ANOKHILAL versus STATE OF MADHYA PRADESH
[2019] 18 S.C.R. 1196, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Facts
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ANOKHILAL
v.
STATE OF MADHYA PRADESH
(Criminal Appeal Nos.62–63 of 2014)
DECEMBER 18, 2019
[UDAY UMESH LALIT, INDU MALHOTRA AND
KRISHNA MURARI, JJ.]
Legal Services: Grant of free legal aid – Real and meaningful
assistance – Entitlement to – On facts, in the case of rape and murder
of a minor girl, appointment of counsel through legal services to
represent the accused-appellant – The day the counsel appointed,
on the same day charges framed against the appellant for offence
punishable u/ss. 363, 366, 377, 376(2)(f) and 302 IPC r/w s. 6 of
POCSO Act – Thereafter, conviction of appellant and imposition of
death sentence and other sentences by courts below – On appeal,
held: The day Amicus Curiae was named, on the same date, the counsel
was called upon to defend the accused at the stage of framing of
charges – Amicus Curiae did not have sufficient time to go through
even the basic documents, nor the advantage of any discussion or
interaction with the accused, and time to reflect over the matter –
Even before the Amicus Curiae could come to grips of the matter,
the charges were framed and trial itself was concluded within a
fortnight – Approach adopted by the trial court, may have expedited
the conduct of trial, but did not further the cause of justice – It left
glaring gaps – Thus, in the process, the assistance that the appellant
was entitled to in the form of legal aid, could not be real and
meaningful – Counsel ought
to have been afforded sufficient
opportunity to study the matter and the infraction in that behalf
resulted in miscarriage of justice – Judgment of conviction and
orders of sentence passed by courts below against the appellant set
aside directing de novo consideration wherein the counsel would
take up the remaining issue – Penal Code, 1860 – ss. 363, 366,
377, 376(2)(f) and 302 – Protection of Children from Sexual
Offences Act, 2012 – s. 6.
Advocates/Lawyer: Appointment as Amicus Curiae –
Guidelines for, in cases where there is a possibility of life sentence
[2019] 18 S.C.R. 1196
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or death sentence – Held: Advocates having 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 –
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 – Counsel appointed
as Amicus Curiae, to be provided some reasonable time to prepare
the matter – Minimum seven days’ time may normally be considered
to be appropriate and adequate.
Criminal Trial – Expeditious disposal – Necessity of – Held:
Expeditious disposal is required in criminal matters and that would
naturally be part of guarantee of fair trial – However, the attempt
to expedite the process should not be at the expense of the basic
elements of fairness and the opportunity to the accused – The cause
of justice must never be allowed to suffer or be sacrificed which is
paramount – Thus, the process may be expedited, but fast tracking
of process must never ever result in burying the cause of justice –
Administration of criminal justice.
Constitution of India: Art. 39A – Equal justice and free legal
aid – Held: Article 39-A 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 – Right to Free Legal
Services is an essential ingredient of ‘reasonable, fair and just’
procedure for a person
accused of an offence – Trial must be
conducted in such a manner as will punish the innocent and punish
the guilty – Counsel must be given sufficient and adequate time to
prepare for the defence – Legal Services Authorities Act, 1987.
Disposing of the appeals with direction to list the matter
on 18.02.2020 for consideration of other related issues, the Court
HELD: 1.1 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. It has been well accepted that Right to Free Legal
Services is an essential ingredient of ‘reasonable, fair and just’
ANOKHILAL v. STATE OF MADHYA PRADESH
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procedure for a person accused of an offence and it must be held
implicit in the right guaranteed by Article 21. The decision of
this Court in Best Bakery case emphasizes 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. Even before insertion
of Article 39-A in the Constitution, the decision of this Court in
Bashira’case 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 defense 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. In Bashira as well as in Ambadas making
substantial progress in the matter on the very day after a counsel
was engaged as Amicus Curiae, was not accepted by this Court
as compliance of ‘sufficient opportunity’ to the counsel. [Para
13][1231-B-H; 1232-A]
1.2 In the instant case, the Amicus Curiae, was appointed
on 19.02.2013, and on the same date, the counsel was called upon
to defend the accused at the stage of framing of charges. One can
say with certainty that the Amicus Curiae did not have sufficient
time to go through even the basic documents, nor the advantage
of any discussion or interaction with the accused, and time to
reflect
over the matter. Thus, even before the Amicus Curiae
could come to grips of the matter, the charges were framed. [Para
14][1232-A-B]
1.3 The trial court on its own, ought to have adjourned the
matter for some time so that the Amicus Curiae could have had
the advantage of sufficient time to prepare the matter. The
approach adopted by the trial court, may have expedited the
conduct of trial, but did not further the cause of justice. Not only
were the charges framed the same day, but the trial itself was
concluded within a fortnight thereafter. In the process, the
assistance that the appellant was entitled to in the form of legal
aid, could not be real and meaningful. [Para 15][1232-D-E]
1.4 There are other issues which also arise in the matter
namely that the examination of 13 witnesses within seven days,
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the examination of the accused under the provisions of the Section
313 of the Code even before the complete evidence was led by
the prosecution, and not waiting for the FSL and DNA reports in
the present case. DNA report definitely formed the foundation of
discussion by the High Court. However, the record shows that
the DNA report was received almost at the fag end of the matter,
and after such receipt, though technically an opportunity was given
to the accused, the issue on the point was concluded the very
same day. The concluding paragraphs of the judgment of the trial
court show that the entire trial was completed in less than one
month with the assistance of the prosecution as well as the
defense, but, such expeditious disposal definitely left glaring gaps.
[Para 16][1232-F-H; 1233-A]
1.5 Expeditious disposal is undoubtedly required in criminal
matters and that would naturally be part of guarantee of fair trial.
However, the attempts to expedite the process should not be at
the expense of the basic elements of fairness and the opportunity
to the accused, on which postulates, the entire criminal
administration of justice is founded. In the pursuit for expeditious
disposal, the cause of justice must never be allowed to suffer or
be sacrificed. What is paramount is the cause of justice and
keeping the basic ingredients which secure that as a core idea
and ideal, the process may be expedited, but fast tracking of
process must never ever result in burying
the cause of justice.
[Para 18][1233-C-D]
1.6 In the circumstances, going by the principles laid down
in Bashira, the submission made by the Amicus Curiae is accepted
and held that the counsel appointed through Legal Services to
represent the appellant in the instant case ought to have been
afforded sufficient opportunity to study the matter and the
infraction in that behalf resulted in miscarriage of justice. In light
of the conclusion, there is no necessity to consider other
submissions advanced by the Amicus Curiae. It is said by way of
caution that in matters where death sentence could be one of the
alternative punishments, the courts must be completely vigilant
and see that full opportunity at every stage is afforded to the
accused. [Para 19][1233-E-G]
ANOKHILAL v. STATE OF MADHYA PRADESH
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1.7 There is no hesitation in setting aside the judgments of
conviction and orders of sentence passed by the trial court and
the High Court against the appellant and directing de novo
consideration. It shall be open to the counsel representing the
appellant in the trial court to make any submissions touching
upon the issues whether the charges framed by the trial court
are required to be amended or not; whether any of the prosecution
witnesses need to be recalled for further cross–examination; and
whether any expert evidence is required to be led in response to
the FSL report and DNA report. The matter shall, thereafter, be
considered on the basis of available material on record in
accordance with law. [Para 20][1233-H; 1234-A-B]
1.8 Certain norms are laid down that in all cases where
there is a possibility of life sentence or death sentence, 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; that 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 ; that whenever any 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 days’ time
may normally be considered to be
appropriate and adequate; that any counsel, who is appointed as
Amicus Curiae on behalf of the accused must normally be granted
to have meetings and discussion with the concerned accused.
