Holding

The trial court’s failure to provide the appointed legal‑aid counsel reasonable time to prepare and to ensure a competent defence violated the appellant’s right to a fair trial, warranting remission of the case for fresh examination of the key witness.

Summary

The appellant, Waris, was convicted under Sections 302, 201, 376(2)(i) and 376AB of the IPC and Sections 5 and 6 of the POCSO Act for raping and killing his step‑daughter. During the trial, his original counsel withdrew and he could not afford a new lawyer, so the trial court appointed a legal‑aid defence counsel on the same day the star prosecution witness (the victim's mother, PW‑1) was to be examined. The court proceeded to record PW‑1's testimony and allowed the newly appointed counsel to cross‑examine her without giving any time to prepare or providing the case file, which the appellant argued deprived him of a fair trial. The Supreme Court held that such denial of a competent, experienced defence counsel, especially in a capital‑offence case, vitiated the trial and amounted to a mistrial. Relying on the constitutional guarantee of a fair trial and provisions of the Bharatiya Nagarik Suraksha Sanhita and CrPC, the Court exercised its powers under Section 408 BNSS (corresponding to Section 367 CrPC) and Section 432 BNSS (corresponding to Section 391 CrPC) to remit the matter for a fresh examination of PW‑1. The order also directed that the legal‑aid counsel be given at least 15 days to prepare and that appropriate witness‑protection measures be ensured.

Issues considered

Whether the trial court erred in appointing a legal‑aid defence counsel on the same day as the examination of the star witness without giving the counsel reasonable time to prepare.
Whether the denial of a competent, experienced defence counsel in a capital‑offence case violates the accused's right to a fair trial under Article 22(1) of the Constitution.
Whether the appellate court can remit the case for further evidence under Sections 408 and 432 of the Bharatiya Nagarik Suraksha Sanhita (corresponding to Sections 367 and 391 of the CrPC).

Legislation cited

Bharatiya Nagarik Suraksha Sanhita, 2023s. 408, s. 432
Code of Criminal Procedure, 1973s. 207, s. 367, s. 391
Indian Penal Code, 1860s. 201, s. 302, s. 376(2)(i), s. 376AB
Protection of Children from Sexual Offences Act, 2012s. 5, s. 6

Headnote

Issue for Consideration Whether Trial Court ought to have given proper time and opportunity to the legal aid defence counsel to prepare the matter and should have deferred the cross-examination of PW-1 by a reasonable time so as to ensure fairness in the proceedings. Headnotes† Bharatiya ss.408, 432 – Code of Criminal Procedure, 1973 – ss.367, 391 – Penal Code, 1860 – ss.302, 201, 376(2)(i), 376AB – Protection of Children from Sexual Offences Act, 2012 – ss.5, 6 – Accused- appellant charged for subjecting his step-daughter to sexual

Subjects

Legal Aid Defence CounselSemi‑literateRustic villagerCapital punishmentDenial of competent defence counselFair trialReasonable opportunity to prepareMistrialRemitWitness protection scheme

Judgment

[2025] 5 S.C.R. 842 : 2025 INSC 712

Waris
v.
State of Madhya Pradesh
(Criminal Appeal No(s). 429-430 of 2020)
08 May 2025
[Vikram Nath, Sanjay Karol and Sandeep Mehta,* JJ.]

Issue for Consideration
Whether Trial Court ought to have given proper time and opportunity
to the legal aid defence counsel to prepare the matter and should
have deferred the cross-examination of PW-1 by a reasonable time
so as to ensure fairness in the proceedings.

Headnotes†
Bharatiya Nagarik Suraksha Sanhita, 2023 – ss.408, 432 –
Code of Criminal Procedure, 1973 – ss.367, 391 – Penal
Code, 1860 – ss.302, 201, 376(2)(i), 376AB – Protection of
Children from Sexual Offences Act, 2012 – ss.5, 6 – Accused-
appellant charged for subjecting his step-daughter to sexual
assault and throttling her to death – On date of examination
of PW-1, advocate of accused-appellant was not present –
Accused-appellant pleaded he could not afford the fees
and was unable to engage counsel – On prayer of accused-
appellant, Trial Court appointed legal aid defence counsel to
represent accused-appellant – On the very same day, trial
court proceeded to record the evidence of PW-1 and ensured
that cross-examination of witness is completed by the legal
aid counsel – Subsequently, accused-appellant was convicted
and awarded death sentence – The High Court confirmed the
death sentence – Correctness:
Held: The documents available on the record indicate that the
accused-appellant was shown to be educated till 4th standard
only – Thus, there is no dispute on the aspect that the accused-
appellant was a semi-literate, rustic villager – The fact that the
accused-appellant hails from a very poor background is also
borne out from the record inasmuch as, he could not even afford
the fees of the lawyer he had engaged to defend him, in a case
which had the potential of capital punishment right from the

