Supreme Court of India
Ashok vs The State Of Uttar Pradesh on 2 December, 2024
Author: Abhay S. Oka
Bench: Abhay S. Oka
2024 INSC 919
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 771 OF 2024
ASHOK …APPELLANT
VERSUS
STATE OF UTTAR PRADESH …RESPONDENT
JUDGMENT
ABHAY S. OKA, J.
FACTUAL ASPECT
1. This is a very unfortunate case. The victim of the
offence was ten years old at the time of the incident. On
27th May 2009, around 9.00 a.m., she and her first cousin,
PW-2, had gone to a pasture to graze her goats. The age of
PW-2 was seven years at that time. As the victim was
Signature Not Verified
thirsty, she went near a tubewell cabin. The appellant-
Digitally signed by
ANITA MALHOTRA
Date: 2024.12.02
17:51:13 IST
Reason:
accused was working as an operator of the tubewell
Criminal Appeal No. 771 of 2024 Page 1 of 37
appointed by the owner of the tubewell. The victim
requested the appellant to provide drinking water. The
allegation of the prosecution is that, with evil intentions,
the appellant took her inside the cabin. He committed rape
on her and, after that, murdered her. According to the
prosecution’s case, PW-2 saw the appellant forcibly taking
the victim inside the cabin and raping her. By 11.00 a.m.,
PW-2 returned to PW-1, the victim’s father. PW-1 was the
uncle of PW-2. After PW-2 narrated the story to PW-1, he
went to the tubewell cabin to find the victim and found the
dead body of the victim hidden in a haystack in that cabin.
On being questioned by PW-1, the appellant fled from the
spot and thereafter, PW-1 registered the First Information
Report.
2. The Trial Court, by judgment and order dated 24th
December 2012, convicted the appellant for the offences
punishable under Sections 376, 302 and 201 of the Indian
Penal Code (for short, ‘the IPC’). The Trial Court also
convicted the appellant under the provisions of Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes
Criminal Appeal No. 771 of 2024 Page 2 of 37
(Prevention of Atrocities) Act, 1989 (for short, ‘the SCST
Act’). The Trial Court imposed capital punishment.
3. The High Court heard the reference under Section
366 of the Code of Criminal Procedure, 1973 (for short, ‘the
CrPC’) with an appeal preferred by the appellant. Though
the High Court confirmed the conviction, the death penalty
was set aside and the appellant was sentenced to undergo
life imprisonment for the remainder of his natural life
subject to the exercise of powers of grant of remission or
grant of clemency by the constitutional functionaries.
4. The present appeal is against the judgments
mentioned above. By order dated 20th May 2022, this
Court granted bail to the appellant after noting that he had
undergone actual incarceration for about 13 years. We
may note here that earlier, learned counsel Shri M Shoeb
Alam was appointed as amicus curiae to espouse the cause
of the appellant. After his designation as a senior advocate,
he continued to assist this Court. Shri Talha Abdul
Rahman, Advocate-on-Record, was appointed amicus
curiae to assist the learned senior counsel.
Criminal Appeal No. 771 of 2024 Page 3 of 37
SUBMISSIONS
5. The learned senior counsel appearing for the
appellant has taken us through the evidence of the
prosecution witnesses. Inviting our attention to evidence
of PW-1, Heera Lal, the father of the victim, he pointed out
that the version of the witness in his examination-in-chief
is based on what was reported to him by PW-2, the minor
witness. But, if we compare the depositions of PW-2 with
the examination-in-chief of PW-1, there is a significant
variance between the version of PW-2 as stated by PW-1
and what PW-2 stated in his examination-in-chief. He
pointed out that in the cross-examination, PW-1 has tried
to improve upon his version by trying to depose
consistently with the version of PW-2. Inviting our
attention to the proceedings before the Trial Court, he
submitted that when the examination-in-chief of the PW-1
was recorded, the appellant-accused was not represented
by any advocate. Therefore, the cross-examination was
adjourned to enable the appellant to engage an advocate.
Criminal Appeal No. 771 of 2024 Page 4 of 37
An advocate was appointed to espouse his cause after the
examination-in-chief of PW-1 was recorded. The appellant
was not represented by any advocate at the time of the
framing of the charge.
