2012 Supreme(SC) 27

2012 (1) Supreme 194
SUPREME COURT OF INDIA
H.L. Dattu and Chandramauli Kr Prasad, JJ.
Mohd. Hussain @ Julfikar Ali — Appellant
versus
The State (Govt. of NCT) Delhi — Respondent
Criminal Appeal No. 1091 of 2006
Decided on 11-1-2012

IMPORTANT POINTS
1. Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty.
2. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case.
3. The right to be defended by a learned counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is “prejudice” to an accused.

Headnote:As Per H.L. DATTU,J.

        Indian Penal Code,1860-Sections 302/307 and also under Section 3 of The Explosive Substances Act, 1908-Death of four persons while twenty four passengers including the conductor of bus were injured due to a bomb explosion in a blueline bus-Appellant an illiterate foreign national , unable to engage a counsel to defend himself, tried, convicted and sentenced to death for said offence by Trial Court without assignment of counsel for his defence- Such a result was confirmed by High Court on a reference made by Trial Court -Appeal- Evidence on record that evidences of 56 witnesses, out of 65 witnesses, examined by prosecution in support of indictment, including eye witnesses and Investigating Officer, were recorded by Trial Court without providing a counsel to appellant- None of the 56 witnesses were cross-examined by accused/appellant- It is only thereafter, Trial Court appointed a counsel to defend the appellant- The evidences of prosecution witnesses from 57 to 65 were recorded in the presence of the freshly appointed counsel, who thought it fit not to cross-examine any of those witnesses- In this casual manner, trial, in a capital punishment case, was concluded by Trial Court- Trial Court did not think it proper to appoint any counsel to defend appellant/accused, when counsel engaged by him did not appear at commencement of trial nor at the time of recording of evidence of prosecution witnesses- Appointment of counsel and her appearance during last stages of the trial was rather proforma than active- Not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard- Hence impugned judgments of Courts below convicting appellant held unsustainable-Matter remanded to Trial Court for fresh disposal in accordance with Law-Appeal allowed (Paras 9, 17 to 21)

       Facts of the Case :

        A. Appellant an illiterate foreign national was tried, convicted and sentenced to death for an offence under Sections 302/307 of IPC and also under Section 3 of The Explosive Substances Act, 1908 by Trial Court herein in the instant case without assignment of counsel for his defence. Such a result was confirmed by High Court on a reference made by Trial Court.

        B. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        A. Evidence on record showed that evidences of 56 witnesses, out of 65 witnesses, examined by prosecution in support of indictment, including eye witnesses and Investigating Officer, were recorded by Trial Court without providing a counsel to appellant. None of the 56 witnesses were cross-examined by accused/appellant. It is only thereafter, Trial Court appointed a counsel to defend the appellant. The evidences of prosecution witnesses from 57 to 65 were recorded in the presence of the freshly appointed counsel, who thought it fit not to cross-examine any of those witnesses. Before conclusion of trial, she had filed an application to cross-examine only one prosecution witness and that prayer in the application had been granted by Trial Court and counsel had performed formality of cross-examining this witness. In this casual manner, trial, in a capital punishment case, was concluded by Trial Court. Trial court did not think it proper to appoint any counsel to defend appellant/accused, when counsel engaged by him did not appear at commencement of trial nor at the time of recording of evidence of prosecution witnesses. The accused did not have aid of counsel in any real sense, although, he was as much entitled to such aid during the period of trial.

        B. Appointment of counsel and her appearance during last stages of the trial was rather proforma than active. Not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The necessity of counsel was so vital and imperative that failure of trial court to make an effective appointment of a counsel was a denial of due process of law. Hence Impugned judgments of Courts below were held unsustainable. Matter was remanded to Trial Court for fresh disposal in accordance with Law. Appeal was allowed.