Back
PATNA HIGH COURT
A.M. Badar and Rajesh Kumar Verma, JJ.
State of Bihar and Anr. – Petitioners
versus
Md. Major and Anr. – Respondents
Death Reference No.1 of 2022 with
Criminal Appeal (DB) No.203 of 2022
Decided on 16.8.2022
(A) Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Section 376AB – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(2)(v) – Criminal Procedure Code, 1973 – Section 207 read with Rule 50A of Criminal Court Rules – Penetrative sexual assault on female child – Death sentence – Evidence of all prosecution witnesses is seen to have been recorded in absence of accused – Entire evidence was recorded by Video Conferencing in which only Advocate of accused participated from remote point – Accused was not provided sufficient time to go through entire set of papers of investigation, ponder over it and then to consult as well as instruct his Advocate for opposing request of prosecution for framing of charges against him and from claiming discharge – Due procedure of law as prescribed by Section 207 and 227 of Cr.P.C. was not at all followed by Trial Court – Undue haste and hurry shown by Trial Court in accepting request of Investigator by flouting mandate of Section 230 of Cr.P.C. resulted in defeating ends of justice and causing prejudice to accused in his defence – Defence witnesses were incapaci-tated from acting as eyes and ears of justice due to closure of defence evidence – It is duty of court to do justice to both parties rather than leaning in favour of one side – Due process of law must not be compromised in any attempt at providing speedy justice – There is no alternative but to direct for de-novo trial of accused from stage before framing of charge as breach of mandatory provisions of law commenced before framing of charge causing miscarriage of justice – Impugned judgment and order of Trial Court quashed and set aside and matter remanded to Trial Court for fresh trial from before stage of framing charge. (Paras 29, 32, 35, 39, 41, 44, 48 and 52)
(B) Natural Justice – Rule of audi alteram partem – Rules of natural justice are flexible and their application depends on facts of each case as well as applicable statutory provisions – Principles of natural justice establish differences between right and wrong – Primary aim of principles of natural justice is to ensure equity in economic undertakings of society and people – It also defends individual liberty against any arbitrary action – Principle of natural justice has to be real, reasonable and effective – This principle is a ‘sine qua non’ of every civilized society – Idea of natural justice may not be manifestly seen in Indian constitution – However, authorities consider it as an element mandatory for management of justice – It is an idea of usual law which originates from “jus natural”, which stands for law of nature – Accused in a criminal trial is required to be given an impartial hearing by an unbiased Judge by extending him an opportunity to set up his defence along with an opportunity to controvert evidence adduced by prosecution by leading defence evidence – Each and every Judge is required to keep this basic concept of fair play in action in mind while conducting criminal trial. (Para 1)
(C) Constitution of India – Article 21 – Fair trial – Notion of a free trial has close link with basic and universally accepted human rights – Nobody can be deprived of his life or personal liberty except according to procedure established by law – Each stake holder including accused has inbuilt constitutional right declared in Article 21 of Constitution to be dealt with fairly in a criminal trial, by adherence to procedure which must be reasonable, just and fair – Failure to adopt such procedure and non-compliance of statutory procedure so also error in procedure adopted at the trial can entail consequence of setting aside conviction and sentence imposed on accused – In an overzealous efforts to decide trial of a grave offence warranting extreme penalty, it is not expected of a trial Judge to compromise due process of law – Cause of justice in such cases cannot be made to suffer by lightly brushing aside basic principle of fair opportunity of defending himself to accessed – Criminal trial is a quest for truth in which an unbiased Judge is supposed to give fair trial to both prosecuting agency as well as accused, in order to unearth truth. (Paras 10 and 11)
(D) Criminal Procedure Code, 1973 – Sections 227 and 228 – Discharge of accused and framing of charge – Opportunity of hearing contemplated at stage of Section 227 Cr.P.C. is not an empty formality and this right cannot be denied to accused – Opportunity needs to be sufficient, adequate and reasonable – Charge is not only required to be read over but also explained to accused – If charge is of grave, severe and complex nature, accused is naturally required to be given sufficient time to prepare his defence after receipt of charge-sheet with complete papers of investigation and after being made aware of exact charge against him by Trial Court under Section 228 of Cr.P.C. – Procedural fairness is even otherwise essential for enabling Judge for arriving at correct decision – Cr.P.C. does not contemplate recording of evidence of prosecution witnesses immediately on very same day after framing of charge. (Paras 14 and 15)
Result: Criminal Appeal Partly allowed. Death Reference answered in negative.
Certainly. Based on the provided legal document, here are the key points summarized:
Principles of natural justice require that an accused in a criminal trial must be given an impartial hearing by an unbiased judge. The fairness of the trial is fundamental and cannot be compromised, especially in cases involving severe penalties such as death (!) (!) .
The right to a fair trial under Article 21 of the Constitution emphasizes that no person should be deprived of life or personal liberty except according to established procedure that is reasonable, just, and fair. The trial process must uphold these constitutional guarantees (!) (!) .
The procedural safeguards prescribed in the Criminal Procedure Code (Cr.P.C.)—such as the supply of police reports, statements, and documents to the accused—must be strictly followed to ensure the accused’s right to be informed and to prepare a proper defense. Any breach of these provisions can result in a miscarriage of justice (!) (!) .
The trial must be conducted with adequate time and opportunity for the accused to understand the charges, prepare a defense, and lead evidence, particularly in serious and complex cases. Immediate recording of evidence and rapid proceedings without proper procedural adherence violate principles of natural justice and compromise the fairness of the trial (!) (!) .