6. Coming to the depositions of PW-2, the learned senior
counsel for the appellant urged that considering the
difference between the version of PW-1 in his examination-
in-chief and cross-examination, the possibility of PW-2
being tutored cannot be ruled out. He submitted that
evidence of PW-2 was recorded two and half years after the
incident, and on the date of the recording of evidence, his
age was ten years. Possibly, he was tutored. He pointed
out that the evidence of PW-2 was not of sterling quality
and, therefore, cannot be the sole basis for the conviction,
especially when evidence regarding recovery is doubtful.
7. The learned senior counsel appearing for the
appellant as amicus curiae pointed out that the alleged
recovery of the victim’s slippers and underwear, at the
instance of the appellant, is highly doubtful as the place
and time of recovery have not been mentioned in the
Criminal Appeal No. 771 of 2024 Page 5 of 37
recovery memo. The prosecution did not examine the two
witnesses to the recovery memo. He pointed out that the
prosecution made no attempt to prove that blood stains on
the undergarments of the appellant were that of the blood
of the victim. No analysis was made.
8. More importantly, he submitted that the
incriminating circumstances brought on record in the
evidence against the appellant were not put to him in his
examination under Section 313 of the CrPC. Therefore, the
appellant’s right of defence was seriously prejudiced. He
relied upon a decision of this Court in the case of Raj
Kumar v. State (NCT of Delhi)1.
9. Shri K. Parameshwar, the learned senior counsel
appearing for the State, supported the impugned
judgments. However, he has assisted us on the issue of
legal aid to the accused.
CONSIDERATION OF SUBMISSIONS
1 2023 SCC OnLine SC 609
Criminal Appeal No. 771 of 2024 Page 6 of 37
10. In the examination-in-chief, PW-1 stated that PW-2
witnessed the commission of rape and murder of the
victim. According to the witness, PW-2 told him that as the
door of the room was open while he was standing outside,
he saw the act of commission of rape and murder. He
deposed that after the PW-2 told him about the incident,
he rushed along with two or three other persons to the
spot. He found that the appellant was present there, and
he questioned the appellant. Thereafter, the appellant fled.
He tried to search for the victim. He found the dead body
of the victim under the haystack in the room. It is pertinent
to note that PW-2 had informed PW-1 that the appellant
was the offender. Though two to three persons
accompanied PW-1, he did not attempt to apprehend the
accused and take him to the police. The conduct of PW-1
of not apprehending the appellant, though he was present,
is unnatural.
11. Examination-in-chief of PW-1 was recorded by
learned Trial Judge on 11th May 2011. At the end of the
examination-in-chief, the learned Trial Judge recorded
Criminal Appeal No. 771 of 2024 Page 7 of 37
that the case was adjourned at the oral request of the
appellant to engage a counsel. Before the cross-
examination was recorded on 2nd July 2011, an advocate
was appointed to espouse the appellant’s cause. The cross-
examination of PW-1 was recorded on 2nd July 2011 and
24th September 2011. The witness reiterated that he had
narrated the facts stated to him by PW-2.
12. As far as PW-2 is concerned, he was 10 years old
when his deposition was recorded. Many preliminary
questions were put to the witness by the learned Trial
Judge. After satisfying himself that the witness was able to
understand the questions and give a reply to the same, an
oath was administered to him. His version in the
examination-in-chief is that the appellant gave drinking
water to him and the victim. After drinking the water, when
they tried to leave, the appellant caught the victim from
behind, took off her undergarments, and the victim started
screaming. He did not depose that he had seen the
commission of rape and murder by the appellant. To this
extent, the version of PW-2, as told to PW-1, is entirely
Criminal Appeal No. 771 of 2024 Page 8 of 37
different. PW-1 claims that PW-2 reported to him that he
had seen the appellant committing rape and murder from
outside the cabin. PW-8, the investigating officer, stated
that he had recorded the Statement of PW-2 on 18th June
2009. Thus, there was a delay of 21 days in recording his
statement, though the FIR recorded that this witness had
seen the appellant committing the crime. There is some
dispute about whether the witness’s statement recorded
under Section 161 of CrPC was produced with the charge
sheet. The learned senior counsel appointed as amicus
pointed out that it is not on the record of the Trial Court.
In the list of witnesses mentioned in the charge sheet, the
name of PW-2 has not been included. Therefore, for all the
reasons discussed above, the evidence of PW-2, the only
eyewitness, cannot be held to be of sterling quality. It is
unsafe to base conviction only on his testimony. Even
otherwise, taking his testimony as correct, the evidence of
the PW-2 can, at the highest, be the evidence of the last
seen together.
