the whole laborious exercise
          after erasing the bulky records relating to the earlier
          proceedings, by bringing down all the persons to the court
          once again for repeating the whole depositions would be
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 501
       OF NCT) DELHI [R.M. LODHA, J.]
    a sheer w~ste of time, energy and costs unless there is          A
    miscarriage of justice otherwise. Hence the said course
    can be resorted to when it becomes unpreventable for the
    purpose of averting "a failure of justice". The superior court
    which orders a de novo trial cannot afford to overlook the
    realities and the serious impact on the pending cases in         B
    trial courts which are crammed with dockets, and how
    much that order would inflict hardship on many innocent
    persons who once took all the trouble to reach the court
    and deposed their versions in the very same case. To them
    and the public the re-enactment of the whole labour might        c
    give the impression that law is more pedantic than
    pragmatic. Law is not an instrument to be used for inflicting
    sufferings on the people but for the process of justice
    dispensation".
     32. In Bhooraj1, 6 , the Court referred to Chapter XX.XV of D
the Code and, particularly, Sections 461, 462 and 465(1). After
noticing the above provisions, the Court observed in
paragraphs 15, 16 and 17 of the Report as follows :
    "15. A reading of the section makes it clear that the error,     E
    omission or irregularity in the proceedings held before or
    during the trial or in any enquiry were reckoned by the
    legislature as possible occurrences in criminal courts. Yet
    the legislature disfavoured axing down the proceedings or
    to direct repetition of the whole proceedings afresh. Hence,     F
    the legislature imposed a prohibition that unless such error,
    omission or irregularity has occasioned "a failure of justice"
    the superior court shall not quash the proceedings merely
    on the ground of such error, omission or irregularity.
    16. What is meant by "a failure of justice" occasioned on G
    account of such error, omission or irregularity? This Court
    has observed in Shamnsaheb M. Multtani v. State of
    Kamataka [{2001} 2 SCC 577) thus: (SCC p. 585, para
    23)
                                                                H
    502      SUPREME COURT REPORTS                 (2012)-10 S.C.R.

A                "23. We often hear about 'failure of justice' and
                 quite often the submission in a criminal court is
                 accentuated with the said expression. Perhaps it is
                 too pliable or facile an expression which could be
                 fitted in any situation of a case. The expression
B                'failure of justice' would appear, sometimes, as an
                 etymological chameleon (the simile is borrowed
                 from Lord Diplock in Town Investments Ltd. v.
                 Deptt. of the Environment [(1977) 1 All ER 813).
                 The criminal court, particularly the superior court
c                should make a close examination to ascertain
                 whether there was really a failure of justice or
                 whether it is only a camouflage.•
          17. It is an uphill task for the accused in this case to show
          that failure of justice had in fact occasioned merely
D         because the specified Sessions Court took cognizance of
          the offences without the case being committed to it. The
          normal and correct procedure, of course, is that the case
          should have been committed to the Special Court because
          that court being essentially a Court of Session can take
E         cognizance of any offence only then. But if a specified
          Sessions Court, on the basis of the legal position then felt
          to be correct on account of a decision adopted by the High
          Court, had chosen to take cognizance without a committal
          order, what is the disadvantage of the accused in following
F         the said courser
        33. Finally this Court concluded that High Court should
  have dealt with the appeal on merits on the basis of the
  evidence already on record and to facilitate the said course,
G the judgment of the High Court impugned in the appeal was set
  aside and matter was sent back to the High Court for disposal
  of the appeal afresh on merits in accordance with law.
          34. P. Ramachandra Rao v. State of Kamataka 17 was