Such interactions may prove to be helpful as was noticed in Imtiyaz
Ramzan Khan. [Para 22][1234-D-G]
Bashira v. State of U.P., [1969] 1 SCR 32 : AIR 1968
SC 1313 - relied on.
Mohd. Hussain Alias Julfikar Ali v. State (Government
of NCT of Delhi), (2012) 9 SCC 408 : [2012] 10 SCR
480; Re: Alla Nageswara Rao, Petitioner AIR 1957 AP
505; Mathai Thommen v. State AIR 1959 Kerala 241;
Hussainara Khatoon and Others (IV) v. Home Secretary,
State of Bihar, Patna (1980) 1 SCC 98 : [2012] 6 SCR
1182; Rajoo Alias Ramakant v. State of Madhya
Pradesh (2012) 8 SCC 553; Khatri and Others (II) v.
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State of Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408;
Suk Das v. Union Territory of Arunachal Pradesh,
(1986) 2 SCC 401 : [1986] 1 SCR 590; Machander v.
State of Hyderabad AIR 1955 SC 792 : [1955] 2 SCR
524; Gopi  Chand  v. Delhi Admn AIR 1959 SC 609 :
1959 Crl. L. J. 782; Tyron Nazareth  v.  State  of Goa
(1994) 3 Suppl. SCC 321; S. Guin v. Grindlays Bank
Ltd.  (1986) 1 SCC 654 : [1985] 3 Suppl. SCR 818;
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC
225 : [1991] 3 Suppl. SCR 325 ; Hussainara Khatoon
(1) v. State  of  Bihar (1980) 1 SCC 81 : [1979] 3 SCR
169; Hussainara  Khatoon (3) v. State of Bihar (1980)
1 SCC 93; Raghubir Singh v. State of  Bihar (1986) 4
SCC 481; Kartar Singh v. State of Punjab  (1994) 3
SCC 569; Zahira Habibulla H. Sheikh  v. State of
Gujarat (2004) 4 SCC 158; Ankush Maruti Shinde and
Others v. State of Maharashtra, (2009) 6 SCC 667;
Ambadas Laxman Shinde and Others  v. State of
Maharashtra (2018) 14 SCALE 730 : (2018) 18 SCC
788; Ankush Maruti Shinde and Others v. State of
Maharashtra (2019) SCC Online SC 317; Imtiyaz
Ramzan Khan v. State  of  Maharashtra (2018) 9 SCC
160; Imtiyaz Ramzan Khan v. State of Maharashtra
(2018) 9 SCC 163; V. K. Sasikala v. State Represented
by Superintendent of Police (2012) 9 SCC 771 –
referred to.
Case Law Reference
(2012) 9 SCC 408
referred to
Para 6
AIR 1957 AP 505
referred to
Para 7
AIR 1959 Kerala 241
referred to
Para 7
(1980) 1 SCC 98
referred to
Para 8 and 10
(2012) 8 SCC 553
referred to
Para 9
(1981) 1 SCC 627
referred to
Para 9
(1986) 2 SCC 401
referred to
Para 9
[1955] 2 SCR 524
referred to
Para 10
AIR 1959 SC 609
referred to
Para 10
ANOKHILAL v. STATE OF MADHYA PRADESH

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(1994) 3 Suppl. SCC 321
referred to
Para 10
(1986) 1 SCC 654
referred to
Para 10
(1992) 1 SCC 225
referred to
Para 10
(1980) 1 SCC 81
referred to
Para 10
(1980) 1 SCC 93
referred to
Para 10
(1986) 4 SCC 481
referred to
Para 10
(1994) 3 SCC 569
referred to
Para 10
(2004) 4 SCC 158
referred to
Para 10
(2009) 6 SCC 667
referred to
Para 11
(2018) 14 SCALE 730
referred to
Para 11
(2018) 9 SCC 160
referred to
Para 12
(2018) 9 SCC 163
referred to
Para 12
[1969] 1 SCR 32
relied on
Paras 13,19
(2012) 9 SCC 771
referred to
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 62-63 of 2014.
From the Judgment and Order dated  27.06.2013 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Reference No. 4 of
2013 and Criminal Appeal No.748 of 2013.
Varun Chopra, Dy. AG, Sidharth Luthra, Ms. Sonia Mathur,
Sr. Advs., Anoopam N. Prasad, Ms. Mehaak Jaggi, Ms. K. V. Bharathi
Upadhyaya, Gurtejpal Singh, Harsh Parashar, Sushil Kumar Dubey,
Ms. Divya A. Nair, Puneet Pathak, Anuj Aggarwal, Anmol Chandan,
Ms. Priyanka Das, Sumit Upadhyay, Arvind Kumar Sharma, Advs. for
the appearing parties.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals by special  leave challenge the final judgment
and order dated 27.06.2013 passed by the High Court1 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.
ANOKHILAL v. STATE OF MADHYA PRADESH
1 The High Court of Madhya Pradesh at Jabalpur
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(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
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(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 may be helpful in  providing  justice,  hence  reports
are taken on record.
Above reports may be acceptable under Section 293 Cr.P.C., on
this basis it was requested to mark exhibit on above reports.
Defense has not raised any objection in this regard, hence with
consent of both the parties above reports presented by Regional
Forensic Science Laboratory Jhumarghat Rau Indore (M.P.) are
marked as ext. C-1, C-2 and C-3.
The prosecution has not yet received DNA report, the same  will
be placed on record as and when it is received, saying such like
earlier it was stated that any other evidence  is  not  to  be  produced,
hence hearing final arguments in case started, which remained
incomplete.
Put up on 01.03.2013 for placing on record DNA report and rest
final arguments.
Sd/-
Sessions Judge
Khandwa
(iii) 01.03.2013
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 has not received DNA report, same will be placed
on record on receipt.
Hearing of rest of final arguments
started which remained
incomplete.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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Put up on 02.03.2013 for placing on record DNA report and rest
of final arguments.
Sd/-
Sessions Judge
Khandwa
(iv) 02.03.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan advocate present on his behalf.
The accused is being tried under Section 9 of Protection of
Children from Sexual Offences Act, 2012 and according to
Provisions of Section 5 (f) of above Act, the situation of previous
conviction for the sexual offence under Section 377 IPC is also
clear and above fact has found mention in charge No.8 framed in
earlier with intention that despite being previously convicted  for
sexual offence under Section 377 IPC but  in  above charge date
time and place etc is not mentioned regarding conviction
according to provisions of Section  211 (7)  Cr.P.C. Hence, as is
provided under Section 211 (7) Cr.P.C. the Court before passing
order of conviction may add statement of  fact, date and place of
conviction, hence in this regard both the parties were heard. In
earlier the copy of judgment of previous conviction was not filed
due to which date, place etc were not mentioned in charge and
during examination under Section 313 Cr.P.C. in question  No.14
in this  regard  by  giving  reference  of copy of judgment together
with date, time and place etc conviction was passed and appeal
was filed or not in this regard clear questions were asked, hence
it also does not
reflect that any prejudice has been caused to
accused nevertheless to avoid technical fault, according to
provisions of Section  211  (7)  Cr.P.C. charge  was  modified  and
amended charge was read over and explained to accused and his
plea was recorded.
