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IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and RAJESH KUMAR VERMA, JJ.
(16.8.2022)
Death Reference No. 1 of 2022 with Cri. App. (DB) No. 203 of 2022
State of Bihar (in 1)
Md. Major @ Mejar (in 203) ... Petitioners
Vs.
Md. Major (in 1)
State of Bihar (in 203) ... Respondents
Natural Justice – Principles of natural justice establish differences between right and wrong – Principle of natural justice has to be real, reasonable and effective – Same should not be for name sake – This principle is a 'sine qua non' of every civilized society – 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 – 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. (Para 1)
Constitution of India – Article 21 – Fair trial – 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 to arrive at a reasonable conclusion and then, for imposing appropriate punishment to accused if his guilt is established beyond all reasonable doubts – Notion of a free trial has close link with basic and universally accepted human rights – 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. (Paras 10 and 11)
Code of Criminal Procedure, 1973 – Sections 227 and 228 – Discharge of accused and framing of charge – 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 – 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.. (Paras 14 and 15)
Code of Criminal Procedure, 1973 – Sections 232 and 233 – No person should be condemned unheard – Rules of natural justice are flexible and their application depends on facts of each case as well as applicable statutory provisions – For fair and honest compliance of this provision of Section 233 of Cr.P.C., Trial Court has to grant sufficient time to accused to apply for issuance of process and to secure attendance of his witnesses before Court through Court – When undertrial prisoner has no access to his Advocate or family members due to virtual hearing before Court because of COVID-19 Pandemic, it becomes duty of Trial Court to comply with provision of Section 233 of Cr.P.C. scrupulously for preventing miscarriage of justice. (Paras 16 and 17)
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) – Code of Criminal Procedure, 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 – 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 incapacitated 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 – 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)
Mrs. Maneka Sanjay Gandhi vs. Ms. Rani Jethmalani, (1979) 4 SCC 167; Anokhilal vs. State of Madhya Pradesh, (2019) 20 SCC 196; Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158; Hussainara Khatoon vs. Home Secretary, State of Bihar, (1980) 1 SCC 98; State of Bihar vs. Balram Singh, (2022) 2 PLJR 625; M.V. Ganesh Prasad vs. M.L.Vasudevamurthy, AIR 2003 SC 39; Ranjit Thakur vs. Union of India, (1987) 4 SCC 611; Khunam Singh vs. State of Madhya Pradesh, 2019 (4) PLJR 130 – Relied.
David vs. State of Kerala, 2020 SCC Online Kerala 3368; State of U.P vs. Sambhunath Singh, (2001) 4 SCC 667 – Distinguished.
Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4 SCC 54; Manoj Pradeep Singh vs. State of Rajasthan, 2022 Live Law (SC) 557; State of Punjab vs. Gurumit Singh, (1996) 2 SCC 384; P. Ramesh vs. State, (2019) 20 SCC 593 – Referred.
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 direction to pay fine of rupe
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