H 11. c2002) 4 sec 578.
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 503
       OF NCT) DELHI [R.M. LODHA, J.]
concerned with the appeals wherein the accused persons A
indicted of corruption charges were acquitted by the special
courts for failure of commencement of trial in spite of lapse of
two years from the date of framing of the charges and the High
Court allowed the State appeals without noticing the respective
accused persons. When the appeals came up for hearing B
before the Bench of three-Judges, the matters were referred
to a Constitution Bench to consider whether time-limit of the
nature mentioned in, "Common Cause~ A Registered Society
(I) v. Union of India and others18 , "Common Causea, A
Registered Society (II) v. Union of lndia 19, Raj Deo Sharma C
 (1)1 4, and Raj Deo Sharma (11)15 can under the law be laid down?
 Before the Bench of five-Judges, the earlier decision of this
Court in Abdul Rehman Antulay5 was brought to the notice
 along with the above referred four cases. The five-Judge Bench,
 accordingly, referred the matter to a Bench of seven-Judges.
 The Bench of seven-Judges considered the questions: Is it at D
 all necessary to have limitation bars terminating trials and
 proceedings? Is there no effective mechanism available for
 achieving the same end? In paragraph 23 (Pg. 600) of the
 Report, the Bench made the following observations:
                                                                           E
         "23. Bars of limitation, judicially engrafted, are, no doubt,
         meant to provide a solution to the aforementioned
         problems. But a solution of this nature gives rise to greater
         problems like scuttling a trial without adjudication, stultifying
         access to justice and giving easy exit from the portals of F
         justice. Such general remedial measures cannot be said
         to be apt solutions. For two reasons we hold such bars of
         limitation uncalled for and impermissible: first, because it
         tantamounts to impermissible legislation - an activity
         beyond the power which the Constitution confers on the G
         judiciary, and secondly, because such bars of limitation fly
         in the face of law laid down by the Constitution Bench in
         A.R. Antu/ay case and, therefore, run counter to the
1a. (1996) s sec 775.
19. (1996) 4 sec 33.                                                      H
    504         SUPREME COURT REPORTS                [2012] 10 S.C.R.


A         doctrine of precedents and their binding efficacy."

          35. In paragraph 29 (Pg. 603) of the Report, the seven-
    Judge Bench held that the period of limitation for conclusion of
    trial of a criminal case or criminal proceeding in "Common
B   Cause" (/) 18 , "Common Cause· (11) 19 , Raj Deo Sharma (/) 14 , Raj
    Deo Sharma (11)15 could not have been prescribed. The Bench
    concluded, inter alia, as follows :

          "29 .......... .

c         (1) The dictum in AR. Antulay case is correct and still
          holds the field.

          (2) The propositions emerging from Article 21 of the
          Constitution and expounding the right to speedy trial laid
          down as guidelines in AR. Antu/ay case adequately take
D         care of right to speedy trial. We uphold and reaffirm the
          said propositions.

        (3) The guidelines laid down in AR. Antulay case are not
        exhaustive but only illustrative. They are not intended to
E       operate as hard-and-fast rules or to be applied like a
        straitjacket formula. Their applicability would depend on
        the fact situation of each case. It is difficult to foresee all
        situations and no generalization can be made.

        (4) It is neither advisable, nor feasible, nor judicially
F       permissible to draw or prescribe an outer limit for
        conclusion of all criminal proceedings. The time-limits or
        bars of limitation prescribed in the several directions made
        in Common Cause {/), Raj Deo Sharma (/) and Raj Deo
        Sharma (//) could not have been so prescribed or drawn
G       and are not good law. The criminal courts are not obliged
        to terminate trial or criminal proceedings merely on
        account of lapse of time, as prescribed by the directions
        made in Common Cause case (/), Raj Deo Sharma case
        (I) and (II). At the most the periods of time prescribed in
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 505
       OF NCT) DELHI [R.M. LODHA, J.]
    those decisions can be taken by the courts seized of the A
    trial or proceedings to act as reminders when they may be
    persuaded to apply their judicial mind to the facts and
    circumstances of the case before them and determine by
    taking into consideration the several relevant factors as
    pointed out in AR. Antulay case and decide whether the B
    trial or proceedings have become so inordinately delayed
    as to be called oppressive and unwarranted. Such time-
     limits cannot and will not by themselves be treated by any
    court as a bar to further continuance of the trial or
     proceedings and as mandatorily obliging the court to c
     terminate the same and acquit or discharge the accused.

