IMPORTANT POINT
De novo trial - when warranted.

JUDGMENT

R.M. Lodha, J.- 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 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 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 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-B of Indian Penal Code (for short, ‘IPC’) and Sections 3 and 4 of the Explosive Substances Act, 1908 (for short, ‘ES Act’ ). The appellant and the other three accused were committed to the Court of Session by the concerned Magistrate. The three 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.

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 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- 1P-3088 on 30.12.1997 with intention to cause death 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, 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 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 byhis conviction and sentence, the appellant 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 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 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 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 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 b