Giving opportunity of  additional evidence/cross examination to
both parties regarding amended charge would  be  just  and  proper,
in this regard both the parties were intimated.
Prosecution today by placing on record certain additional
documents articles etc. led additional evidence and application
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under Section 311 Cr.P.C. has been filed. Besides this, he stated
not to adduce any other additional evidence in regard to amendment
in charge. On the other hand defense also in this regard stated
not to conduct cross examine any witness already examined and
also stated not to furnish any additional evidence or evidence in
defense.
The prosecution presented articles relating to case in sealed
condition and an application with documents was filed under Section
311 Cr.P.C. Copy supplied. Arguments heard.
It is proposed  to  file  received  DNA report and correspondent
of FSL/DNA and in above regard also request has been made to
re-examine Investigating Officer K.K. Mishra (PW-13)  and  Head
Constable Harikaran PW-12 and accordingly, permission has been
sought.
It has been stated that concerned document and report since were
received in delay and it was filed  as earliest and by virtue of this
correspondence relating to above are being filed  now. It is
mentioned that DNA report was received on 01.03.2013 itself
hence considering the reason so disclosed during arguments
defense has not raised any effective objection hence, application
stands allowed and concerned documents are taken on record
and witness K.K. Mishra PW-13 and Hari Karan PW-12 are
permitted to be re-examined.
It has been stated by the public prosecutor that above witnesses
are present today, hence, above both the witnesses were
additionally examined with consent of defense and they were
discharged after re-examination. Prosecution stated not to adduce
any other evidence as such closed its evidence.
The packet of article so filed is in sealed condition, which was
opened in presence of both the parties. After evidence let same
be deposited in malkhana by duly sealing with memo of property.
In regard to additional evidence so adduced accused was re-
examined under Section 313 Cr.P.C. and again on entering in
defense, the accused stated not to adduce any evidence in defense
nor  any written statement was filed under Section 232(2) Cr.P.C.
and as such defense closed its evidence. Put up again for final
arguments.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, Advocate present on his behalf.
Heard final arguments. Put up on 04.03.2013 for judgment.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, khandwa
(v) 4.3.2013
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, advocate present on his behalf.
The judgment pronounced and signed separately in open court,
according to which accused was convicted under Section 363,
366, 377, 376(2)(f) and Section 302 IPC read with Section 6 of
Protection of Children from Sexual Offences Act, 2012.
Arguments were heard on the question of sentence. It was
informed to both the parties that if they wish, they may adduce
evidence  regarding  order  of sentence.
It was stated by the prosecution that due to  framing charge under
Section 211(7) Cr.P.C. regarding previous conviction of accused,
it has already adduced evidence at evidence stage regarding
previous conviction of accused and his previous criminal conduct,
hence now he does not want to adduce evidence regarding
conviction.
On the other hand, learned counsel for the defense Shri D.S.
Chauhan he has stated that during whole trial not any member of
family of accused has appeared and
in regard to his conduct in
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jail the prosecution itself has already adduced certificate etc. hence
he stated not to adduce any evidence regarding order of sentence,
nevertheless both the parties were informed that if they wish to
adduce any evidence in this regard, then they may do so. By
giving  above information  to  both  the  parties,  detailed  arguments
were heard regarding order of sentence.
Put up again after some time for order of sentence.
Sd/-
Sessions Judge and special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
Again
State through Shri B.L. Mandloi P.P.
Accused Anokhilal present from judicial custody. Shri D.S.
Chauhan, Advocate present on his behalf.
Both the parties again stated not to adduce any evidence regarding
order of sentence, hence order of sentence was pronounced
separately in open court according to which accused is convicted
and sentenced as follows regarding charges:
No.    Offence           Sentence of        Fine
In  default  of
U/s                  rigorous
payment of
                    imprisonment
fine, additional
sentence
of rigorous
           imprisonment
1.        302 IPC       Death                        -                    -
                Sentence
2.       363 IPC      Seven years         1000/-       One month
3.       366 IPC      Seven years         1000/-       One month
4.       377 IPC      Seven years         1000/-       One month
5.       376(2) IPC   Life                    1000/-       One month
imprisonment
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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Due to being similar act, no separate sentence is being awarded
for the offence under Section 6 of Protection of Children from
Sexual Offences Act, 2012.
By preparing warrant of conviction in this regard let accused be
sent to jail.
The accused has been sentenced to death also and in above regard
according to Section 366 Cr.P.C. it has also been directed that
death penalty be not executed so long as it is not confirmed by
the  Hon’ble  High Court, hence in that regard according to provision
of Section 366(2) Cr.P.C. warrant of handing over accused
sentenced to death to taken in custody of jail, is attached
separately with warrant. Copy of judgment is given to accused
and according to provisions of section  363 (4) Cr.P.C. accused
is informed that he has right to appeal and period of appeal.
Let entire record of this case be sent for placing before the Hon’ble
High Court forthwith for confirmation of death penalty as per
provisions of Section 366 Cr.P.C.
Sd/-
Sessions Judge and Special Judge
Under Protection of Children from Sexual Offences
Act, Khandwa
(G) In its judgment and order dated 4.3.2013, the Trial Court
accepted the case of the prosecution and stated:-
“65. From above analysis  it is clear that present case having
similar facts like judicial citation of Rajendra Prahladrao Vasnic is
in the category of ‘rarest of rare’ case and excess to that in the
present case accused is previous  convict  in  sexual
offence  of
similar  nature. Hence, in view of above analysis imposing punishing
of only imprisonment for life cannot be adequate and death
sentence is necessary.
66. Accused Anokhilal son of Sitaram has been convicted in  charge
of offence punishable under Section 363, 366, 376(2)(f), 377 and
302 IPC and Section 6 of Protection of Children from Sexual
Offences Act, 2012 hence, according to analysis so done:
(one)  for  the offence under Section 302 IPC accused Anokhilal
son of Sitaram is awarded ‘death sentence’. By tying knot in
neck, he be hanged till his death. It is also directed that above
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death sentence be not executed unless it is confirmed by the
Hon’ble High Court.
(two)  For the offence under Section 363 IPC the accused is
sentenced  to seven years rigorous imprisonment with fine of
Rs.1000/-,  in  default  of payment of fine, he is directed to undergo
another one month rigorous imprisonment.
(three) For the offence under Section 366 IPC, the accused is
sentenced to seven years rigorous imprisonment with fine of
Rs.1,000/-, in default of payment of fine, the accused is directed
to undergo another one month rigorous imprisonment.
(four) For the offence under Section 376 (2)(f) IPC the accused
is sentenced to imprisonment for life with fine of Rs.1000/-, in
default of payment of fine, he is directed to undergo another one
month rigorous imprisonment.
(five) For the offence under Section 377 IPC the accused is
sentenced to imprisonment for seven years with fine of
Rs.1,000/- in default of payment of fine, he is directed to undergo
another one month rigorous imprisonment.
