PETITIONER: BASHIRA Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 19/04/1968 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SIKRI, S.M. SHELAT, J.M. CITATION: 1968 AIR 1313 1968 SCR (1) 32 CITATOR INFO : F 1971 SC 260 (14) MV 1973 SC 786 (22) F 1977 SC 740 (10) ACT: Constitution of India, 1950, Art. 21--Accused tried for offence of murder--criminal Procedure Code (Act 5 of 1898), s. 340 and Rules made by the High Court, r. 37 Counsel appointed by Sessions Court for defending accused--Not given enough time to prepare defence--If violative of Article. HEADNOTE: The appellant was charged with the offence of murder under s. 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 Art. 21. HELD:The right on which the accused based his claim is based on r.37 of the General Rules (Criminal) 1957, promulgated by the High Court in exercise of its powers under Art. 227 of the Constitution and s. 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 s. 304 Cr. P.C. 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 Art. 21 includes subordinate legislation promulgated by delegated authority there is a breach of Art. 21, and therefore the question of prejudice does not arise. [38C; 40B, G-H; 41B] Maqbool Hussain v. State of Bombay, [1953] S.C.R. 730, Pandir M. S. M. Sharma v. Shri Sri Krishna Sinha, [1950] Supp. 1 S.C.R. 806 and Makhan Singh v. State of Punjab, [1964] 4 S.C.R. 797, followed. 33 A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, 111-112; Janardan Reddy v. State of Hyderabad, [1951] S.C.R. 344 and Tara Singh v. The State, [1951] S.C.R. 729, explained. Re:Alla Nageswara Rao, A.I.R. 1957 A.P. 505 and Mathai Thommen v. State A.I.R. 1959 Kerala 241, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal 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 a.m. on 22nd August, 1966. The First Information
Report of this incident was lodged on the same day at 5-15
p.m. 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 F.I.R., 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. P.C. 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 s. 302, I.P.c 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. 241/A/Vlll-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 and,as such,they 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 v. The State of Hyderabad and
Others and connected Appeals(1), and Tara Singh v. The
State(2). 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 s. 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 S. 340(1) 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) [1951] S.C.R. 344.
(2) [1951] S.C.R. 729.
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 s. 340, Cr. P.C. 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 s. 340, Cr. P.C., explained in the two cases referred to
above. We are unable to appreciate this argument. Section
340, Cr. P.C., 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 s. 340, Cr. P.C.,
and is, therefore, in no way in conflict with S. 340, Cr.
P.C., 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, Petitioner(1) 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 v. State(2), 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) A.I.R. 1957 A.P. 505.
(2) A.I.R. 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 Art. 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, C.J., in A. K.
Gopalan v. The State of Madras(1), 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 Constitutions,the 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 Art. 21 rules of natural justice which are not
incorporated in any law. Proceeding further, he dealt with
the language of Art.31 where the expression used is “by
authority of law” and held
“It is obvious that in that clause ‘law’ must
mean enacted law”.
(1) [1950] S.C.R. 88,111-12.
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 Art. 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
Art. 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
v. The State of Bombay & Connected Cases(1), the Punjab
Communist Detenus Rules, 1950 framed by the Government of
Punjab under section 4(a) of the Preventive Detention Act,
1950 were held to be covered by the word “law”. In Pandit
M. S. M. Sharma v. Shri Sri Krishna Sinha and Others,(2)
Rules made by the Legislature under Arts. 118(1) and 208(1)
and the privileges of each House under Arts. 105(3) and
194(3) were held to be law justifying deprivation of
personal liberty guaranteed by Art. 21. In the case of
Makhan Singh v. State of Punjab & Connected Appeals(3), 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 Art. 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
Art. 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) [1953] S.C.R. 730. (2) [1959] Supp. 1 S.C.R. 806.
(3) [1964] 4 S.C.R. 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.
V.P.S. Appeal allowed and retrial order.
L10Sup.C. I. /68 4
42