    (5) The criminal courts should exercise their available
    powers, such as those under Sections 309, 311 and 258
    of the Code of Criminal Procedure to effectuate the right
    to speedy trial. A watchful and diligent trial Judge can     D
    prove to be a better protector of such right than any
    guidelines. In appropriate cases, jurisdiction of the High
    Court under Section 482 CrPC and Articles 226 and 227
    of the Constitution can be invoked seeking appropriate
    relief or suitable directions.                               E
                    xxx         xxx·
      36. A two-Judge Bench of this Court in Zahira Habibulla
H. Sheikh and another v. State of Gujarat and others2°, known F
as the "Best Bakery Case", extensively considered the
jurisprudence of fair trial, powers of the criminal court under the
Code and the Evidence Act including retrial of a criminal case.
The Best Bakery Case was a case of mass killing. The trial
court directed acquittal of the accused persons. The State of
Gujarat preferred appeal against acquittal and a criminal G
revision was also filed against acquittal by one of the affected
persons. The Gujarat High Court dismissed the criminal appeal
 and criminal revision upholding acquittal of the accused by the

20. (2004) 4 sec 1ss.                                            H
    506       SUPREME COURT REPORTS                  [2012J 10 S.C.R.


A trial court. The prayers for adducing additional evidence under
  Section 391 of the Code and/or for directing retrial were
  rejected. It is from this order of the Gujarat High Court that the
  matter reached this Court. In paragraph 33 of the Report (Pg.
  183), the Bench observed as follows :
B
          "33. The principle of fair trial now informs and energises
          many areas of the law. It is reflected in numerous rules and
          practices. It is a constant, ongoing development process
          continually adapted to new and changing circumstances,
          and exigencies of the situation - peculiar at times and
c         related to the nature of crime, persons involved - directly
          or operating behind, social impact and societal needs and
          even so many powerful balancing factors which may come
          in the way of administration of criminal justice system."

D        37. Then in paragraph 35 of the Report (Pg. 184), the Court
    observed that in a criminal case the fair trial entails triangulation
    of interests of the accused, the victim and the society. The
    Court further observed that "interests of the society are not to
    be treated completely with disdain and as persona non grata".
E
         38. In Best Bakery Case20 , the Court also made the
    following observations:
        "38. A criminal trial is a judicial examination of the issues
        in the case and its purpose is to arrive at a judgment on
F       an issue as to a fact or relevant facts which may lead to
        the discovery of the fact issue and obtain proof of such
        facts at which the prosecution and the accused have
        arrived by their pleadings; the controlling question being
        the guilt or innocence of the accused. Since the object is
G       to mete out justice and to convict the guilty and protect the
        innocent, the trial should be a search for the truth and not
        a bout over technicalities, and must be conducted under
        such rules as will protect the innocent, and punish the guilty.
        The proof of charge which has to be beyond reasonable
H       doubt must depend upon judicial evaluation of the totality
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 507
       OF NCT) DELHI [R.M. LODHA, J.]
   . of the evidence, oral and circumstantial, and not by an         A
     isolated scrutiny.
    39. Failure to accord fair hearing either to the accused or
    the prosecution violates even minimum standards of due
    process of law. It is inherent in the concept of due process
    of law, that condemnation should be rendered only after          B
    the trial in which the hearing is a real one, not sham or a
    mere farce and pretence. Since the fair hearing requires
    an opportunity to preserve the process, it may be vitiated
    and violated by an overhasty, stage-managed, tailored and
    ~~n~.                                                            C
    40. The fair trial for a criminal offence consists not only in
    technical observance of the frame and forms of law, but
    also in recognition and just application of its principles in
    substance, to find out the truth and prevent miscarriage of      D
    justice:
     39. The Bench emphasized that whether a re-trial under
Section 386 of the Code or taking up of additional evidence
under Section 391 of the Code in a given case is the proper
procedure will dep~nd on the facts and circumstances of each         E
case for which no straitjacket formula of universal and invariable
application can be formulated.
      40. In Satyajit Banerjee and others v. State of West
Bengal and others21 , a two-Judge Bench of this Court was
concerned with an appeal by special leave wherein the F
accused-appellants were charged for the offences punishable
under Section 498-A and 306 of the Indian Penal Code. The
trial court acquitted the accused persons. In revision preferred
by the complainant, the High Court set aside the order of
acquittal and directed a de novo trial of the accused. While G
dealing with the revisional jurisdiction of the High Court in a
matter against the order of acquittal, the Court observed that
such jurisdiction was exercisable by the High Court only in
exceptional cases where the High Court finds defect of
21. (2005) 1 sec 115.                                                H
    508        SUPREME COURT REPORTS                  [2012) 10 S.C.R.