(Six) Considering the provisions of Section 42 of Act, where for
similar act the accused has been convicted under the sections of
Act and IPC, then he should be sentenced for the offences having
larger punishment and in this regard principle of Section 71
IPC is also perusable and in Section 376(2)(f) IPC and in Section
6 of the  Act,  there  is  provision  of punishment for imprisonment
for life and minimum sentence of 10 yrs rigorous imprisonment
and for similar act,
order of sentence is being passed for the offence
under Section 376(2) (f) and Secton 377 IPC also, hence separate
order of sentence for the offence under Section 6 of Protection
of Children from Sexual Offences Act, 2012 is not being passed.
All the sentences of imprisonment shall run concurrently.
67. The accused is in detention since 04.02.2013 hence, let
certificate of the period undergone by him in detention during  trial
be attached with warrant as per provisions section 428 Cr.P.C.
which may be used for setting off under Section 428 Cr.P.C. or
as per requirement for computing sentence  as  provided  in Section
433 Cr.P.C.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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68. On payment of fine, entire amount of fine means Rs.4000/-
unless otherwise directed, after expiry of period of appeal be paid
to Shantubai PW-3 mother of deceased as compensation.
69.  According  to  provisions  of  Section  366  Cr.P.C. let entire
records and proceeding of the case be placed before the Hon’ble
High Court, Jabalpur for confirmation of death sentence and death
sentence be not executed till it is confirmed by the Hon’ble Madhya
Pradesh High Court and for keeping accused in custody in above
period let he be handed over with warrant in above regard for jail
custody.
70. I appreciate for assistance of all where in regard to incident
which happened in mid night of 30-31 January, after arrest of
accused on 04.02.2013, completing investigation immediately
charge-sheet was submitted on  18th February and to prosecution
which ensured quick trial by placing entire evidence from 19
February to 02 March, 2013 and specially for assistance of  defence
because disposal of case is ensured within only 1 month of incident
only because of  above  assistance and completing trial only in 12
working days could be possible.”
(H) Criminal Reference No.4/2013 was accordingly registered in
the High Court for confirmation of death sentence. The appellant also
preferred Criminal Appeal No.748 of 2013 challenging his conviction
and  sentence. The High Court by its judgment and order presently under
appeal, affirmed the view
taken by the Trial Court and upheld the death
sentence and other sentences imposed by the Trial Court. It was observed
by the High Court as under:-
“8. ……. The victim was, thus, last seen alive with the accused
by Kirti Bai whose evidence discloses that the victim and accused
were seen together at the point of time in proximity with the time
and date of the commission of crime. Also after the incident no
one saw the accused alone because he had absconded. We are,
therefore, of the view that the prosecution has successfully
established the last seen theory beyond any reasonable doubt
against the accused.
9. We also find that the report, Ex.58, of the DNA Finger Printing
Unit completely connects the accused with the commission of
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crime. The report clearly states that the hairs seized from the fist
of victim and the skin found in the cut-nails of victim belonged to
the accused. The  report further states that the semen found on
the paijama of victim was of the accused. Not only this, according
to the report, blood found on the underwear of accused was of
the victim. The cremation of the body of victim was done on
1.2.2013 whereas the accused was arrested on 4.2.2013. There
was, therefore, no possibility of the blood of victim having been
put on the seized underwear of the accused.
…     …     …
11. The evidence on record clearly establishes that the accused
was close to the family of Ramlal and the victim trusted him.
She,  therefore, on his asking immediately rushed to buy “bidi”
for him from a kirana shop. The accused then followed the victim
with a premeditated mind to commit the crime. The accused, taking
advantage of the trust of victim, after kidnapping  and  subjecting
her to brutal rape and carnal sex most gruesomely throttled her to
death. The numerous injuries on the body of victim testify this
fact. He even dumped the body of victim in the field. Earlier also,
the accused was convicted vide judgment dated  21.10.2010,  Ex.49,
for committing carnal sex with a small boy. Thus, an innocent
hapless girl of nine years was subjected to a barbaric treatment
showing extreme depravity and arouses a sense of revulsion in
the mind of a common man. We feel that the crime committed
satisfies the test of “rarest of rare” cases. We, therefore, uphold
the death sentence and also other sentences imposed by the trial
court.”
3. During the pendency of these appeals in this Court, it was
observed by this Court in its Order dated 12.12.2018 as under:-
“One of the issues that has arisen in the present case is compliance
with  the  statutory  timeframe  fixed  by proviso to Section 309(1)of
the Cr.P.C.(as amended in 2018). That Section provides a time
limit of 60 days within which the trial is supposed to be completed.
In this context, we consider it appropriate to explore the possibility
of using video-conferencing for the purpose of recording evidence
since it is believed that such use will eliminate the time taken for
summoning the witnesses to Court.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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However, an apprehension is expressed at the Bar that the video-
conferencing facility is not always available throughout the trial
in various parts of the country and in the present state of the art,
it cannot be wholly relied on. Since, this appears to be
surmountable, we consider it appropriate to hear National
Informatics Centre (NIC) and Department of Justice in the matter.
Accordingly, issue notice … …”
4. When these appeals came up for final hearing, certain issues
were highlighted by Mr. Siddharth Luthra, learned Senior Advocate who
appeared for the appellant on behalf of the Supreme Court Legal Services
Authority. According to him, the way the trial was conducted, there was
no fairness at all and the interest of the appellant-accused was put to
prejudice on more than one count. The principal submission was  recorded
in the order dated 10.12.2019 passed by this Court as under:-
“In the submission of the learned  Senior  Counsel, following aspects
are, therefore, very clear:
a)  The learned Amicus Curiae came to be appointed the  same
day when the charges were framed, which effectively means
that the learned Amicus Curiae did not have sufficient
opportunity  to study the matter nor did he have any opportunity
to have any interaction with the accused to seek appropriate
instructions;
The other issues noted in the Order dated 12.12.2018 were
referred to but it was observed:-
“As presently advised, we will deal
first with the issue pertaining
to the present trial and whether the approach adopted by the Trial
Court in the present matter could be accepted or whether there
was any infraction or error on the part of the Trial Court  in adopting
the approach in the present matter. Other issues, namely
applicability of Section 309 and advisability of having video-
conferencing in the matter will be dealt with at a later stage and
the consideration of these  issues,  for  the  time  being,  is deferred.”
5. The consideration at present is thus confined to the issue as
stated above.
6. In support of his submissions, Mr. Sidharth Luthra, learned Senior
Advocate, relied upon certain decisions of this court and, particularly, in
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Bashira vs. State of U.P.2 and Mohd. Hussain Alias Julfikar Ali vs.
State (Government of NCT of Delhi)3. Mr. Varun Chopra, Deputy
Advocate General appearing for the State, however, submitted that the
evidence on record, without any doubt, pointed towards the guilt of the
accused and as such the order of conviction recorded by the Courts
below was correct and did not call for any interference.
7. In  Bashira2,  the Trial  Court  had  fixed  28th February, 1967
as the date for starting the actual trial and, on that very day, before
beginning the trial, an Amicus Curiae was appointed to represent the
accused. On that very day, the Trial Court amended the charge to which
the accused pleaded not  guilty  and  two  principal  prosecution  witnesses
were examined. The other witnesses were examined on 1st March, 1967
and the accused was also examined under Section 342 of the Code of
Criminal Procedure, 1898 (equivalent  to  Section  313  of  the  Code  of
Criminal Procedure, 1973 or “the Code”, for short). The case was
thereafter fixed on 10th March, 1967 for arguments, on which date the
Amicus Curiae presented an application for recall of one of the
prosecution  witnesses  for  further  cross-examination. The application
was rejected. Arguments were then heard on the same day and the
judgment was delivered on 13th March, 1967 convicting the accused
for the offence under Section 302 IPC and sentencing him to death. In
the backdrop of these facts, the submissions
of the Amicus Curiae
appearing in this Court were recorded as under:-
“2. 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 28th February, 1967, just when the trial
was about to begin  and 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.”