* Author
[2025] 5 S.C.R. 843

Waris v. State of Madhya Pradesh

inception – Denial of a competent experienced defence counsel to
an accused tantamounts to deprivation of fair trial – Providing an
experienced legal aid defence counsel to an unrepresented accused
in criminal proceedings is within the scope of the Fundamental
Right guaranteed by Art. 22(1) of the Constitution of India – In
the instant case, the order sheet of the trial Court does not even
indicate whether the legal aid defence counsel was provided with
the copies of the documents relied upon by the prosecution by
following the mandate of s.207 CrPC – The trial Court ought to
have given proper time and opportunity to the legal aid defence
counsel to prepare the matter – Providing such an opportunity to
the accused-appellant was absolutely essential and imperative for
a just decision of the case – This Court hereby exercise powers
u/s.408 BNSS (corresponding, s.367 CrPC) r/w. s.432 of BNSS
(corresponding, s.391 CrPC) and remit the matter back to the
trial Court, i.e., Second ASJ and Special Judge (POCSO Act), for
further examination of the star prosecution witness, i.e., (PW-1) –
The trial Court to ensure that the complete record is provided to
the legal aid defence counsel well in advance. [Paras 14, 15, 17,
19, 20, 21, 23, 25, 27]
Legal Aid Authorities – National Legal Service Authority – Legal
Aid Defense Counsel – Core Principles – Discussed. [Para 16]
Witness – Witness Protection Scheme – Appropriate protection
to witness – Directions issued. [Paras 26-29]

Case Law Cited
Mohd. Hussain @ Zulfikar Ali v. State (Government of NCT of
Delhi) [2012] 1 SCR 64 : (2012) 2 SCC 584; Anokhilal v. State of
Madhya Pradesh [2019] 18 SCR 1196 : (2019) 20 SCC 196; Ashok
v. State of Uttar Pradesh (2025) 2 SCC 381; Atma Ram v. State of
Rajasthan [2019] 5 SCR 714 : (2019) 20 SCC 481 – referred to.

List of Acts
Bharatiya Nagarik Suraksha Sanhita, 2023; Code of Criminal
Procedure, 1973; Penal Code, 1860; Protection of Children from
Sexual Offences Act, 2012.

List of Keywords
Legal Aid Defense Counsel; Semi-literate; Rustic villager; Capital
punishment; Denial of competent experienced defence counsel;
844 [2025] 5 S.C.R.

Supreme Court Reports

Deprivation of fair trial; De novo trial; Fundamental Right;
Reasonable opportunity to prepare and conduct the case; Mistrial;
Remit; Witness protection scheme.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
429-430 of 2020
From the Judgment and Order dated 18.11.2019 of the High Court of
M.P. at Indore in CRRFC No. 1 of 2019 and CRA No. 1854 of 2019

Appearances for Parties
Advs. for the Appellant:
Chander Uday Singh, Sr. Adv., Ms. Sakshi Jain, Ms. Viddusshi
Shandilya, Ms. Bidya Mohanty, Ms. Katyayani Suhrud, Abhishek
Kalaiyarasan, Kaustubh Anshuraj.
Advs. for the Respondent:
Bhupendra Pratap Singh, D.A.G., Abhimanyu Singh (ga),
Pashupathi Nath Razdan, Mirza Kayesh Begg, Ms. Maitreyee
Jagat Joshi, Astik Gupta, Ms. Akanksha Tomar.

Judgment / Order of the Supreme Court

Order

Mehta, J.