Criminal Appeal No. 771 of 2024 Page 9 of 37
13. Therefore, it is necessary to consider the other
circumstantial evidence. In this case, the recovery of the
victim’s slipper and underwear is alleged at the appellant’s
instance. We have perused the recovery memo signed by
the circle officer and two independent witnesses. The
prosecution did not examine the two independent
witnesses. Though the date of recovery is mentioned in the
memo, the time and, most importantly, the place of
recovery are not mentioned. Therefore, it cannot be said
that pursuant to the statement made by the appellant, in
accordance with Section 27 of the Indian Evidence Act,
1972 (for short, ‘the Evidence Act’), the articles were found
at the place stated by the appellant. Hence, the
prosecution failed to prove that the recovery was from a
particular place. Thus, evidence of recovery will have to be
kept out of consideration. The recovery of the articles at
the instance of the appellant is a very important
circumstance in the chain of circumstances. It is not
proved. Hence, the appellant’s guilt beyond reasonable
doubt has not been established.
Criminal Appeal No. 771 of 2024 Page 10 of 37
EXAMINATION OF THE APPELLANT UNDER SECTION
313 OF CR.P.C
14. Now, we come to the appellant’s statement, recorded
per Section 313 of the CrPC. Only three questions were put
to the appellant. In the first question, the names of ten
prosecution witnesses were incorporated, and the only
question asked to the appellant was what he had to say
about the testimony of ten prosecution witnesses. In the
second question, all the documents produced by the
prosecution were referred, and a question was asked, what
the appellant has to say about the documents. In the third
question, it was put to the appellant that knowing the fact
that the victim belongs to a scheduled caste, he caused her
death after raping her and concealed her dead body, and
he was asked for his reaction to the same. What PW-1 and
PW-2 deposed against the appellant was not put to the
appellant. The contents of the incriminating documents
were not put to the appellant.
15. In the case of Raj Kumar1, in paragraph 17, this
Court has summarised the law laid down by this Court
Criminal Appeal No. 771 of 2024 Page 11 of 37
from time to time on Section 313 of the CrPC. Paragraph
17 reads thus:
“17. The law consistently laid down by
this Court can be summarized as under:
(i) It is the duty of the Trial Court
to put each material circumstance
appearing in the evidence against the
accused specifically, distinctively
and separately. The material
circumstance means the
circumstance or the material on the
basis of which the prosecution is
seeking his conviction;
(ii) The object of examination of the
accused under Section 313 is to enable
the accused to explain any
circumstance appearing against him in
the evidence;
(iii) The Court must ordinarily
eschew material circumstances not
put to the accused from
consideration while dealing with the
case of the particular accused;
(iv) The failure to put material
circumstances to the accused amounts
to a serious irregularity. It will vitiate
the trial if it is shown to have prejudiced
the accused;
(v) If any irregularity in putting the
material circumstance to the
accused does not result in failure of
justice, it becomes a curable defect.
Criminal Appeal No. 771 of 2024 Page 12 of 37
However, while deciding whether the
defect can be cured, one of the
considerations will be the passage of
time from the date of the incident;
(vi) In case such irregularity is
curable, even the appellate court can
question the accused on the material
circumstance which is not put to him;
and
(vii) In a given case, the case can be
remanded to the Trial Court from the
stage of recording the supplementary
statement of the concerned accused
under Section 313 of CrPC.
(viii) While deciding the question
whether prejudice has been caused to
the accused because of the omission,
the delay in raising the contention is
only one of the several factors to be
considered.”
This Court based its decision on several decisions,
including the decision in the case of Shivaji Sahabrao
Bobade v. State of Maharashtra2. This Court relied
upon what was held in paragraph 16 of the said case.