2 (1969) 1 SCR 32 : AIR 1968 SC 1313
3 (2012)  9 SCC 408
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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[2019] 18 S.C.R.
The submissions were dealt with as under:-
“8. 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.
9. 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,
Petitioner4 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”.
4 AIR 1957 AP 505
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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 v. State5 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 trial was
posted to begin on 4th August, 1958, showing that 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 him 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 the 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.
(Emphasis by us)
It was also stated that the violation of the mandate of the concerned
Rule would amount to breach of rights conferred by Article 21 of the
Constitution as under:
“In these circumstances, 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.”
5 AIR 1959 Kerala 241
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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The operative part of the decision was :-
“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.”
8. In Hussainara Khatoon and others (IV) v. Home Secretary,
State of Bihar, Patna6 it was observed as under:
“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 from 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.…….”
9. The developments in the matter of providing free Legal Aid as
translated in various schemes and dealt with in the decisions of this
6 (1980) 1 SCC 98
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Court, were noted in Rajoo Alias Ramakant v. State of Madhya
Pradesh7 as under:
“6. By the Forty-second Amendment to the Constitution, effected
in 1977, Article 39-A was inserted. This article provides for free
legal aid by suitable legislation or schemes or in any other manner,
to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.
7. Article 39-A of the Constitution 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.”
8. Subsequently,  with the  intention  of providing free legal aid,
the Central Government resolved (on 26-9-1980)  and appointed
the “Committee for Implementing the Legal Aid  Schemes”. This
Committee was to monitor and implement legal aid programs on
a uniform basis throughout the country in fulfilment of the
constitutional mandate.
9. Experience gained from a review of the working of the
Committee eventually led to the enactment of the Legal  Services
Authorities Act, 1987 (for short “the Act”).
10. The Act provides, inter alia, for the constitution of a National
Legal Services Authority, a Supreme Court Legal Services
Committee, State Legal Services Authorities as well as Taluk
Legal Services Committees. Section 12 of the Act lays down the
criteria for providing legal services. It provides, inter alia, that
every person who has to file or defend a case shall be entitled to
legal services, if he or she is in custody. Section 13 of the Act
provides that persons meeting the criteria laid down in Section 12
of the Act will be entitled to legal services provided the authority
concerned is satisfied that such person has a prima facie case to
prosecute or defend.
7 (2012) 8 SCC 553
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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11. It is important to note in this context that Sections 12  and 13
of the Act do not make any distinction between the trial stage
and the appellate stage for providing legal services. In  other  words,
an eligible person is entitled to legal services at any stage of the
proceedings which he or she is prosecuting or defending. In fact
the Supreme Court Legal Services Committee provides legal
assistance to eligible persons in this Court. This makes it abundantly
clear that legal services shall be provided to an eligible person at
all stages of the proceedings, trial as well as appellate. It is also
important to note that in view of the constitutional mandate of
Article 39-A, legal services or legal aid is provided to an eligible
person free of cost.
Decisions of this Court
12. Pending the enactment of the Legal Services Authorities Act,
the issue of providing free legal services or free legal aid or free
legal representation (all terms being understood as synonymous)
came up for consideration before this Court.
13.  Among the first few decisions in this regard is Hussainara
Khatoon (4) v. Home Secretary, State of Bihar, Patna6. In that
case, reference was made to Article 39-A of the Constitution and
it was held that (SCC p. 105, para 7) free legal service is an
inalienable element 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 [of the Constitution]”. It was noted that:
“This is a constitutional right of every accused person who is
unable to engage a lawyer and secure [free] legal services on
account of reasons such  as  poverty, indigence or incommunicado
situation.” It was held that 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, subject of course to the accused
person not objecting to the providing of a lawyer.
14. The essence of this decision was followed in Khatri and
others (II) v. State of Bihar8. In that case, it was noted that the
Judicial Magistrate did not provide legal representation to the
accused persons because they did not ask for it. This was found
to be unacceptable. This Court went further and held that it was
8 (1981) 1 SCC 627
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the obligation of the Judicial Magistrate before whom the accused
were produced to inform them of their entitlement to legal
representation at State cost. In this context, it was observed that
the right to free legal services would be illusory unless the
Magistrate or  the Sessions Judge before whom the accused is
produced informs him of this right. It would  also make a mockery
of legal aid if it were to be left to a poor, ignorant and illiterate
accused to ask for free legal services thereby rendering the
constitutional mandate a mere paper promise.
15. Suk Das v. Union Territory of Arunachal Pradesh9
reiterated the requirement of providing free and adequate legal
representation to an indigent person and a person accused of an
offence. In that case, it was reiterated that an accused need not
ask for legal assistance—the Court dealing with the case is obliged
to inform  him or  her  of  the  entitlement  to free  legal aid. This
Court observed that (SCC p. 407, para 5) it was now
“settled law that free legal assistance at State cost is a
fundamental right of a person accused of an offence which
may involve jeopardy to his life or personal liberty and this
fundamental right is implicit in the requirement of reasonable,
fair and just procedure prescribed by Article 21 [of the
Constitution]”.
16. Since the requirements of law were not met in that case, and
in the absence of the accused person being provided with legal
representation at State cost, it was
held  that  there  was  a  violation
of the fundamental right  of the accused under Article 21 of the
Constitution. The trial was held to be vitiated on account of a
fatal constitutional infirmity and the conviction and sentence were
set aside.
17. We propose to briefly digress and advert to certain observations
made, both in Khatri (2)8 and Suk Das9 In both cases, this Court
carved out some exceptions in respect of grant of free legal aid
to an accused person. It was observed that: (SCC p. 632, para 6)
“6. … There may be cases involving offences such as economic
offences or offences against law prohibiting prostitution or child
9 (1986) 2 SCC 401
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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abuse and the like, where social justice may require that free
legal services need not be provided by the State.”
We have some reservations whether such exceptions can be
carved out particularly keeping in mind the constitutional  mandate
and  the  universally  accepted principle  that  a  person  is  presumed
innocent until proven guilty. If such exceptions are accepted, there
may be a tendency to add some more, such as in cases of
terrorism, thereby diluting the constitutional mandate and the
fundamental right guaranteed under Article 21 of the Constitution.
However, we need not say  anything  more  on  this  subject  since
the issue is not before us.
18. The above discussion conclusively shows that this Court has
taken a rather proactive role in the matter of providing free legal
assistance to persons accused of an offence or convicted of an
offence.”
10. In Mohd. Hussain @ Julfikar Ali v. State (Government of
NCT of Delhi)3 one of the submissions advanced on behalf of the accused
was that he was denied right of a counsel and thus was not given fair
and impartial trial. H.L. Dattu, J. (as the learned Chief Justice then was)
in para 7 of his decision  quoted  orders  passed  by  the  Trial  Court  and
in paras 10 to 12 observed that the evidence of 56 witnesses was recorded
by the Trial Court without providing a counsel to the appellant-accused.