1. Heard.
2. The appellant herein1 was arraigned as an accused in connection with
FIR bearing Crime No. 98 of 2018 dated 24th April, 2018 registered
at Police Station Piploda, District Ratlam for the offences punishable
under Sections 302, 201, 376(2)(i), and 376AB of the Indian Penal
Code, 18602 and Sections 5/6 of the Protection of Children from Sexual
Offences Act, 20123. The charge against the accused-appellant was
of subjecting his own step-daughter being Musst. ‘A’ to sexual assault

1 Hereinafter, referred to as “accused-appellant”.
2 Hereinafter, being referred to as ‘IPC’.
3 Hereinafter, being referred to as ‘POCSO Act’.
[2025] 5 S.C.R. 845

Waris v. State of Madhya Pradesh

and then throttling her to death. The prime witness of the incident
was none other than the mother of the child victim and wife of the
accused-appellant, namely, Smt. Salma Bi (PW-1). A charge sheet
was filed against the accused-appellant for the aforesaid offences in
the Court of Second ASJ and Special Judge (POCSO Act), Jaora,
District Ratlam, Madhya Pradesh4 where Special Case No. 3 of 2018
came to be registered on 18th June, 2018.
3. The matter was posted by the trial Court for consideration of
arguments on charge on 21st June, 2018, on which date, advocate
engaged by the accused-appellant appeared and refused to plead
on his behalf. On this, the accused-appellant requested that he may
be given some time to address the argument on charge because
he would be engaging another counsel to represent him in the trial.
The matter was thereupon, deferred to 2nd July, 2018. On that date,
Advocate Mr. Mohd. Ahmad Khan put in appearance on behalf of
the accused-appellant and was permitted to file his vakalatnama. On
the same day, the trial Court framed charges against the accused-
appellant for the offences punishable under Sections 376(2)(f),
376(2)(i), 376(2)(n), 376AB, 302 and 201 of the IPC and Sections
5/6 of the POCSO Act. The accused-appellant abjured his guilt and
claimed trial. The trial Court posted the matter on 6th July, 2018 for
fixing the calendar of trial.
4. On 6th July, 2018, Advocate Mr. Mohd. Ahmad Khan appeared on
behalf of the accused-appellant. The prosecution suggested two dates
for examining its witnesses. On the first date, i.e., 16th July, 2018,
the star prosecution witness i.e., Smt. Salma Bi (PW-1) was to be
summoned whereas, two more witnesses were to be summoned
on 17th July, 2018.
5. On 16th July, 2018, the accused-appellant was presented before
the trial Court from jail. The counsel engaged by him i.e., Advocate
Mr. Mohd. Ahmad Khan was not present. The accused-appellant
pleaded that he could not afford the fees of his counsel and thus,
was unable to engage a counsel on his own. He prayed to the trial
Court for being provided the services of a legal aid defence counsel.
The trial Court accepted the said prayer of the accused-appellant
and appointed Advocate Mr. Ajay Srivastava as a legal aid defence

4 Hereinafter, being referred to as ‘trial Court’.
846 [2025] 5 S.C.R.

Supreme Court Reports

counsel to represent the accused-appellant. On the very same
day, the trial Judge proceeded to record the evidence of the star
prosecution witness, i.e., Salma Bi (PW-1) and also ensured that
the legal aid defence counsel completed the cross-examination from
the said witness.
6. The trial Court upon conclusion of the trial convicted the accused-
appellant, vide judgment dated 17th December, 2018 for the offences
punishable under Sections 376(2)(f), 376(2)(n), 376AB, 302 and 201
of the IPC and Sections 5/6 of the POCSO Act and sentenced him
in the terms indicated below: -

Sections Sentence Awarded
376AB IPC Death sentence along with fine of
Rs. 5,000/- and in default to undergo
1-year rigorous imprisonment.
302 IPC Death sentence along with fine of
Rs. 5,000/- and in default to undergo
1-year rigorous imprisonment.
201 IPC Rigorous imprisonment of 5 years
along with fine of Rs. 5,000/-.

7. The accused-appellant preferred an appeal5 assailing his conviction
and the trial Court forwarded a reference6 under Section 366 of the
Code of Criminal Procedure, 19737 to the High Court of Madhya
Pradesh at Indore8 for confirmation of the death sentence.