Paragraph 16 of the said case reads thus:
“16. ……………. It is trite law,
nevertheless fundamental, that the
2 (1973) 2 SCC 793
Criminal Appeal No. 771 of 2024 Page 13 of 37
prisoner’s attention should be drawn to
every inculpatory material so as to
enable him to explain it. This is the
basic fairness of a criminal trial and
failures in this area may gravely imperil
the validity of the trial itself, if
consequential miscarriage of justice
has flowed. However, where such an
omission has occurred it does not ipso
facto vitiate the proceedings and
prejudice occasioned by such defect
must be established by the accused. In
the event of evidentiary material not
being put to the accused, the court
must ordinarily eschew such material
from consideration. It is also open to
the appellate court to call upon the
counsel for the accused to show what
explanation the accused has as regards
the circumstances established against
him but not put to him and if the
accused is unable to offer the appellate
court any plausible or reasonable
explanation of such circumstances, the
Court may assume that no acceptable
answer exists and that even if the
accused had been questioned at the
proper time in the trial court he would
not have been able to furnish any good
ground to get out of the circumstances
on which the trial court had relied for
its conviction. In such a case, the Court
proceeds on the footing that though a
grave irregularity has occurred as
Criminal Appeal No. 771 of 2024 Page 14 of 37
regards compliance with Section 342,
CrPC, the omission has not been shown
to have caused prejudice to the
accused. In the present case, however,
the High Court, though not the trial court
has relied upon the presence of blood on
the pants of the blood group of the
deceased. We have not been shown what
explanation the accused could have
offered to this chemical finding
particularly when we remember that his
answer to the question regarding the
human blood on the blade of the knife was
“I do not know”. Counsel for the
appellants could not make out any
intelligent explanation and the “blood”
testimony takes the crime closer to the
accused. However, we are not inclined to
rely over much on this evidentiary
circumstance, although we should
emphasise how this inadvertance of the
trial court had led to a relevant fact being
argued as unavailable to the prosecution.
Great care is expected of Sessions Judges
who try grave cases to collect every
incriminating circumstance and put it to
the accused even though at the end of a
long trial the Judge may be a little fagged
out.”
(emphasis added)
Criminal Appeal No. 771 of 2024 Page 15 of 37
In a given case, the witnesses may have deposed in a
language not known to the accused. In such a case, if the
material circumstances appearing in evidence are not put
to the accused and explained to the accused, in a language
understood by him, it will cause prejudice to the accused.
16. In the present case, there is no doubt that material
circumstances appearing in evidence against the appellant
have not been put to him. The version of the main
prosecution witnesses PWs-1 and 2 was not put to him.
The stage of the accused leading defence evidence arises
only after his statement is recorded under Section 313 of
the CrPC. Unless all material circumstances appearing
against him in evidence are put to the accused, he cannot
decide whether he wants to lead any defence evidence. In
this case, even the date and place of the crime allegedly
committed by the appellant were not put to the appellant.
What was reportedly seen by PW-2 was not put to the
appellant in his examination. Therefore, the appellant was
prejudiced. Even assuming that failure to put material to
the appellant in his examination is an irregularity, the
Criminal Appeal No. 771 of 2024 Page 16 of 37
question is whether it can be cured by remanding the case
to the Trial Court.
17. The date of occurrence is of 27th May 2009. Thus, the
incident is fifteen and a half years old. After such a long
gap of fifteen and half years, it will be unjust if the
appellant is now told to explain the circumstances and
material specifically appearing against him in the
evidence. Moreover, the appellant had been incarcerated
for about twelve years and nine months before he was
released on bail. Therefore, considering the long passage
of time, there is no option but to hold that the defect
cannot be cured at this stage. Even assuming that the
evidence of PW-2 can be believed, the appellant is entitled
to acquittal on the ground of the failure to put
incriminating material to him in his examination under
Section 313 of the CrPC. We are surprised to note that
both the Trial Court and High Court have overlooked non-
compliance with the requirements of Section 313 of the
CrPC. Shockingly, the Trial Court imposed the death
penalty in a case which ought to have resulted in acquittal.
Criminal Appeal No. 771 of 2024 Page 17 of 37
Imposing capital punishment in such a case shocks the
conscience of this Court.
ROLE OF THE PUBLIC PROSECUTOR
18. Under sub-Section (5) of Section 313 of CrPC (sub-
Section (5) of Section 351 of Bharatiya Nagarik Suraksha
Sanhita, 2023), the Court is entitled to secure the
assistance of the public prosecutor and the advocate
representing the accused to prepare the questions to be
put in the examination under Section 313. A Public
Prosecutor has to play an active role in ensuring that every
trial is conducted in a fair manner and in accordance with
the law. Hence, it is the Public Prosecutor’s duty to invite
the Court’s attention to the requirement of putting all
incriminating material to the accused. Therefore, the
Public Prosecutor is under an obligation to remain present
when the examination of the accused is made to assist the
Court.