It was stated: -
“18. Section 311 of the Code empowers a criminal
court to
summon any person as a witness though not summoned as a
witness or recall and re-examine any person already examined at
any stage of any enquiry, trial or other proceeding and the court
shall summon and examine or recall and re-examine any such
person if his evidence appears to be essential  to  the  just decision
of the case.
19.  If the appellate court in an appeal from a conviction under
Section 386 orders the accused to be retried, on the matter being
remanded to the trial court and on retrial of the accused, such trial
court retains the power under Section 311 of the Code unless
ordered otherwise by the appellate court.
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20. In Machander v. State of Hyderabad10, it has been stated
by this Court that while it is incumbent on the court to see that no
guilty person escapes but the court also has to see that justice is
not delayed and the accused persons are not  indefinitely harassed.
The Court further stated that the scale must be held even between
the prosecution and the accused.
21. In Gopi Chand v. Delhi Admn11, a Constitution Bench of this
Court was concerned with the criminal appeals wherein plea of
the validity of the trial and of the orders of  conviction  and  sentence
was raised by the appellant. That was a case where the appellant
was charged for three offences which were required to be tried
as a warrant case by following the procedure prescribed in the
Criminal Procedure Code, 1898 but he was tried under the
procedure prescribed for the trial of a summons case. The
procedure for summons case and warrants case was materially
different. The Constitution Bench held that having regard to the
nature of the charges framed and the character and volume of
evidence led, the appellant was prejudiced; the  trial of the three
cases against the appellant was vitiated and the orders of
conviction and sentence were rendered invalid. The Court,
accordingly, set aside the orders of conviction and sentence.  While
dealing with the question as to what final order should be passed
in the appeals, the Constitution Bench held as under: (AIR pp.
619-20, para 29)
“29.   …   The
offences with which the appellant stands
charged are of a very serious nature; and though it is true that
he has had to undergo the ordeal of a trial and has suffered
rigorous imprisonment for some time that would not justify his
prayer that we should not order his retrial. In our opinion, having
regard to the gravity of the offences charged against the
appellant, the ends of justice require that we should direct that
he should be tried for the said offences de novo according to
law. We also direct that the proceedings to be taken against
the appellant hereafter should be commenced without delay
and should be disposed as expeditiously as possible.”
10 AIR 1955 SC 792 : (1955) 2 SCR 524
11 AIR 1959 SC 609 : 1959 Crl. L. J. 782
ANOKHILAL v. STATE OF MADHYA PRADESH
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22.  A two-Judge Bench of this Court in Tyron Nazareth v. State
of Goa12, after holding that the conviction of the appellant was
vitiated as he was not provided with legal aid in the course of trial,
ordered retrial. The brief order reads as follows: (SCC p. 322,
para 2)
“2. We  have heard the learned counsel for the State. We
have also perused the decisions of this Court in Khatri (2) v.
State of Bihar8 and Sukh Das v. UT, Arunachal Pradesh9.
We find that the appellant was not assisted by any lawyer and
perhaps he was not aware of the fact that the minimum
sentence provided under the statute was 10 years’ rigorous
imprisonment and a fine of Rs 1 lakh. We are, therefore, of the
opinion that in the circumstances the matter should go back to
the tribunal. The appellant if not represented by a lawyer may
make a request to the court to provide him with a lawyer under
Section 304 of the Criminal Procedure Code or under any other
legal aid scheme and the court may proceed with the trial  afresh
after  recording  a  plea  on  the charges. The appeal is allowed
accordingly. The order of conviction and sentence passed by
the  Special  Court  and  confirmed  by  the High Court are set
aside and a de novo trial is ordered hereby.”
23. This Court in S. Guin v. Grindlays Bank Ltd.13 was concerned
with  the case where the trial court acquitted the appellants of
the offence punishable under Section 341 IPC read with Section
36-AD
of the Banking Regulation Act, 1949. The charge against
the appellants was that they had obstructed the officers of the
Bank, without reasonable cause, from entering the premises of a
branch of the Bank and also obstructed the transaction of normal
banking business. Against their acquittal, an appeal was preferred
before the High Court which allowed it after a period of six years
and remanded the case for retrial. It was from the order of remand
for retrial that the matter reached this Court. This Court while
setting aside the order of remand in para 3 of the Report held as
under: (SCC pp. 655-56)
“3. After going through the judgment of the Magistrate and of
the High Court we feel that whatever might have been the
12 1994 Supp (3) SCC 321
13 (1986) 1 SCC 654
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error committed by the Magistrate, in the circumstances of
the case, it was not just and proper for the High Court to   have
remanded the case for fresh trial, when the order of acquittal
had been passed nearly six years before the judgment   of the
High Court. The pendency of the criminal appeal for six years
before the High Court is itself a regrettable feature of  this
case. In  addition to it, the order directing retrial has resulted in
serious prejudice to the appellants. We are of the view that
having regard to the nature of the acts alleged to have been
committed by the appellants and other attendant
circumstances, this was a case in which the High Court should
have directed the dropping of the proceedings in exercise of
its inherent powers under Section 42  of the Criminal Procedure
Code even if for some reason it came to the conclusion that
the acquittal was wrong. A fresh trial nearly seven years after
the alleged incident  is bound to result in harassment and abuse
of judicial process.”
24. The Constitution Bench of this Court in Abdul Rehman
Antulay v. R.S. Nayak14 considered right of an accused to speedy
trial in light of Article 21 of the Constitution and various provisions
of the Code. The Constitution Bench also extensively referred to
the earlier decisions of this Court in Hussainara Khatoon (1) v.
State of Bihar15, Hussainara Khatoon (3) v. State of Bihar16,
Hussainara Khatoon (4) v. State of Bihar6 and Raghubir Singh
v. State of
Bihar17 and noted that the provisions of the Code are
consistent with the constitutional guarantee of speedy trial
emanating from Article 21. In para 86 of the Report, the Court
framed guidelines. Sub-paras (9) and (10) thereof read as under:
(Abdul Rehman Antulay case14, SCC p. 272)
“86. (9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has been
infringed the charges or the conviction, as the case may be,
shall be quashed. But this is  not  the  only  course  open. The
nature of the offence and other circumstances in a given case
14 (1992) 1 SCC 225
15 (1980) 1 SCC 81
16 (1980) 1 SCC 93
17 (1986) 4 SCC 481
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may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to
make such other appropriate order—including an order to
conclude the trial within a fixed time where the trial is not
concluded or reducing the sentence where the trial has
concluded—as may be deemed just and equitable in the
circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit
for trial of offences. Any such rule is bound to be qualified
one. Such rule cannot also be evolved merely to shift the burden
of proving justification on to the shoulders  of  the  prosecution.
In every case of  complaint  of  denial  of  right  to  speedy trial,
it is primarily for the prosecution to justify and explain the  delay.
At the same time, it is the duty of the court to weigh all the
circumstances of a given case before pronouncing upon the
complaint. The Supreme Court of USA too has repeatedly
refused to fix any such outer time-limit in spite of the Sixth
Amendment. Nor do we think that not fixing any such outer
limit ineffectuates the guarantee of right to speedy trial.”