8. Before the High Court, a specific plea was taken on behalf of the
accused-appellant that he was not provided proper opportunity of
defence inasmuch as the legal aid defence counsel appointed on
his behalf was totally inexperienced. Thus, evidently, the accused-
appellant had raised an objection regarding the competence and
capability of the legal aid defence counsel. However, the High
Court did not give much credence to the said pertinent objection
raised on behalf of the accused-appellant and vide judgment dated

5 Criminal Appeal No. 1854 of 2019.
6 Criminal Reference No. 1 of 2019.
7 For short “CrPC”.
8 Hereinafter, being referred to as ‘High Court’.
[2025] 5 S.C.R. 847

Waris v. State of Madhya Pradesh

18th November, 2019 proceeded to dismiss his appeal while answering
the reference in affirmative thereby, confirming the penalty of death
sentence awarded to the accused-appellant by the trial Court.

9. Being aggrieved, the accused-appellant has preferred the instant
appeal by special leave before this Court.

10. Learned senior counsel Mr. Chander Uday Singh appearing on behalf
of the accused-appellant at the very outset, vehemently and fervently
urged that the accused-appellant has been seriously prejudiced on
account of the fact that the legal aid defence counsel appointed
by the trial Court to conduct the proceedings on his behalf was an
inexperienced hand and in addition thereto, the said counsel was not
given even the bare minimum time required to prepare the brief and
conduct the cross-examination from the witnesses. The free legal
aid counsel was appointed on 16th July, 2018 because the accused-
appellant expressed his inability to pay the fees of the counsel
engaged by him. On the very same day, the trial Court appointed a
legal aid defence counsel and compelled him to conduct the cross-
examination from the star prosecution witness, i.e., Smt. Salma Bi
(PW-1), on whose testimony the entire fulcrum of the prosecution
case is based.

11. He contended that the accused-appellant deserves an opportunity
to fair trial by setting aside the impugned judgments and remanding
the matter to the trial Court for de novo proceedings.

12. Per contra, learned counsel representing the respondent-State
has opposed the submissions advanced by learned senior counsel
appearing on behalf of the accused-appellant. He urged that the
accused-appellant never raised the issue of denial of fair opportunity
or prejudice either before the trial Court or the High Court. This
contention is being raised for the first time before this Court. He urged
that if at all, the accused-appellant felt that he had been deprived of
an opportunity to effectively cross-examine the prosecution witnesses,
he could have moved an application under Section 311 CrPC before
the trial Court itself for recalling the concerned witnesses. This highly
belated plea of lack of opportunity to fair trial is nothing but a ploy
to sabotage the case of the prosecution, and to make an effort to
win over the witnesses by asking for a de novo trial.
848 [2025] 5 S.C.R.

Supreme Court Reports

13. We have given our thoughtful consideration to the submissions
advanced at bar and have gone through the material available on
record.

14. The documents available on the record indicate that the accused-
appellant was shown to be educated till 4th standard only. Thus,
there is no dispute on the aspect that the accused-appellant was
a semi-literate, rustic villager. The fact that the accused-appellant
hails from a very poor background is also borne out from the record
inasmuch as, he could not even afford the fees of the lawyer he had
engaged to defend him, in a case which had the potential of capital
punishment right from the inception.

15. This Court has observed time and again that denial of a competent
experienced defence counsel to an accused tantamounts to
deprivation of fair trial. This apprehension would be magnified
where the accused-appellant is charged for offences punishable
with life imprisonment/death penalty. There is a plethora of similar
cases where this Court has been compelled to acquit the accused
or remand the proceedings to the trial Court for conducting de novo
trial after providing an experienced free legal aid defence counsel to
the accused. We may gainfully refer to Mohd. Hussain @ Zulfikar
Ali v. State (Government of NCT of Delhi)9; Anokhilal v. State of
Madhya Pradesh10 and Ashok v. State of Uttar Pradesh11.

