iminal Appeal No 25 of 1968
Appeal by special leave from the judgment and order dated July 20 1967 of the Allahabad High Court in Cr A No 469 of 1967 and Ref
No 21 of 1967
K K Luthra for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by Bhargava J
The appellant Bashira was convicted by the Court of Session for having committed the murder of his own wife Saira alias Mahobawali with an axe inside his house at about 11 am on 22nd August 1966
The First Information Report of this incident was lodged on the same day at 5 15 pm by Naziran the mother of the appellant who went to the Police Station accompanied by the Chaukidar
The investigation of the case began on 23rd August 1966
The appellant surrendered himself in Court on 24th August 1966
On 15th September 1966 the Challan was presented in the Court of the Magistrate who recorded some evidence proceeded in accordance with section 207A of the Code of Criminal Procedure and then on 28th November 1966 committed the appellant for trial to the Court of Session for the offence of committing the murder of his wife punishable under section 302 of the Indian Penal Code
The Temporary Civil  Sessions Judge of Hamirpur fixed 28th February 1967 as the date for starting the actual trial of the case
On that day before beginning the trial he appointed one Sri Sirish Chandra Advocate as amicus curiae counsel to represent the appellant
He amended the charge which was read out to the appellant who pleaded not guilty
Thereafter on that very day evidence of two principal prosecution witnesses was recorded
The first witness was Smt
Naziran the mother of the appellant who had lodged the FIR and the second witness was Khan Bahadur son of the appellant who was the sole eye witness of the incident of murder
The remaining evidence was recorded on 1st March 1967 on which date the appellant was also examined under section 342 Cr
The appellant stated that be would not produce any defence
A joint application of coun sel for parties was presented on that day requesting the court to make a local inspection and 12th March 1967 was fixed for local inspection
The Temporary Sessions Judge in that order 34 directed that a suitable conveyance should be arranged for him as he had no conveyance of his own
On 8th March 1967 the Public Prosecutor gave it in writing that no conveyance could be arranged and therefore prayed that the local inspection may be cancelled
The Judge cancelled the direction for local inspection and then fixed 10th March 1967 for arguments
On that day Sri Shukla counsel representing the appellant presented an application praying for the recall of P W 2 Khan Bahadur for further cross examination on the ground that there had been an omission in drawing his attention to a contradiction with his statement recorded in the Court of the Committing Magistrate
He added that there were many other things to be seen and made this request in the interest of justice
The Judge held that the ground for recall that the witness could not be cross examined effectively would hardly justify the recall of the witness for further crossexamination
He further expressed his opinion that even if the statement attributed to the witness as having been made by him in the Court of the Committing Magistrate is brought on the record it would not help the appellant to any appreciable degree in his defence
On these grounds the application was rejected
Arguments were then heard on the same day and judgment was delivered on 13th March 1967 convicting the appellant for the offence of murder under section 302 IPc and sentencing him to death
The appellant appealed in the High Court of Allahabad and the Tempy
Sessions Judge also made a reference for confirmation of the sentence of death
The High Court dismissed the appeal accepted the reference and confirmed the sentence of death
The appellant has now come up to this Court against that judgment of the High Court in appeal by special leave
In this case the principal ground urged on behalf of the appellant raises an important question of law
Learned counsel appearing for the appellant emphasised the circumstance that the amicus curiae counsel to represent the appellant was appointed by the Sessions Judge on the 28th February 1967 just when the trial was about to begin nd this belated appointment of the counsel deprived the appellant of adequate legal aid so that he was unable to defend himself properly
It was urged that the procedure adopted by the Court was not in accordance with law so that if the sentence of death is carried out the appellant will be deprived of his life in breach of his fundamental right under Article 21 of the Constitution which lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law
The main procedure for trial of a criminal case is laid down in the Code of Criminal Procedure and in this case there is no grievance that the procedure laid down therein was not followed by the Court of Session
The grievance however is that there 35 are provisions supplementing the procedure laid down by the Criminal Procedure Code and the course adopted by the Court of Session was in breach of these supplementary rules
Reference was made to Rule 37 in Chapter V of the General Rules Criminals 1957 hereinafter referred to as the Rules promulgated by the High Court of Allahabad in exercise of its powers under Article 227 of the Constitution and section 554 of the Code of Criminal Procedure
These Rules were published under Notification No 241AVlll a 1 dated September 4 1956 in the Supplement to the Government Gazette of Uttar Pradesh dated 3rd November 1956
The notification clearly mentions the powers under which the High Court promulgated the Rules and also contains a clear recitation that the Rules were being published with the previous approval of the Government of Uttar Pradesh
We have mentioned these details because at one stage it was urged by learned counsel appearing for the respondent State Government that R 37 of the Rules had no statutory force at all
The notification in the Gazette makes it perfectly clear that these Rules were all framed by the High Court in exercise of the powers conferred on it by the Constitution or by the Code of Criminal Procedure
