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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, KRISHNA MURARI, JJ.
Anokhilal – Appellant
Versus
State Of Madhya Pradesh – Respondent
Criminal Appeal Nos.62-63 of 2014
Decided on : 18-12-2019
(a) Code of Criminal Procedure, 1973 - Section 309(1), Proviso, sections 227 and 228 r/w Article 39-A - Adequate time to Amicus Curiae for preparing defence of accused - Instantly Amicus Curiae called upon to defend the accused at the stage of framing of charges on the same day of his appointment - Appellant denied his right to defence. (Para 14)
(b) Code of Criminal Procedure, 1973 - Section 309(1), Proviso - Expeditious disposal of case - Desirable - But not at the expense of fairness and opportunity to accused. (Para 18)
(c) Constitution of India - Article 39-A - Appointment of amicus curiae - In cases likely to result in life or death sentence - Advocates with at least 10 years experience at Bar should be considered - Some reasonable time should be given to amicus curiae to prepare the matter - Amicus curiae must normally be granted to have meetings and discussion with the concerned accused. (Para 22)
Facts of the case:
A missing report was lodged by one Ramlal that his daughter aged about nine years was missing since 6 pm and that the appellant, his neighbour had sent the victim to get a bidi from a kirana shop but the victim never returned back. The body of the victim was found in an open field.
The appellant was arrested, charge-sheet was filed in the concerned court and the case was committed to Sessions Court.
Charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012.
The appellant was convicted u/s 6, POSCO Act and section 363(4), IPC and sentenced to death.
The High Court affirmed the view taken by the Trial Court and upheld the death sentence and other sentences imposed by the Trial Court.
Finding of the Court:
By not giving time to amicus curiae to prepare the matter, accused was denied his right to defence.
Result: Appeal allowed, de novo consideration directed.
JUDGMENT :
Uday Umesh Lalit, J.
1. These appeals by special leave challenge the final judgment and order dated 27.06.2013 passed by the High Court[The High Court of Madhya Pradesh at Jabalpur] in Criminal Reference No.4 of 2013 and Criminal Appeal No.748 of 2013.
2. The relevant facts for the purposes of these appeals, in brief, are as under:
(A) On 30.01.2013 a missing report was lodged by one Ramlal that his daughter (hereinafter referred to as ‘the victim’) aged about nine years was missing since 6 pm and that the appellant, his neighbour had sent the victim to get a bidi from a kirana shop but the victim never returned back. Pursuant to this reporting, FIR No.38 of 2013 was registered on 30.01.2013 with Police Station Chaigaon Makhan, Khandwa for offences under Sections 363, 366 of the Indian Penal Code.1860 (‘IPC’, for short) against the appellant.
(B) The body of the victim was found in an open field on 01.02.2013.
(C) The appellant was arrested on 04.02.2013, and after completion of investigation charge-sheet was filed on 13.02.2013 in the concerned court and the case was committed to Sessions Court on 18.2.2013. The case was posted for 19.02.2013 to consider whether charges be framed or not.
(D) It appears that since no Advocate had entered appearance on behalf of the appellant, on 18.02.2013 a learned Advocate was appointed by the Legal Aid Services Authority to represent the appellant on 19.02.2013. That learned Advocate, however, did not appear on 19.02.2013 when the case was taken up, and as such another learned Advocate came to be appointed through Legal Aid Services to represent the appellant. Such appointment was done on 19.02.2013 and on the same day the charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012.
(E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution witnesses were examined.
(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court were :-
“(i) 27.02.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.
The prosecution filed application together with letter of District Prosecution Officer and with copy of warrant etc documents. Copies are supplied. The defense has no objection in taking above documents on record, hence considering the reasons of as explained for delay the application is liable to be accepted and above documents are taken on record.
The prosecution stated that it does not want to produce any other oral evidence it has been requested that DNA report and FSL report will be placed on record as and when they are received, which is immediately to be received, not any other oral evidence are to be adduced and besides placing on record above report, rest of evidence was declared to be ended.
It would be just and proper to examine accused under Section 313 Cr.P.C. for evidence available. Hence, accused examined under Section 313 Cr.P.C. On entering in defense, the accused stated that he does not want to adduce any evidence in defense. Not any written statement under Section 232 (2) Cr.P.C. has been filed.
Put up on 28.02.2013 for placing on record DNA report etc and final arguments.
Sd/-(illegible)
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences Act,
Khandwa
(ii) 28.02.2013
State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.
An application was filed on behalf of prosecution with FSL reports. Copies supplied. Heard arguments.
Since there is no effective objection regarding allowing above application and taking on record above FSL report and even otherwise these
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