16. At this stage, it must be observed that significant strides have
been made by legal aid authorities in India for creation of a robust
mechanism so as to provide effective and efficient legal aid services
to the poor and needy in the criminal justice system. The National
Legal Services Authority (NALSA) has been at the forefront of these
efforts and has played a major role in expanding legal aid services
to people in need throughout the country. This has been further
supplemented by the introduction of the Legal Aid Defense Counsel
Scheme, 2022, which embodies the following core principles: -
• Increase in Availability and accessibility of Legal Aid Defense
counsels;

9 (2012) 2 SCC 584.
10 (2019) 20 SCC 196.
11 (2025) 2 SCC 381.
[2025] 5 S.C.R. 849

Waris v. State of Madhya Pradesh

• Effective and efficient representation by experienced lawyers;
• Timely and lively Client Consultations;
• Effective monitoring and mentoring of legal aided cases;
• Professional management of legal aid work in criminal matters;
• Enhanced responsiveness leading to updating legal aid seekers
about the progress of their cases;
• Ensuring accountability on the part of the legal aid providers.
The realization of the aforesaid principles will go a long way in
providing qualitative and competent legal services in criminal matters
to all eligible persons. This will further help with the management
and implementation of the legal aid system in a more professional
manner, especially in criminal matters.
17. Providing an experienced legal aid defence counsel to an
unrepresented accused in criminal proceedings is within the scope of
the Fundamental Right guaranteed by Article 22(1) of the Constitution
of India and gets along with the aims and objectives of the Legal
Aid Defence Counsel Scheme floated by NALSA.
18. It cannot be gainsaid that once a legal aid defence counsel is provided
to the accused, more particularly, in a case involving offences where
capital punishment is provided as a sentence, the trial Court must
ensure that the counsel so appointed gets a reasonable opportunity
to prepare and conduct the case on behalf of the accused. Failure
to do so would vitiate the proceedings as being a case of a mistrial.
This is what has precisely happened in this case.
19. It is clearly borne out from the record that initially the lawyer engaged
on behalf of the accused-appellant refused to plead the case on his
behalf. The second lawyer appointed by the accused-appellant did
not appear before the trial Court on 16th July, 2018 when the star
prosecution witness i.e., Smt. Salma Bi (PW-1) had been summoned
to testify at the trial. The trial Court accepted the request of the
accused-appellant and appointed Advocate Shri Ajay Srivastava as
a free legal aid defence counsel to conduct the trial on behalf of the
accused-appellant. The order sheets of the trial Court clearly indicate
that the legal aid counsel was appointed on 16th July, 2018 and on
the very same day, the trial Court proceeded to record the complete
850 [2025] 5 S.C.R.

Supreme Court Reports

deposition of Smt. Salma Bi (PW-1), including the cross-examination
from the said witness. The order sheet of the trial Court does not
even indicate whether the legal aid defence counsel was provided
with the copies of the documents relied upon by the prosecution by
following the mandate of Section 207 CrPC, which is equivalent to
Section 230 of Bhartiya Nagrik Suraksha Sanhita, 202312.
20. We have perused the cross-examination conducted by the legal aid
defence counsel from the star prosecution witness, i.e., Smt. Salma
Bi (PW-1) and find that there are certain vital aspects of the case on
which hardly any question was put to the said witness. Thus, grave
prejudice caused by undue haste is writ large on the face of record
by the manner in which the trial Court proceeded to provide the
services of the free legal aid counsel to the accused-appellant and
thereafter proceeded to record the testimony of the star prosecution
witness, i.e., Smt. Salma Bi (PW-1).
21. We hasten to add that apart from the said deviation, the trial
Court conducted the proceedings with remarkable precision and
thoroughness warranted in a case of this nature and completed
the trial of the case within 6 months from the date of filing of the
chargesheet. However, the aforesaid deviation by the trial Court
(supra) which may have been unintentional and inadvertent has led
to grave prejudice being caused to the defence thereby compelling
us to exercise powers under Section 408 BNSS (corresponding,
Section 367 CrPC) read with Section 432 of BNSS (corresponding,
Section 391 CrPC). For ready reference, the aforesaid provisions
are quoted herein below: -

“408. Power to direct further inquiry to be made or
additional evidence to be taken. —
(1) If, when such proceedings are submitted, the High
Court thinks that a further inquiry should be made into, or
additional evidence taken upon, any point bearing upon the
guilt or innocence of the convicted person, it may make
such inquiry or take such evidence itself, or direct it to be
made or taken by the Court of Session.