The Rules are therefore clearly statutory Rules andas suchthey form a part of the procedure for trial of criminate cases by courts subordinate to the High Court of Allahabad in addition to the procedure laid down by the Code of Criminal Procedure
Rule 37 of the Rules is as follows In any
case which comes before a Court of Session the court may engage counsel to defend the ac cused person if a the charge against him is such that a capital sentence is possible and b it appears that he has not engaged counsel and is not possessed of sufficient means to do so
To enable the Sessions Court to arrive at a decision as regards the second condition in the preceding paragraph the committing Magistrate shall in such cases make enquiries from the accused at the time of commitment and after making such other enquiries as may be necessary report within a month of the commitment order to the court to which the commitment is made whether the accused is possessed of sufficient means to engage counsel
Each case must be decided on its merits and no hard and fast rule as to sufficiency of means should be applied
The Sessions Court in making its decision shall not be bound by the report of the committing magistrate
36 lm15 Counsel appointed under this rule shall be furnished with the necessary papers free of cost and allowed sufficient time to prepare for the defence
 On the basis of the language used in this Rule learned counsel for the State urged that this Rule should not be held to be mandatory but only a Rule enabling a Court to engage a counsel to defend a person accused of an offence punishable with capital sentence
It is true that the word used is may in this Rule but in our opinion the purpose of the Rule will be completely defeated if we were to accept this submission
It appears that the word may was used only because there are certain conditions laid down on the existence of which depends the appointment of the amicus curiae counsel to represent the accused
The principal pre condition is that the accused has himself not engaged a counsel and is not possessed of sufficient means to do so
The Rule adds that no hard and fast rule as to the sufficiency of means should be applied when the court has to decide whether an amicus curiae counsel should be provided at the cost of the Government and each case must be decided on its merits
It was because of these conditions that the word may was used in the Rule but the intention of the Rule is perfectly clear that no accused person should remain totally unrepresented by a lawyer if he is being tried on a charge for which a capital sentence can be awarded
Considering the purpose of this Rule we hold that the word may in this Rule must be interpreted as laying down a mandatory direction to the Court to engage a counsel if the conditions laid down in the Rule are otherwise satisfied
In this connection learned counsel for the State drew our attention to two decisions of this Court reported in Janardan Reddy and Others vs The State of Hyderabad and Others and connected Appeals1 and Tara Singh vs The State2
In the first of these two cases this Court was considering the effect of section 271 of the Hyderabad Criminal Procedure Code read along with the Rules and Circular Orders issued by the Hyderabad High Court and in that connection held that though section 271 of the Hyderabad Criminal Procedure Code corresponds to section 340 of the Indian Criminal Procedure Code these provisions did not Jay down as a rule of law that in every capital sentence case where the accused is unrepresented the trial should be held to be vitiated
In the second case this Court examined the scope of the right conferred on an accused by section 3401 of the Code of Criminal Procedure and held that it does not extend to a right in an accused person to be provided with a lawyer by the State or by the Police or by the Magistrate
The Privilege conferred by this provision only gave a right to an accused to be represented by a counsel if he wanted to engage one himself or to 1  2  37 get his relations to engage one for him
The only duty cast on the Magistrate is to afford him the necessary opportunity for this purpose
It appears to us that neither of these two cases is applicable to the case before us because in those cases no question arose of taking into account a provision laying down procedure for trial of cases such as is contained in r 37 of the Rules
These cases no doubt show that section 340 Cr
PC by itself does not cast any duty on a court to provide a counsel at State expense even when the offence triable is punishable with death but that is imaterial because the right on which the appellant is basing his claim is sought to be justified under r 37 of the Rules
Learned counsel for the State in view of these two decisions urged before us that we should hold that r 37 of the Rules was void as contravening the principle laid down by section 340 Cr PC explained in the two cases referred to above
We are unable to appreciate this argument
Section 340 Cr
PC does not prohibit the appointment of a counsel by the Court at State expense though it does not prescribe such an appointment as a mandatory direction to be carried out by the Court
Rule 37 of the Rules only supplements the provision contained in section 340 Cr PC and is therefore in no way in conflict with section 340 Cr PC and it cannot be held that it is void on any such ground
We have already quoted above r 37 of the Rules in full
The grievance on behalf of the appellant is not that no counsel at all was engaged to represent him in the Court of Session but non compliance with the Rule is urged on the ground than there was breach of the last clause of that Rule That clause requires that the counsel appointed under the Rules shall be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence
In this case the facts mentioned by us earlier clearly show that Sri Shukla was appointed counsel for the appellant on 28th February 1967 which was the date fixed for starting the trial and the trial was in fact started after his appointment on that very day