The recording of evidence in the absence of the accused, especially when conducted through remote means without ensuring their presence or the opportunity for effective communication with counsel, undermines the right to a fair trial. The mandatory requirement that evidence be taken in the presence of the accused is a fundamental aspect of procedural fairness (!) (!) .
The trial process must be free from undue haste and should not be rushed to meet extraneous considerations. The judiciary must ensure that the principles of natural justice are upheld at every stage, including framing charges, recording evidence, and pronouncing judgment. Conducting proceedings in a manner that suggests bias or predetermination violates the right to an impartial tribunal (!) (!) (!) .
The conduct of the trial in this case demonstrated a disregard for procedural law, including the supply of documents, the opportunity to defend, and the presence of the accused during evidence recording. Such procedural lapses can lead to a conclusion that the trial was not fair and that the principles of natural justice were breached (!) (!) (!) .
The timing and manner of judgment—delivered shortly after hearing arguments and without proper opportunity for defense—raise concerns about the impartiality and fairness of the trial process. The court must ensure that judgments are based on a thorough and reasoned evaluation of the entire case record (!) (!) .
The trial process must be transparent, and any appearance of bias or prejudice, whether actual or perceived, can undermine the legitimacy of the proceedings. The judge's impartiality is a cornerstone of justice, and any conduct suggesting bias or predetermination must be scrutinized and rectified (!) (!) .
When procedural violations are identified that impact the fairness of the trial—such as inadequate time to prepare defense, absence of accused during evidence, or hurried judgments—the appropriate remedy is to set aside the previous proceedings and order a de novo trial from the stage before framing of charges (!) .
In summary, the core principles emphasize that a fair, just, and impartial trial is essential, and strict adherence to procedural safeguards, timely opportunity for defense, and unbiased conduct of the court are fundamental to upholding constitutional rights and ensuring justice.
JUDGMENT (ORAL)
A.M. Badar, J.—This Death Reference u/s. 366 Cr.P.C. and the connected appeal of the convict reminds this Court the following oft-quoted observation of Lord Hewart made while quashing the conviction nearly 100 years ago:—
“It is not merely of some importance but it is of fundamental importance that the justice should not only be done but should manifestly and undoubtedly be seem to be done.”
Lord Hewart went on to observe that what was important was not what was actually done but what might appear to have been done and said:—
“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
This dictum ‘Justice should manifestly and undoubtedly be seen to be done’ can be satisfied by observance of rule of ‘audi alteram partem’ and the opportunity of being heard contemplated in this rule of principle of natural justice has to be real, reasonable and effective. The same should not be for name sake – a paper opportunity particularly when the life and liberty of an accused is at the stake. This principle is a ‘sine qua non’ of every civilized society. Corollary deduced from this rule is “qui aliquid statuerit, parte inaudita altera aeuquum licet dixerit, haud aequum facerit” (he who shall decide anything without the other side having been heard although he may have said what is right will not have done what is right). The primary aim of the principles of natural justice is to ensure equity in the economic undertakings of society and people. It also defends individual liberty against any arbitrary action.
The idea of natural justice may not be manifestly seen in the Indian constitution. However, authorities consider it as an element mandatory for the management of justice. It is an idea of usual law which originates from “jus natural”, which stands for the law of nature. In simple terms, principles of natural justice establish the differences between right and wrong. Even if we go back to the ancient era during the reign of ‘Adam’ and ‘Kautilya’s Arthashastra’, the rule of law has had this stamp of natural justice, which used to be called as social justice. It was said that the king should shower justice in a manner water flows out from fountains; that is without any bias and must fall into everyone’s hand.
Having said so, undoubtedly, an accused in a criminal trial is required to be given an impartial hearing by an unbiased Judge by extending him an opportunity to set up his defence along with an opportunity to controvert the evidence adduced by the prosecution by leading the defence evidence if he so desires. Each and every Judge is required to keep this basic concept of fair play in action in mind while conducting criminal trial. With this prelude, let us turn to the facts of the instant case.
2. The present Death Reference and the connected Criminal Appeal arise out of judgment of conviction and order of sentence dated 25.01.2022 and 27.01.2022 respectively, passed by the learned Special Judge (POCSO), Araria, in Special POCSO Case No.1 of 2022, arising out of Araria Mahila Police Station Case No.137 of 2021. By this impugned judgment and order, the learned Trial Court has been pleased to convict the appellant of the offences punishable under Section 376AB of the Indian Penal Code, 1860, (IPC for the sake of brevity), under Section 4 of the Protection of Children from Sexual Offence Act, 2012, (POSCO Act for the sake of brevity) and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (Prevention of Atrocities Act for the sake of brevity). By the impugned order of sentence, the appellant came to be sentenced to death penalty for committing the offence under Section 376AB of the IPC with a direction that he be hanged by neck till he is dead. For the offence punishable under Section 3(2)(v) of the Prevention of Atrocities Act, the accused is directed to suffer imprisonment for life apart from a di
(1) Natural Justice – Principles of natural justice establish differences between right and wrong – Accused in a criminal trial is required to be given an impartial hearing by an unbiased Judge.(2) F....
(1) Denial of fair trial is as much injustice to accused as is to victim and society.(2) In hallowed halls of justice, essence of fair and impartial trial lies in steadfast embrace of judicial calm.
A fair trial must guarantee competent legal representation and adherence to procedural law, failure of which invalidates conviction.
The central legal point established in the judgment is the paramount right to fair trial and legal aid for the accused, as enshrined in the principles of fair trial and the right to life and personal....
Provisions of Section 303 of the Cr.P.C. gives right to any person accused of an offence before a criminal Court to be defended by a pleader of his choice. The provisions of Section 304 of the Code o....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