A procedure or manifest error of law resulting in flagrant
  miscarriage of justice. In the facts of the case, this Court held
  that the High Court ought not to have directed the trial court to
  hold the de novo trial. With reference to Best Bakery Case20
  the Court observed in paragraphs 25 and 26 of the Report
B (Pgs. 121 and 122) as follows :
          "25. Since strong reliance has been placed on Best Bakery
          case (Gujarat riots case) it is necessary to record a note
          of caution. That was an extraordinary case in which this
          Court was convinced that the entire prosecution machinery
c         was trying to shield the accused
          i.e. the rioters. It was also found that the entire trial was a
          farce. The witnesses were terrified and intimidated to keep
          them away from the court. It is in the aforesaid extraordinary
          circumstances that the court not only directed a de novo
D         trial of the whole case but made further directions for
          appointment of the new prosecutor with due consultation
          of the victims. Retrial was directed to be held out of the
          State of Gujarat.

E         26. The law laid down in Best Bakery case in the aforesaid
          extraordinary circumstances, cannot be applied to all cases
          against the established principles of criminal
          jurisprudence. Direction for retrial should not be made in
          all or every case where acquittal of accused is for want of
          adequate or reliable evidence. In Best Bakery case the first
F
          trial was found to be a farce and is described as "mock
          trial". Therefore, the direction for retrial was in fact, for a
          real trial. Such extraordinary situation alone can justify the
          directions as made by this Court in Best Bakery case."
G      41. 'Speedy trial' and 'fair trial' to a person accused of a
  crime are integral part of Article 21. There is, however,
  qualitative difference between the right to speedy trial and the
  accused's right of fair trial. Unlike the accused's right of fair trial,
  deprivation of the right to speedy trial does not per se prejudice
H the accused in defending himself. The right to speedy trial is
 MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 509
        OF NCT) DELHI [R.M. LODHA, J.]
 in its very nature relative. It depends upon diverse A
 circumstances. Each case of delay in conclusion of a criminal
 trial has to be seen in the facts and circumstances of such case. '
 Mere lapse of several years since the commencement of
 prosecution by itself may not justify the discontinuance of
 prosecution or dismissal of indictment. The factors concerning B
 the accused's right to speedy trial have to be weighed vis-a-
 vis the impact of the crime on society and the confidence of
 the people in judicial system. Speedy trial secures rights to an
 accused but it does not preclude the rights of public justice. The
 nature and gravity of crime, persons involved, social impact and c
 societal needs must be weighed along with the right of the
 accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right
 of accused in the facts and circumstances of the case and D
exigencies of situation tilts the balance in his favour, the
 prosecution may be brought to an end. These principles must
 apply as well when the appeal court is confronted with the
question whether or not retrial of an accused should be ordered.
       42. The appellate court hearing a criminal appeal from a E
judgment of conviction has power to order the retrial of the
accused under Section 386 of the Code. That is clear from the
bare language of Section 386(b). Though such power exists, it
should not be exercised in a routine manner. A de novo trial
or retrial of the accused should be ordered by the appellate F
court in exceptional and rare cases and only when in the opinion
of the appellate court such course becomes indispensable to
avert failure of justice. Surely this power cannot be used to allow
the prosecution to improve upon its case or fill up the lacuna.
A retrial is not the second trial; it is continuation of the same G
trial and same prosecution. The guiding factor for retrial must
always be demand of justice. Obviously, the exercise of power
of retrial under Section 386(b) of the Code, will depend on the
facts and circumstances of each case for which no straitjacket
formula can be formulated but the appeal court must closely
keep in view that while protecting the right of an accused to fair H
    510     SUPREME COURT REPORTS                [2012] 10 S.C.R.