Thus sufficient time was not allowed to him to prepare for the defence of the appellant
At one stage information was attempted to be given to this Court on behalf of the State Government on the basis of entries in the register maintained for appointment of amicus curiae counsel that in fact Sri Shukla had been appointed to represent the appellant on 18th February 1967
That register was sent for by us and it appears that this position was taken on behalf of the State Government because at one place in that register the date showing appointment of Sri Shukla as counsel for the appellant was so entered that it could be read as 18th February 1967 as well as 28th February 1967
There were however other entries in the register which clarified the position and indicated that even that date must be read as 28th February 1967 and learned coun 38 sel for the State conceded that the appointment of the amicus curiae counsel was in fact made on 28th February 1967
There is nothing on the record to show that after his appointment as counsel for the appellant Sri Shukla was given sufficient time to prepare the defence
The order sheet maintained by the Judge seems to indicate that as soon as the counsel was appointed the charge was read out to the accused and after his plea had been recorded examination of witnesses began
The counsel of course did his best to cross examine the witnesses to the extent it was possible for him to do in the very short time available to him
It is true that the record also does not contain any note that the counsel asked for more time to prepare the defence but that in our opinion is immaterial
The Rule casts a duty on the court itself to grant sufficient time to the counsel for this purpose and the record should show that the Rule was complied with by granting him time which the court considered sufficient in the particular circumstances of the case
In this case the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that in fact if any time at all was granted it was nominal
In these circumstances it must be held that there was no compliance with the requirements of this Rule
In this connection we may refer to the decisions of two of the High Courts where a similar situation arose
In Re Alla Nageswara Rao Petitioner1 reference was made to Rule 228 of the Madras Criminal Rules of Practice which
provided for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could be passed
It was held by Subba Rao Chief Justice as he then was speaking for the Bench that   a mere formal compliance with this Rule will not carry out the object underlying the rule
A sufficient time should be given to the advocate engaged on behalf of the accused to prepare his case and conduct it on behalf of his client
We are satisfied that the time given was insufficient and in the circumstances no real opportunity was given to the accused to defend himself
 This view was expressed on the basis of the fact found that the advocate had been engaged for the accused two hours prior to the trial
In Mathai Thommen vs State2 the Kerala High Court was dealing with a Sessions trial in which the counsel was engaged to defend the accused on 2nd August 1958 when the trig was posted to begin on 4th August 1958 showing that 1 AIR 1957 AP 505
2 AIR 1959 Kerala 241
39 barely more than a day was allowed to the counsel to get prepared and obtain instructions from the accused
Commenting on the procedure adopted by the Sessions Court the High Court finally expressed its opinion by saying  Practices like this would reduce to a farce the engagement of counsel under rule 21 of the Criminal Rules of Practice which has been made fOr the purpose of effectively carrying out the duty cast on courts of law to see that no one is deprived of life and liberty without a fair and reasonable opportunity being afforded to hm to prove his innocence
We consider that in cases like this counsel should be engaged at least some 10 to 15 days before the trial and should also be furnished with copies of the records
 In our opinion no hard and fast rule can be laid down as to the time which must elapse between the appointment of the counsel and the beginning of the trial but on tile circumstances of each case the Court of Session must ensure that the time granted to the counsel is sufficient to prepare for the defence
In the present case when the counsel was appointed just before the trial started it is clear that there was failure to comply with the requirements of the rule of procedure in this behalf
Learned counsel for the State urged before us that we should not hold that the award of the sentence of death to the appellant in this case is in breach of the fundamental right conferred by article 21 of the Constitution because he submitted r 37 of the Rules was not enacted by any legislature and consequently it should not be held to be a part of the procedure established by law
In this connection he relied on the view expressed by Kania CJ in A K Gopalan vs The State of Madras1 where lie held No extrinsic aid is needed to interpret the words of article 21 which in my opinion are not ambiguous
Normally read and without thinking of other Constitutionsthe expression procedure prescribed by law must mean procedure prescribed by the law of the State
 This Interpretation was given in order to exclude from the scope of article 21 rules of natural justice which are not incorporated in any law
Proceeding further he dealt with the language of Art31 where the expression used is by authority of law and held It is obvious that in that clause law  must mean enacted law
1  111 12
40 We do not think that in expressing these views the learned Chief Justice intended to explain the full scope of the word law as used in article 21
What he was concerned with was to examine whether rules of natural justice could also be covered by that word in this article and he held that this will not be justified
In later cases the Court has clarified the position and has held that the word law in article 21 includes subordinate legislation not enacted by the legislature but promulgated by the delegated authority in exercise of its statutory powers