FAILURE TO PROVIDE LEGAL AID TO THE ACCUSED
19. After having perused the record of the case, we found
a very disturbing feature. It is about the failure of the State
Criminal Appeal No. 771 of 2024 Page 18 of 37
to provide timely legal aid to the appellant. The other issue
is about the quality of legal aid. Apart from provisions of
Article 21 and Article 39A of the Constitution of India, the
law on the issue of the right to legal aid has been evolved
by this Court through its landmark decisions. This Court’s
first well-known decision is in the case of Hussainara
Khatoon (IV) v. Home Secy., State of Bihar3. In
Paragraph 7, this Court held thus:
“7. We may also refer to Article 39-A the
fundamental constitutional directive
which reads as follows:
“39-A. Equal justice and free legal aid.—
The State shall secure that the
operation of the legal system promotes
justice, on a basis of equal opportunity,
and shall, in particular, provide free
legal aid, by suitable legislation or
schemes or in any other way, to ensure
that opportunities for securing justice
are not denied to any citizen by reason
of economic or other disabilities.”
(emphasis added)
This article also emphasises that free legal
service is an unalienable element of
“reasonable, fair and just” procedure for
without it a person suffering from3
(1980) 1 SCC 98Criminal Appeal No. 771 of 2024 Page 19 of 37
economic or other disabilities would be
deprived of the opportunity for securing
justice. The right to free legal services
is, therefore, clearly an essential
ingredient of “reasonable, fair and
just”, procedure for a person accused of
an offence and it must be held implicit
in the guarantee of Article 21. This is a
constitutional right of every accused
person who is unable to engage a lawyer
and secure legal services on account of
reasons such as poverty, indigence or
incommunicado situation and the State
is under a mandate to provide a lawyer
to an accused person if the
circumstances of the case and the
needs of justice so require, provided of
course the accused person does not
object to the provision of such lawyer.
We would, therefore, direct that on the
next remand dates, when the undertrial
prisoners, charged with bailable offences,
are produced before the Magistrates, the
State Government should provide them a
lawyer at its own cost for the purpose of
making an application for bail, provided
that no objection is raised to such lawyer
on behalf of such undertrial prisoners and
if any application for bail is made, the
Magistrates should dispose of the same in
accordance with the broad outlines set out
by us in our judgment dated February 12,
1979. The State Government will report to
the High Court of Patna its compliance
Criminal Appeal No. 771 of 2024 Page 20 of 37
with this direction within a period of six
weeks from today.”
(emphasis added)
The second decision is in the case of M.H. Hoskot v. State
of Maharashtra4. In paragraphs 14 and 25 of the
decision, this Court held thus:
“14. The other ingredient of fair
procedure to a prisoner, who has to
seek his liberation through the court
process is lawyer’s services. Judicial
justice, with procedural intricacies,
legal submissions and critical
examination of evidence, leans upon
professional expertise; and a failure of
equal justice under the law is on the
cards where such supportive skill is
absent for one side. Our judicature,
moulded by Anglo-American models and
our judicial process, engineered by
kindred legal technology, compel the
collaboration of lawyer-power for steering
the wheels of equal justice under the law.
Free legal services to the needy is part of
the English criminal justice system. And
the American jurist, Prof. Vance of Yale,
sounded sense for India too when he said:
[ Justice and Reform, Earl Johnson, Jr. p.
11]4
(1978) 3 SCC 544Criminal Appeal No. 771 of 2024 Page 21 of 37
“What does it profit a poor and ignorant
man that he is equal to his strong
antagonist before the law if there is no one
to inform him what the law is? Or that the
courts are open to him on the same terms
as to all other persons when he has not
the wherewithal to pay the admission
fee?” ”
(emphasis added)“25. If a prisoner sentenced to
imprisonment, is virtually unable to
exercise his constitutional and statutory
right of appeal, inclusive of special leave
to appeal, for want of legal assistance,
there is implicit in the Court under Article
142, read with Articles 21 and 39-A of the
Constitution, power to assign counsel for
such imprisoned individual “for doing
complete justice”. This is a necessary
incident of the right of appeal conferred by
the Code and allowed by Article 136 of the
Constitution. The inference is inevitable
that this is a State’s duty and not
Government’s charity. Equally
affirmative is the implication that
while legal services must be free to the
beneficiary, the lawyer himself has to
be reasonably remunerated for his
services. Surely, the profession has a
public commitment to the people but mere
philanthropy of its members yields short
mileage in the long run. Their services,Criminal Appeal No. 771 of 2024 Page 22 of 37
especially when they are on behalf of the
State must be paid for. Naturally, the
State concerned must pay a reasonable
sum that the court may fix when
assigning counsel to the prisoner. Of
course, the court may judge the situation
and consider from all angles whether it is
necessary for the ends of justice to make
available legal aid in the particular case.