12 For short “BNSS”.
[2025] 5 S.C.R. 851

Waris v. State of Madhya Pradesh

(2) Unless the High Court otherwise directs, the presence
of the convicted person may be dispensed with when such
inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made
or taken by the High Court, the result of such inquiry or
evidence shall be certified to such Court.
432. Appellate Court may take further evidence or
direct it to be taken. —
(1) In dealing with any appeal under this Chapter, the
Appellate Court, if it thinks additional evidence to be
necessary, shall record its reasons and may either take
such evidence itself, or direct it to be taken by a Magistrate
or, when the Appellate Court is a High Court, by a Court
of Session or a Magistrate.
(2) When the additional evidence is taken by the Court
of Session or the Magistrate, it or he shall certify such
evidence to the Appellate Court, and such Court shall
thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be
present when the additional evidence is taken.
(4) The taking of evidence under this section shall be
subject to the provisions of Chapter XXIII, as if it were
an inquiry.”
22. In this regard, we may gainfully refer to the judgment of this Court
in Atma Ram v. State of Rajasthan13, wherein it was held: -
“22. According to Section 366 when a Court of Session passes
a sentence of death, the proceedings must be submitted to the
High Court and the sentence of death is not to be executed
unless it is confirmed by the High Court. Section 367 then
proceeds to lay down the power of the High Court to
direct further enquiry to be made or additional evidence
to be taken. Section 368, thereafter, lays down the power of
the High Court to confirm the sentence so imposed or annul

13 (2019) 20 SCC 481.
852 [2025] 5 S.C.R.

Supreme Court Reports

the conviction. One of the powers which the High Court can
exercise is one under Section 368(c) of the Code and that is
to “acquit the accused person”. Pertinently, the power to acquit
the person can be exercised by the High Court even without
there being any substantive appeal on the part of the accused
challenging his conviction. To that extent, the proceedings
under Chapter XXVIII which deal with “submission of death
sentences for confirmation” is a proceeding in continuation of
the trial. These provisions thus entitle the High Court to direct
further enquiry or to take additional evidence and the High
Court may, in a given case, even acquit the accused person.
The scope of the chapter is wider. Chapter XXIX of the
Code deals with “Appeals”. Section 391 also entitles the
appellate court to take further evidence or direct such
further evidence to be taken. Section 386 then enumerates
powers of the appellate court which inter alia includes the
power to “reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried by a court
of competent jurisdiction subordinate to such appellate
court or committed for trial”. The powers of the appellate
court are equally wide. The High Court in the present case
was exercising powers both under Chapters XXVIII and XXIX
of the Code. If the power can go to the extent of ordering
a complete retrial, the exercise of power to a lesser extent,
namely, ordering de novo examination of twelve witnesses
with further directions as the High Court has imposed in
the present matter, was certainly within the powers of the
High Court. There is, thus, no infraction or jurisdictional
error on the part of the High Court.
23. It is true that as consistently laid down by this Court,
an order of retrial of a criminal case is not to be taken
resort to easily and must be made in exceptional cases. For
example, it was observed by this Court in Ukha Kolhe v. State
of Maharashtra [Ukha Kolhe v. State of Maharashtra, (1964) 1
SCR 926 : AIR 1963 SC 1531 : (1963) 2 Cri LJ 418] , as under:
(AIR p. 1537, para 11)
“11. An order for retrial of a criminal case is made in
exceptional cases, and not unless the appellate court
is satisfied that the court trying the proceeding had
[2025] 5 S.C.R. 853