Thus in Maqbool Hussain vs The State of Bombay  Connected Cases1 the Punjab Communist Detenus Rules 1950 framed by the Government of Punjab under section 4a of the were held to be covered by the word law
In Pandit M section M Sharma vs Shri Sri Krishna Sinha and Others2 Rules made by the Legislature under articles 1181 and 2081 and the privileges of each House under articles 1053 and 1943 were held to be law justifying deprivation of personal liberty guaranteed by article 21
In the case of Makhan Singh vs State of Punjab  Connected Appeals3 the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance 1962 were held to be law for purposes of Article 21
Thus this Court has clearly laid it down that Rules made by a subordinate legislative authority in exercise of its delegated power of legislation granted by the Constitution or a Statute enacted by the legislature are law for purposes of article 21 though of course it is always open to the person affected to challenge the validity of those Rules
In the present case
we have already held that r 37 of the Rules has been framed in exercise of the powers of the High Court under article 227 of the Constitution and section 554 of the Code of Criminal Procedure and is a valid Rule
In these circumstances the conviction of the appellant in a trial held in violation of that Rule and the award of sentence of death will result in the deprivation of his life in breach of the procedure established by law
Learned counsel also urged that we should not hold the con viction and sentence to be void when it is not shown that there was any prejudice to the appellant by the failure of the court to observe the procedure laid down by the Rule
In our opinion in such a case the question of prejudice does not arise when a citizen is deprived of his life without complying with the procedure prescribed by law
We may however add that in this case the facts indicate that there was in fact prejudice to the accused caused by the non compliance with the requirement of r 37 of the Rules
The two principal witnesses Naziran and Khan Bahadur were examined immediately after the appointment of 1  2 1959 Supp 1 SCR 806
3 1964 4 SCR 797
41 amicus curiae counsel and the application presented on behalf of the accused on 10th March 1967 to which we have referred above clearly shows that the counsel felt that he had not been able to cross examine at least the sole eye witness Khan Bahadur properly
That is why he presented an application for recall of that witness
It is obvious that in rejecting that application the Sessions Judge failed to notice that the counsel had been appointed on the very day when that witness was examined and sufficient time had not been granted to him to prepare the defence
In fact we feel that in such cases if sufficient time is not granted to the counsel to prepare defence prejudice must necessarily be inferred and the trial will be vitiated
As a consequence we set aside the conviction and sentence of the appellant
Since we are holding that the conviction is void because of an error in the
procedure adopted at the trial we direct that the appellant shall be tried afresh for this charge after complying with the requirements of law so that the case is remanded to the Court of Session for this purpose
VPS Appeal allowed and retrial order


Summary:
The appellant was charged with the offence of murder under section 302 IPC
Just before the beginning of the trial the Sessions Court appointed an advocate as amicus curiae to represent the appellant
After the examination of witnesses on the day on which the case was posted for argument appellant s counsel prayed for the recall of the sole eyewitness for further cross examination as the witness could not be cross examined effectively
The application was rejected and after hearing arguments the court con victed the appellant and sentenced him to death
The conviction and sentence were confirmed by the High Court
in appeal to this Court it was contended that the belated appointment of counsel deprived the appellant of adequate legal aid and that be would be deprived of his life in breach of his fundamental right under article 21
HELDThe right on which the accused based his claim is based on r37 of the General Rules Criminal 1957 promulgated by the High Court in exercise of its powers under article 227 of the Constitution and section 554 of the Criminal Procedure Code
Therefore the rule is a statutory rule and forms part of the procedure for trial of criminal cases
Its intention is that no accused person should remain unrepresented by a lawyer if he is being tried on a charge for which a capital sentence can be awarded
Notwithstanding the use of the word may 
considering the purpose of the rule it must be interpreted as laying down a mandatory direction to the Court to engage a counsel if the conditions laid down therein are satisfied
As the rule supplements the provision contained in section 304 Cr
PC under which such appointment of counsel is not mandatory it is not in conflict with the section
The last clause of the rule requires that the counsel appointed under the Rules shall be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence
35D E 36 E 3B D E F In the present case when the counsel was appointed just before the trial started there was a failure to comply with the requirements of the rule
Even though counsel did not ask for time it was the duty of the court under the rule to grant sufficient time to counsel and when sufficient time was not granted to counsel to prepare the defence prejudice must necessarily be inferred and the trial held vitiated
Further as the word law  in article 21 includes subordinate legislation promulgated by delegated authority there is a breach of article 21 and therefore the question of prejudice does not arise
38C 40B G H 41B Maqbool Hussain vs State of Bombay   Pandir M section M Sharma vs Shri Sri Krishna Sinha 1950 Supp 1 SCR 806 and Makhan Singh vs State of Punjab 1964 4 SCR 797 followed
33 A K Gopalan vs State of Madras   111 112 Janardan Reddy vs State of Hyderabad  and Tara Singh vs The State   explained
ReAlla Nageswara Rao AIR 1957 AP 505 and Mathai Thommen vs State AIR 1959 Kerala 241 referred to