In every country where free legal services
are given it is not done in all cases but
only where public justice suffers
otherwise. That discretion resides in the
court.”
(emphasis added)
This issue was again dealt with by a Bench of three Judges
in the case of Anokhilal v. State of M.P.5. In this decision,
this Court revisited the law on this aspect. In paragraph
11, this Court relied upon the decision in the case of
Hussainara Khatoon (IV)3. In paragraph 20, this Court
summarised the principles laid down from time to time.
Paragraph 20 reads thus:
“20. The following principles, therefore,
emerge from the decisions referred to
hereinabove:
5
(2019) 20 SCC 196
Criminal Appeal No. 771 of 2024 Page 23 of 37
20.1. Article 39-A inserted by the 42nd
Amendment to the Constitution, effected
in the year 1977, provides for free legal aid
to ensure that opportunities for securing
justice are not denied to any citizen by
reason of economic or other disabilities.
The statutory regime put in place
including the enactment of the Legal
Services Authorities Act, 1987 is designed
to achieve the mandate of Article 39-A.
20.2. It has been well accepted that
right to free legal services is an
essential ingredient of “reasonable, fair
and just” procedure for a person
accused of an offence and it must be
held implicit in the right guaranteed by
Article 21. The extract from the
decision of this Court in Best Bakery
case [Zahira Habibulla H.
Sheikh v. State of Gujarat, (2004) 4
SCC 158 : 2004 SCC (Cri) 999] (as
quoted in the decision in Mohd.
Hussain [Mohd. Hussain v. State (NCT
of Delhi), (2012) 9 SCC 408 : (2012) 3
SCC (Cri) 1139] ) emphasises that the
object of criminal trial is to search for
the truth and the trial is not a bout over
technicalities and must be conducted
in such manner as will protect the
innocent and punish the guilty.
20.3. Even before insertion of Article 39-
A in the Constitution, the decision of this
Court in Bashira [Bashira v. State of U.P.,
(1969) 1 SCR 32 : AIR 1968 SC 1313 :
Criminal Appeal No. 771 of 2024 Page 24 of 37
1968 Cri LJ 1495] put the matter beyond
any doubt and held that the time granted
to the Amicus Curiae in that matter to
prepare for the defence was completely
insufficient and that the award of
sentence of death resulted in deprivation
of the life of the accused and was in
breach of the procedure established by
law.
20.4. The portion quoted
in Bashira [Bashira v. State of U.P., (1969)
1 SCR 32 : AIR 1968 SC 1313 : 1968 Cri
LJ 1495] from the judgment of the Andhra
Pradesh High Court authored [Alla
Nageswara Rao, In re, 1954 SCC OnLine
AP 115 : AIR 1957 AP 505] by Subba Rao,
J., the then Chief Justice of the High
Court, stated with clarity that mere formal
compliance of the rule under which
sufficient time had to be given to the
counsel to prepare for the defence would
not carry out the object underlying the
rule. It was further stated that the
opportunity must be real where the
counsel is given sufficient and adequate
time to prepare.
20.5. In Bashira [Bashira v. State of U.P.,
(1969) 1 SCR 32 : AIR 1968 SC 1313 :
1968 Cri LJ 1495] as well as
in Ambadas [Ambadas Laxman
Shinde v. State of Maharashtra, (2018) 18
SCC 788 : (2019) 3 SCC (Cri) 452 : (2018)
14 Scale 730] , making substantial
progress in the matter on the very dayCriminal Appeal No. 771 of 2024 Page 25 of 37
after a counsel was engaged as Amicus
Curiae, was not accepted by this Court as
compliance with “sufficient opportunity”
to the counsel.”
(emphasis added)In paragraph 31, norms were laid down by this Court,
which read thus:
“31. Before we part, we must lay down
certain norms so that the infirmities that
we have noticed in the present matter are
not repeated:
31.1. In all cases where there is a
possibility of life sentence or death
sentence, learned advocates who have
put in minimum of 10 years’ practice at
the Bar alone be considered to be
appointed as Amicus Curiae or through
legal services to represent an accused.