Waris v. State of Madhya Pradesh

no jurisdiction to try it or that the trial was vitiated
by serious illegalities or irregularities or on account
of misconception of the nature of the proceedings
and on that account in substance there had been no
real trial or that the prosecutor or an accused was,
for reasons over which he had no control, prevented
from leading or tendering evidence material to the
charge, and in the interests of justice the appellate
court deems it appropriate, having regard to the
circumstances of the case, that the accused should
be put on his trial again. An order of retrial wipes
out from the record the earlier proceeding, and
exposes the person accused to another trial which
affords the prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will not
ordinarily be countenanced when it is made merely
to enable the prosecutor to lead evidence which he
could but has not cared to lead either on account
of insufficient appreciation of the nature of the case
or for other reasons. Harries, C.J., in Ramanlal
Rathi v. State [Ramanlal Rathi v. State, 1950 SCC
OnLine Cal 62 : AIR 1951 Cal 305] : (SCC OnLine
Cal para 10)
‘10. If at the end of a criminal prosecution
the evidence leaves the Court in doubt
as to the guilt of the accused the latter is
entitled to a verdict of not guilty. A retrial
may be ordered when the original trial
has not been satisfactory for particular
reasons, for example, if evidence had been
wrongly rejected which should have been
admitted, or admitted when it should have
been rejected, or the Court had refused to
hear certain witnesses who should, have
been heard. But, I have never known of
a case where a retrial can be ordered on
the ground that the prosecution did not
produce the proper evidence and did not
know how to prove their case.’ ”
854 [2025] 5 S.C.R.

Supreme Court Reports

24. The order passed by the High Court in the present
matter was not to enable the prosecutor to rectify
the defects or infirmities in the evidence or to enable
him to lead evidence which he had not cared to lead
on the earlier occasion. The evidence in the form of
testimony of those twelve witnesses was led and
those witnesses were cross-examined. There was no
infirmity except the one that the evidence was not led
in the presence of the appellants. The remedy proposed
was only to rectify such infirmity, and not to enable the
prosecutor to rectify defects in the evidence.”
(emphasis supplied)

23. In the circumstances indicated above, we are unequivocal on the
aspect that the trial Court ought to have given proper time and
opportunity to the legal aid defence counsel to prepare the matter
and should have deferred the cross-examination of Smt. Salma Bi
(PW-1) by a reasonable time so as to ensure fairness in the
proceedings both for the prosecution and the defence and thereby,
dispelling the sense of prejudice to the accused-appellant.
24. We further feel that providing such an opportunity to the accused-
appellant was absolutely essential and imperative for a just decision
of the case.
25. In wake of the decision made hereinabove, we hereby exercise
powers under Section 408 BNSS (corresponding, Section 367
CrPC) read with Section 432 of BNSS (corresponding, Section 391
CrPC) and remit the matter back to the trial Court, i.e., Second ASJ
and Special Judge (POCSO Act), Jaora, District Ratlam, Madhya
Pradesh for further examination of the star prosecution witness, i.e.,
Smt. Salma Bi (PW-1).
26. The witness Smt. Salma Bi (PW-1) shall be summoned in the Court
and the accused-appellant shall be provided appropriate opportunity
to conduct cross-examination from the said witness. There has been a
significant time gap between the incident and the direction to recall the
witness. Thus, there would be an imminent possibility of the defence
trying to win over the witness or the witness experiencing diminished
memory owing to the long-time gap. We, therefore, direct that the
trial Court and the District Superintendent of Police shall ensure that
[2025] 5 S.C.R. 855

Waris v. State of Madhya Pradesh

appropriate protection is provided to the witness as warranted under
the ‘witness protection scheme’. The witness may be provided proper
counselling by a Senior/Special Public Prosecutor before stepping
into the witness box for deposition. If desired, an experienced legal
aid defence counsel shall be appointed to represent the accused-
appellant for conducting cross-examination from the witness.
27. If required, the trial Court shall ensure that the complete record is
provided to the legal aid defence counsel well in advance and at least
15 days before the date on which the witness is to be summoned for
further examination. The prosecution, if so required, shall be given
a reasonable opportunity to put additional questions to the witness
by way of re-examination.
28. It is made clear that the accused-appellant would be at liberty to
engage his own counsel or he may also get the cross-examination
conducted by the counsel assisting him under Project 39A. If the
original trial Court record has been summoned, the Registry of this
Court shall remit the same back to the trial Court forthwith.
29. The accused-appellant shall be permitted to remain present in the
proceedings virtually from jail by strictly adhering to the procedure
provided for trials under the POCSO Act. The trial Court shall
summon Smt. Salma Bi (PW-1) for further examination in the terms
indicated above on 11th June, 2025. The original record along with the
additional statement of Smt. Salma Bi (PW-1) recorded in compliance
of this order shall be forwarded to this Court forthwith once such
proceedings are completed.
30. List on 17th July, 2025 for hearing.

Result of the case: Matter listed for hearing.

†
Headnotes prepared by: Ankit Gyan