25. In Kartar Singh v. State of Punjab18, it was stated by this
Court that no doubt liberty of a citizen must be zealously
safeguarded by the courts; nonetheless the courts while dispensing
justice should keep in mind not only the liberty of the accused but
also the interest of the victim and their
near and dear and above
all the collective interest of the community and the safety of the
nation so that the public may not lose faith in the system of  judicial
administration and indulge in private retribution. In that case, the
Court was dealing with a case under the TADA Act.”
It was thus held that the impugned judgment was required to be
reversed and the matter was to be remanded for fresh trial. C.K. Prasad,
J. concurred with H.L. Dattu, J. and accepted that the Judgments of
conviction and sentence be set aside as the appellant-accused was not
given assistance of a lawyer to defend himself during trial. However, in
his view, the case was not required to be remanded for fresh trial and
the benefit of complete acquittal be given to the appellant-accused.
18 (1994) 3 SCC 569
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On this difference of opinion, the matter went to a Bench of three
Judges which accepted the view taken by H.L. Dattu, J. and directed
de novo trial. It was observed3:-
“15. Section 304 of the Code mandates legal aid to the accused
at State’s expense in a trial before the Court of Session where 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.
…   …       …
38. In Best Bakery case19, the Court also made the following
observations: (SCC p. 187, paras 38-40)
“38.  A criminal trial is a judicial examination of the issues in
the case and its purpose is to arrive at a judgment on an issue
as to a fact or relevant facts which may lead to the discovery
of the fact issue and obtain proof of such facts at which the
prosecution and the accused have arrived by their pleadings;
the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict
the guilty and protect the innocent, the trial should be a search
for the truth and not about over technicalities, and must be
conducted under such rules as will protect the innocent, and
punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the
totality of the evidence, oral and circumstantial, and not by
an isolated scrutiny.
39. Failure  to  accord  fair  hearing  either  to the accused or
the prosecution violates
even minimum standards of due
process of law. It is inherent in the concept of due process of
law, that condemnation should be rendered only after the trial
in which the hearing is a real one, not sham or a mere farce
and pretence. Since the fair hearing requires an opportunity to
preserve  the  process,  it  may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial.
40. The  fair  trial  for  a  criminal offence consists not only in
technical observance of the frame and forms of law, but also
19 Zahira Habibulla H. Sheikh vs. State of Gujarat – (2004) 4 SCC 158
ANOKHILAL v. STATE OF MADHYA PRADESH
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in recognition and just application  of  its principles in substance,
to find out the truth and prevent miscarriage of justice.”
The Bench emphasised that: (Best Bakery case19, SCC p. 192,
para 52)
“52. Whether  a  retrial  under  Section 386  of the Code or
taking up of additional evidence under Section 391 of  the  Code
[in a given case] is the proper procedure will depend on the
facts and circumstances of each case for which  no  straitjacket
formula of universal and  invariable application can be
formulated.”
40. “Speedy trial” and “fair trial” to a person accused of a
crime are integral part of Article 21. There is, however,
qualitative difference between the right to speedy trial and  the
accused’s  right of fair trial. Unlike the accused’s right of fair
trial, deprivation of the right to speedy trial does not per se
prejudice the accused in defending himself. The right to speedy
trial is in its very nature relative. It depends upon diverse
circumstances. Each case of delay in conclusion of a criminal
trial has to be seen in the facts and circumstances of such
case.  Mere  lapse  of  several years  since  the  commencement
of prosecution by itself  may not justify the discontinuance of
prosecution or dismissal  of  indictment.  The  factors concerning
the accused’s right to speedy trial have to be weighed vis-à-
vis the impact of the crime on society and the confidence of
the people in judicial system. Speedy
trial secures rights to an
accused but it does not preclude the rights of public justice.
The nature and gravity of crime, persons involved, social impact
and societal needs must be weighed along with the right of  the
accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right
of the accused in the facts and circumstances of the case and
exigencies of situation tilts the balance in his favour, the
prosecution may be brought to an end. These principles must
apply as well when the appeal court is confronted with the
question whether or not retrial of an accused should be
ordered.”
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11. In Ankush Maruti Shinde and others vs. State of
Maharashtra20 the  High Court had upheld the conviction and death
sentence imposed upon accused nos. 1, 2 and 4 while accused nos. 3, 5
and 6 were sentenced to imprisonment for life. The appeals were preferred
by accused nos. 1, 2 and 4 against their conviction and sentence while
Criminal Appeal Nos. 881-882 of 2009 were preferred by the State
seeking enhancement of sentence of life imprisonment to death sentence
in respect of accused nos. 3, 5 and 6. In the Appeals preferred by the
State, notice was served upon accused nos. 3, 5 and 6 only on 6.12.2008.
However, even before service of  such  notice,  the  hearing  in  respect
of all the appeals had begun on 04.12.2008. On 10.12.2008 the learned
counsel who was appearing for the accused nos. 1, 2 and 4 was appointed
as Amicus Curiae to represent accused nos. 3, 5 and 6. The hearing
was concluded the same day and the judgment was reserved. By its
decision dated 30.04.2009 this Court allowed  the Appeals preferred by
the State and imposed death sentence upon accused nos. 3, 5 and 6
while confirming the death sentence in respect of accused nos. 1, 2 and
4. All six accused were thus sentenced to death.
Thereafter, Review Petition (Crl.) Nos. 34-35 of 2010 were
preferred by accused nos. 1, 2 and 4 while Review Petition (Crl.)Nos.18-
19 of 2011 were preferred by accused nos. 3, 5 and 6. While allowing
Review Petitions by its Order dated 31.10.201821,  this
Court observed:-
“From the above narration of facts, it is evident that Accused
Nos. 3, 5 and 6 had no opportunity to be heard by the Bench,
before the appeals filed by the State of Maharashtra for
enhancement of sentence were decided. They have been
deprived of an opportunity of engaging counsel and of urging such
submissions as they may have been advised to urge in defence
to the appeals filed by the State for enhancement.”
This Court, therefore, recalled the Judgment and order dated
30.04.2009 and the Criminal Appeals were restored to the file of this
Court to be considered on merits.
Subsequently, a Bench of three Judges by its decision dated
05.03.201922 acquitted  the  concerned  accused  of  the  charges  levelled
20 (2009) 6 SCC 667
21  Ambadas Laxman Shinde and others  vs.  State of Maharashtra - (2018) 14 SCALE
730 = (2018) 18 SCC 788
22 2019 SCC Online SC 317  - Ankush Maruti Shinde and others  vs.  State of Maharashtra
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]
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against them. This Court also dismissed the appeals preferred by the
State for enhancement of sentence qua accused Nos.3, 5 and 6.
12. In  Imtiyaz Ramzan Khan vs. State of Maharashtra23 it
was observed by this Court:-
“4. We now come to the common feature between these two
matters. Mr. Shikhil Suri, learned advocate appeared for the
accused in both the matters. On previous dates letters were
circulated by the learned advocate appearing for the petitioners
that the matters be adjourned so as to enable the counsel to make
arrangements for conducting video conferencing with the accused
concerned. The letter further stated that this exercise was made
mandatory as per the directions of the Supreme Court Legal
Services Committee. This Court readily  agreed24 and adjourned
the  matters. On the adjourned date, we enquired from Mr. Shikhil
Suri, learned advocate whether he could successfully get in touch
with the accused concerned. According to the learned advocate
he could not get in touch with the accused in the first matter but
could speak with his sister whereas in the second matter he could
have video conference with the accused.