31.2. In all matters dealt with by the High
Court concerning confirmation of death
sentence, Senior Advocates of the Court
must first be considered to be appointed
as Amicus Curiae.
31.3. Whenever any learned counsel is
appointed as Amicus Curiae, some
reasonable time may be provided to
enable the counsel to prepare the matter.
There cannot be any hard-and-fast rule in
that behalf. However, a minimum of seven
Criminal Appeal No. 771 of 2024 Page 26 of 37
days’ time may normally be considered to
be appropriate and adequate.
31.4. Any learned counsel, who is
appointed as Amicus Curiae on behalf of
the accused must normally be granted to
have meetings and discussion with the
accused concerned. Such interactions
may prove to be helpful as was noticed
in Imtiyaz Ramzan Khan [Imtiyaz Ramzan
Khan v. State of Maharashtra, (2018) 9
SCC 160 : (2018) 3 SCC (Cri) 721] .”
(emphasis added)
20. Thus, the right to get legal aid is a fundamental right
of the accused, guaranteed by Article 21 of the
Constitution. Even under Section 303 of the CrPC, every
accused has a right to be defended by a pleader of his
choice. Section 304 provides for the grant of legal aid to an
accused free of costs. When an accused has either not
engaged an advocate or does not have sufficient means to
engage an advocate, it is the trial court’s duty to inform
the accused of his right to obtain free legal aid, which is a
right covered by Article 21 of the Constitution of India.
Sub-Section (1) of Section 304 reads thus:
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“304. Legal aid to accused at State
expense in certain cases.—(1) Where, in a
trial before the Court of Session, the
accused is not represented by a
pleader, and where it appears to the
Court that the accused has not
sufficient means to engage a pleader,
the Court shall assign a pleader for his
defence at the expense of the State.
(2) ………………………………………………..
(3)
………………………………..…………………”
(emphasis added)
Sections 340 and 341 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short, ‘BNSS’) are the Sections which
correspond to Sections 303 and 304 of the CrPC. Thus,
under Section 304 of the CrPC, it is the duty of the Court
to ensure that a legal aid lawyer is appointed to espouse
the cause of the accused.
21. Now, we come back to the facts of the case. From the
proceedings of the Trial Court, it appears that when the
charges were framed on 8th September 2010, and when
the plea was recorded, the appellant was not represented
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by any advocate. Proceedings of 26th February 2011
record that though three witnesses of the prosecution were
present, the appellant was not represented by any
advocate. Therefore, assurance of the appellant has been
recorded that he would call his counsel on the next date.
On 11th May 2011, the examination-in-chief of PW-1 was
recorded. In the proceedings, the court recorded that the
appellant had not engaged any advocate on that day, and
he was not desirous of taking legal aid. However, on 8th
June 2011, an advocate was appointed to espouse his
cause. We find that on 20th July 2012, 4th October 2012,
1st November 2012, 7th November 2012, 9th November
2012 and 23rd November 2012, the advocate appointed as
amicus curiae for the appellant was absent. Applications
were required to be made by him to recall certain witnesses
as the cross-examination was closed due to his absence.
Thus, the evidence of more than one prosecution witness
was recorded in the absence of the legal aid advocate. On
7th November 2012, another advocate was appointed to
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espouse the appellant’s cause. We find that a third
advocate conducted the cross-examination of PW-8.
22. At the stage of framing the charge, the appellant was
not represented by an advocate. From 8th June 2011, the
appellant never declined legal aid. We are surprised to note
that the examination-in-chief of PW-1 was allowed to be
recorded without giving legal aid counsel to the appellant,
who was not represented by an advocate. If the
examination-in-chief of a prosecution witness is recorded
in the absence of the advocate for the accused, a very
valuable right of objecting to the questions asked in
examination-in-chief is taken away. The accused is also
deprived of the right to object to leading questions. It will
not be appropriate to comment on the capabilities of the
two legal aid lawyers appointed in this case as they are not
parties before us. But suffice it to say that the cross-
examination of the witnesses was not up to the mark.
Some of the crucial questions that normally would have
been put in the cross-examination have not been asked.
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CONCLUDING PART
23. Our conclusions and directions regarding the role of
the Public Prosecutor and appointment of legal aid lawyers
are as follows:
a. It is the duty of the Court to ensure that proper
legal aid is provided to an accused;
b. When an accused is not represented by an
advocate, it is the duty of every Public
Prosecutor to point out to the Court the
requirement of providing him free legal aid.