A trial and due process, the peqple who seek protection of law
  do not lose hope in legal system and the interests of the society
  are not altogether overlooked.
          43. Insofar as present case is concerned, it has been
  concurrently held by the two Judges who heard the criminal
B appeal that the appellant was denied due process of law and
  the trial held against him was contrary to the procedure
   prescribed under the provisions of the Code since he was
  denied right of representation by counsel in the trial. The Judges
  differed on the course to be followed after holding that the trial
C against the appellant was flawed. We have to consider now,
  whether the matter requires to be remanded for a de novo trial
   in the facts and the circumstances of the present case. The
   incident is of 1997. It occurred in a public transport bus when
   that bus was carrying passengers and stopped at a bus stand.
o The moment the bus stopped an explosion took place inside
   the bus that ultimately resulted in death of four persons and
   injury to twenty-four persons. The nature of the incident and the
   circumstances in which it occurred speak volume about the very
   grave nature of offence. As a matter of fact, the appellant has
E been charged for the offences under Section 302/307 IPC and
   Section 3 and, in the alternative, Section 4(b) of ES Act. It is
   true that the appellant has been in jail since 09.03.1998 and it
   is more than 14 years since he was arrested and he has
    passed through mental agony of death sentence and the retrial
F at this distance of time shall prolong the culmination of the
   criminal case but the question is whether these factors are
   sufficient for appellant's acquittal and dismissal of indictment.
   We think not. It cannot be ignored that the offences with which
   the appellant has been charged are of very serious nature and
    if the prosecution succeeds and the appellant is convicted under
G Section 302 IPC on retrial, the sentence could be death or life
    imprisonment. Section 302 IPC authorises the court to punish
    the offender of murder with death or life imprisonment. Gravity
    of the offences and the criminality with which the appellant is
    charged are important factors that need to be kept in mind,
H though it is a fact that in the first instance the accused has been
 MOHD. HUSSAIN@ JULFIKAR ALI v. STATE (GOVT. 511
        OF NCT) DELHI [R.M. LODHA, J.]
denied due process. While having due consideration to the            A
appellant's right, the nature of the offence and its gravity, the
impact of crime on the society, more particularly the crime that
has shaken the public and resulted in death of four persons in
a public transport bus can not be ignored and overlooked. It is
desirable that punishment should follow offence as closely as        B
possible. In an extremely serious criminal case of the
exceptional nature like the present one, it would occasion in
failure of justice if the prosecution is not taken to the logical
conclusion. Justice is supreme. The retrial of the appellant, in
our opinion, in the facts and circumstances, is indispensable.       c
It is imperative that justice is secured after providing the
appellant with the legal practitioner if he does not engage a
lawyer of his choice.
     44. In order to ensure that retrial of the appellant is not
prolonged and is concluded at the earliest, Mr. P. P. Malhotra,      D
Additional Solicitor General submitted that some of the sixty-
five witnesses who were earlier examined by the prosecution
but who are not necessary could be dropped by the public
prosecutor.
    45. Mr. Md. Mobin Akhtar submitted before us that he             E
would appear for the accused (appellant) in the trial. In case
he does not appear for the appellant or the appellant does not
engage the lawyer on his own, we direct that the trial court shall
provide an appropriate Advocate to the accused (appellant)
immediately.                                                         F
     46. In what we have discussed above we answer the
reference by holding that the matter requires to be remanded
for a de novo trial. The Additional Sessions Judge shall
proceed with the trial of the appellant in Sessions Case No.         G
122 of 1998 from the stage of prosecution evidence and shall
further ensure that the trial is concluded as expeditiously as
may be possible and in no case later than three months from
the date of communication of this order.
K.K.T.                                    Reference answered.        H