5. In our view such a direction on part of the Supreme Court
Legal Services Committee is quite commendable and
praiseworthy. Very often we see that the learned advocates who
appear in matters entrusted by the Supreme Court Legal Services
Committee, do not have the advantage of having had a
dialogue
with either the accused or those who are in the know of the details
about the case. This at times seriously hampers the efforts on
part of the learned advocates. All such attempts to facilitate
dialogue between the counsel and his client would further the
cause of justice and make legal aid meaningful. We, therefore,
direct all Legal Services Authorities/Committees in every State
to extend similar such facility in every criminal case wherever the
accused is lodged in jail. They shall extend the facility of video
conferencing between the counsel on one hand and the accused
or anybody in the know of the matter on the other, so that the
cause of justice is well served.”
23 (2018) 9 SCC 160
24 (2018) 9 SCC 163 – Imtiyaz Ramzan Khan  vs.  State of Maharashtra
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13. The following principles, therefore,  emerge  from  the  decisions
referred to hereinbove:-
a)
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.
b)
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
case19 (as quoted in the decision in Mohd. Hussain3)
emphasizes that the object of criminal trial is to search for
the truth and the trial is not about over technicalities and
must  be conducted  in  such  manner as will protect the
innocent and punish the guilty.
c)
Even before insertion of Article 39-A in the Constitution,
the decision of this Court in Bashira2 put the matter beyond
any doubt and held that the time granted to the Amicus
Curiae in that matter to prepare   for the defense 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.
d)
The
portion  quoted  in  Bashira2 from the judgment of the
Madras High Court authored 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 defense
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.
e)
In Bashira2 as well as in Ambadas21, making substantial
progress in the matter on the very day after a counsel was
ANOKHILAL v. STATE OF MADHYA PRADESH
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engaged as  Amicus Curiae, was not accepted by this Court
as compliance of ‘sufficient opportunity’ to the counsel.
14. In the present case, the Amicus Curiae, was appointed on
19.02.2013, and on the same date, the counsel was called upon to defend
the accused at the stage of framing of charges. One can say with certainty
that the Amicus Curiae did not have sufficient time to go through even
the basic documents, nor the advantage of any discussion or interaction
with the accused, and time to reflect over the matter. Thus, even before
the Amicus Curiae could come to grips of the matter, the  charges were
framed.
The concerned provisions viz. Sections 227 and 228 of the Code
contemplate framing of charge upon consideration of the record of the
case and the documents submitted therewith, and after ‘hearing the
submissions of the accused and the prosecution in that behalf’. If
the hearing for the purposes of these provisions is to be meaningful, and
not just a routine affair, the right under the said provisions stood denied
to the appellant.
15. In our considered view, the Trial Court on its own, ought to
have adjourned the matter for some time so that the Amicus Curiae
could have had the advantage of sufficient time to prepare the matter.
The approach adopted by the Trial Court, in our view, may have expedited
the conduct of trial, but did not further the cause of justice. Not only
were the charges framed the same  day
as stated  above, but the trial
itself was concluded within a fortnight thereafter. In the process, the
assistance that the appellant was entitled to in the form of legal aid,
could not be real and meaningful.
16. There are other issues which also arise in the matter namely
that the examination of  13  witnesses  within  seven  days,  the  examination
of the  accused  under  the  provisions  of  the  Section  313  of  the  Code
even before the complete evidence was led by the prosecution, and not
waiting for the FSL and DNA reports in the present case. DNA report
definitely formed the foundation of discussion by the High Court.
However, the record shows that the DNA report was received almost
at the fag end of the matter, and after such receipt, though technically an
opportunity was given to the accused, the issue on the point was concluded
the very same day. The concluding paragraphs of the judgment of the
Trial Court show that  the  entire  trial  was  completed  in  less  than  one
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month  with  the assistance of the prosecution as well as the defense,
but, such expeditious disposal definitely left glaring gaps.
17. In V.K. Sasikala vs. State Represented by Superintendent
of Police25 a caution was expressed by this Court as under:-
“23.4  While the anxiety to bring the trial to its earliest  conclusion
has to be shared it is fundamental that in the process none of the
well- entrenched principles of law that have been laboriously built
by  illuminating  judicial precedents are sacrificed or compromised.
In no circumstance, can the cause of justice be made to suffer,
though, undoubtedly, it is highly desirable that the finality of any
trial is achieved in the quickest possible time.”
18. Expeditious disposal is undoubtedly required in criminal  matters
and that would naturally be part of guarantee of fair trial. However, the
attempts to expedite the process should not be at the expense of the
basic elements of fairness and the opportunity to the  accused, on which
postulates, the entire criminal administration of justice is founded. In the
pursuit  for expeditious disposal, the cause of justice must never be
allowed to suffer or be sacrificed. What is paramount is the cause of
justice and keeping the basic ingredients which secure that as a core
idea and  ideal, the process may be expedited, but fast tracking of  process
must never ever result in burying the cause of justice.
19. In the circumstances, going by the principles laid down
in
Bashira2, we accept the submission made by Mr. Luthra, the learned
Amicus Curiae and hold that the learned counsel appointed through
Legal Services to represent the appellant in the present case ought to
have been afforded sufficient opportunity to study the matter and the
infraction in that behalf resulted in miscarriage of justice. In light of the
conclusion that we have arrived at, there is no necessity to consider
other submissions advanced by Mr. Luthra, the learned Amicus Curiae.
All that we can say by way of caution is that in matters where
death sentence could be one of the alternative punishment, the courts
must be completely vigilant and see that full opportunity at every stage is
afforded to the accused.
20.  We, therefore, have no hesitation in setting aside the judgments
of conviction and orders of sentence passed by the Trial Court and the
25 (2012) 9 SCC 771
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High Court against the appellant and directing de novo consideration. It
shall be open to the learned counsel representing the appellant in the
Trial Court to make any submissions touching upon the issues  (i) whether
the charges framed by the Trial Court are required to be amended or
not; (ii) whether any of the prosecution witnesses need to be recalled
for further cross-examination; and (iii) whether any expert evidence is
required to be led in response to the FSL report and DNA report. The
matter shall, thereafter, be considered on the basis of available material
on record in accordance with law.
21. It must be stated that the discussion by this Court was purely
confined to the issue whether, while granting free Legal Aid, the appellant
was extended real and meaningful assistance or not. The discussion in
the matter shall not be taken to be a reflection on the merits of the
matter, which shall be considered and gone into, uninfluenced by any
observations made by us.
22. Before we part, we must lay down certain norms so that the
infirmities that we have noticed in the present matter are not repeated:-
i) 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.
ii) 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.
iii) 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 days’ time may normally be considered
to be appropriate and adequate.
iv) 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 concerned accused. Such interactions may prove to
be helpful as was noticed in Imtiyaz Ramzan Khan23.
23. In the end, we express our appreciation and gratitude for the
assistance given by Mr. Luthra, the learned Amicus Curiae and request
him to assist this Court for deciding other issues as noted in the Orders

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dated 12.12.2018 and 10.12.2019 passed by this Court, for which purpose
these matters be listed on 18.02.2020 before the appropriate Bench.
24. With the aforesaid observations, the substantive appeals stand
disposed of, but the matter be listed on 18.02.2020 as directed.
Nidhi Jain
Appeals disposed of with directions.
ANOKHILAL v. STATE OF MADHYA PRADESH
[UDAY UMESH LALIT, J.]