The reason is that it is the duty of the Public
Prosecutor to ensure that the trial is conducted
fairly and lawfully;
c. Even if the Court is inclined to frame charges
or record examination-in-chief of the
prosecution witnesses in a case where the
accused has not engaged any advocate, it is
incumbent upon the Public Prosecutor to
request the Court not to proceed without
offering legal aid to the accused;
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d. It is the duty of the Public Prosecutor to assistthe Trial Court in recording the statement of
the accused under Section 313 of the CrPC. If
the Court omits to put any material
circumstance brought on record against the
accused, the Public Prosecutor must bring it to
the notice of the Court while the examination
of the accused is being recorded. He must
assist the Court in framing the questions to be
put to the accused. As it is the duty of the
Public Prosecutor to ensure that those who are
guilty of the commission of offence must be
punished, it is also his duty to ensure that
there are no infirmities in the conduct of the
trial which will cause prejudice to the accused;
e. An accused who is not represented by an
advocate is entitled to free legal aid at all
material stages starting from remand. Every
accused has the right to get legal aid, even to
file bail petitions;
Criminal Appeal No. 771 of 2024 Page 32 of 37
f. At all material stages, including the stage offraming the charge, recording the evidence,
etc., it is the duty of the Court to make the
accused aware of his right to get free legal aid.
If the accused expresses that he needs legal
aid, the Trial Court must ensure that a legal
aid advocate is appointed to represent the
accused;
g. As held in the case of Anokhilal5, in all the
cases where there is a possibility of a life
sentence or death sentence, only those learned
advocates who have put in a minimum of ten
years of practice on the criminal side should be
considered to be appointed as amicus curiae or
as a legal aid advocate. Even in the cases not
covered by the categories mentioned above, the
accused is entitled to a legal aid advocate who
has good knowledge of the law and has an
experience of conducting trials on the criminal
side. It would be ideal if the Legal Services
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Authorities at all levels give proper training tothe newly appointed legal aid advocates not
only by conducting lectures but also by
allowing the newly appointed legal aid
advocates to work with senior members of the
Bar in a requisite number of trials;
h. The State Legal Services Authorities shall issue
directions to the Legal Services Authorities at
all levels to monitor the work of the legal aid
advocate and shall ensure that the legal aid
advocates attend the court regularly and
punctually when the cases entrusted to them
are fixed;
i. It is necessary to ensure that the same legal aid
advocate is continued throughout the trial
unless there are compelling reasons to do so or
unless the accused appoints an advocate of his
choice;
j. In the cases where the offences are of a very
serious nature and complicated legal and
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factual issues are involved, the Court, insteadof appointing an empanelled legal aid advocate,
may appoint a senior member of the Bar who
has a vast experience of conducting trials to
espouse the cause of the accused so that the
accused gets best possible legal assistance;
k. The right of the accused to defend himself in a
criminal trial is guaranteed by Article 21 of the
Constitution of India. He is entitled to a fair
trial. But if effective legal aid is not made
available to an accused who is unable to
engage an advocate, it will amount to
infringement of his fundamental rights
guaranteed by Article 21;
l. If legal aid is provided only for the sake of
providing it, it will serve no purpose. Legal aid
must be effective. Advocates appointed to
espouse the cause of the accused must have
good knowledge of criminal laws, law of
evidence and procedural laws apart from other
Criminal Appeal No. 771 of 2024 Page 35 of 37
important statutes. As there is a constitutionalright to legal aid, that right will be effective only
if the legal aid provided is of a good quality. If
the legal aid advocate provided to an accused
is not competent enough to conduct the trial
efficiently, the rights of the accused will be
violated.
24. For the reasons recorded earlier, the appeal is
allowed. The impugned judgments and orders are set
aside, and the appellant is acquitted of offences alleged
against him. The bail bonds of the appellant stand
cancelled.
25. A copy of this judgment shall be forwarded to all State
Legal Services Authorities to enable the authorities to take
necessary measures.
26. We record our appreciation for the able assistance
rendered to the Court by the learned senior counsel Shri
M.Shoeb Alam, appointed to espouse the cause of the
appellant. We must also record that the learned senior
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counsel, Shri K.Parameshwar, appearing for the
respondent, has fairly assisted the Court.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ahsanuddin Amanullah)
……………………..J.
(Augustine George Masih)
New Delhi;
December 02, 2024
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