{"id":48572,"date":"1968-04-19T00:00:00","date_gmt":"1968-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bashira-vs-state-of-u-p-on-19-april-1968"},"modified":"2015-04-23T19:45:01","modified_gmt":"2015-04-23T14:15:01","slug":"bashira-vs-state-of-u-p-on-19-april-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bashira-vs-state-of-u-p-on-19-april-1968","title":{"rendered":"Bashira vs State Of U.P on 19 April, 1968"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bashira vs State Of U.P on 19 April, 1968<\/div>\n
Equivalent citations: 1968 AIR 1313, \t\t 1968 SCR (1)\t 32<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nBASHIRA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\n19\/04\/1968\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nSIKRI, S.M.\nSHELAT, J.M.\n\nCITATION:\n 1968 AIR 1313\t\t  1968 SCR  (1)\t 32\n CITATOR INFO :\n F\t    1971 SC 260\t (14)\n MV\t    1973 SC 786\t (22)\n F\t    1977 SC 740\t (10)\n\n\nACT:\nConstitution  of  India, 1950, Art.  21--Accused  tried\t for\noffence of murder--criminal Procedure Code (Act 5 of  1898),\ns.  340\t and  Rules made by the High Court,  r.\t 37  Counsel\nappointed by Sessions Court for defending accused--Not given\nenough time to prepare defence--If violative of Article.\n\n\n\nHEADNOTE:\nThe  appellant was charged with the offence of murder  under\ns.  302\t IPC.  Just before the beginning of the\t trial,\t the\nSessions  Court appointed, an advocate as amicus  curiae  to\nrepresent   the\t  appellant.   After  the   examination\t  of\nwitnesses,  on\tthe  day on which the case  was\t posted\t for\nargument,  appellant's counsel prayed for the recall of\t the\nsole eyewitness for further cross-examination as the witness\ncould  not be cross-examined effectively.   The\t application\nwas  rejected, and after hearing arguments, the\t court\tcon-\nvicted\tthe  appellant\tand sentenced  him  to\tdeath.\t The\nconviction and sentence were confirmed by the High Court.\nin  appeal to this Court, it was contended that the  belated\nappointment of counsel\tdeprived the appellant\tof  adequate\nlegal  aid  and\t that be would be deprived of  his  life  in\nbreach of his fundamental right under Art. 21.\nHELD:The right on which the accused based his claim is based\non r.37 of the General Rules (Criminal) 1957, promulgated by\nthe High Court in   exercise of its powers under Art. 227 of\nthe Constitution and s. 554 of the Criminal Procedure  Code.\nTherefore,  the rule is a statutory rule and forms  part  of\nthe procedure for trial of criminal cases.  Its intention is\nthat  no  accused person should remain\tunrepresented  by  a\nlawyer if he is being tried on a charge for which a  capital\nsentence  can  be awarded.  Notwithstanding the use  of\t the\nword 'may'. considering the purpose of the rule, it must  be\ninterpreted  as\t laying down a mandatory  direction  to\t the\nCourt  to  engage  a counsel if\t the  conditions  laid\tdown\ntherein\t  are  satisfied.   As\tthe  rule  supplements\t the\nprovision  contained  in s. 304 Cr.  P.C. under\t which\tsuch\nappointment  of\t counsel  is not mandatory,  it\t is  not  in\nconflict  with\tthe section.  The last clause  of  the\trule\nrequires that the counsel appointed under the Rules shall be\nfurnished  with\t necessary papers free of cost\tand  allowed\nsufficient  time to prepare for the defence.  [35D-E;  36-E;\n3B, D, E-F]\nIn  the\t present case, when the counsel was  appointed\tjust\nbefore the trial started, there was a failure to comply with\nthe  requirements of the rule.\tEven though counsel did\t not\nask  for time it was the duty of the court, under the  rule,\nto  grant sufficient time to counsel, and,  when  sufficient\ntime  was  not granted to counsel to  prepare  the  defence,\nprejudice  must necessarily be inferred and the\t trial\theld\nvitiated.   Further, as the word 'law' in Art.\t21  includes\nsubordinate  legislation promulgated by delegated  authority\nthere is a breach of Art. 21, and therefore the question  of\nprejudice does not arise. [38C; 40B, G-H; 41B]\nMaqbool\t Hussain  v.  State of Bombay,<\/a>\t[1953]\tS.C.R.\t730,\nPandir M. S.  M.  Sharma v. Shri Sri Krishna  Sinha,<\/a>  [1950]\nSupp.\t1  S.C.R. 806 and Makhan Singh v. State\t of  Punjab,<\/a>\n[1964] 4 S.C.R. 797, followed.\n33\nA. K. Gopalan v. State of Madras,<\/a> [1950] S.C.R. 88, 111-112;\nJanardan Reddy v. State of Hyderabad,<\/a> [1951] S.C.R. 344\t and\nTara Singh v. The State, [1951] S.C.R. 729, explained.\nRe:Alla\t Nageswara  Rao,  A.I.R. 1957 A.P.  505\t and  Mathai\nThommen v. State A.I.R. 1959 Kerala 241, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 25  of
\n1968.\n<\/p>\n
Appeal\tby special leave from the judgment and order,  dated
\nJuly 20, 1967 of the Allahabad High Court in Cr.  A. No. 469
\nof 1967 and Ref.  No. 21 of 1967.\n<\/p>\n
K. K. Luthra, for the appellant.\n<\/p>\n
O. P. Rana, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nBhargava,  J.  The appellant Bashira was  convicted  by\t the
\nCourt of Session for having committed the murder of his\t own
\nwife Saira alias Mahobawali with an axe inside his house  at
\nabout  11 a.m. on 22nd August, 1966.  The First\t Information
\nReport\tof this incident was lodged on the same day at\t5-15
\np.m.  by Naziran, the mother of the appellant, who  went  to
\nthe  Police  Station  accompanied  by  the  Chaukidar.\t The
\ninvestigation  of the case began on 23rd August, 1966.\t The
\nappellant surrendered himself in Court on 24th August, 1966.
\nOn  15th September, 1966, the Challan was presented  in\t the
\nCourt\tof  the\t Magistrate  who  recorded  some   evidence,
\nproceeded  in  accordance with section 207A of the  Code  of
\nCriminal  Procedure,  and  then,  on  28th  November,  1966,
\ncommitted  the appellant for trial to the Court\t of  Session
\nfor  the  offence  of  committing the  murder  of  his\twife
\npunishable under section 302 of the Indian Penal Code.\t The
\nTemporary  Civil  & Sessions Judge of  Hamirpur\t fixed\t28th
\nFebruary, 1967 as the date for starting the actual trial  of
\nthe  case.   On\t that day, before beginning  the  trial,  he
\nappointed one Sri Sirish Chandra, Advocate, as amicus curiae
\ncounsel\t to represent the appellant.  He amended the  charge
\nwhich was read out to the appellant who pleaded not  guilty.
\nThereafter,  on\t that very day, evidence  of  two  principal
\nprosecution  witnesses was recorded.  The first witness\t was
\nSmt.   Naziran, the mother of the appellant, who had  lodged
\nthe F.I.R., and the second witness was Khan Bahadur, son  of
\nthe appellant, who was the sole eye-witness of the  incident
\nof  murder.   The  remaining evidence was  recorded  on\t 1st
\nMarch,\t1967, on which date the appellant was also  examined
\nunder  section 342, Cr.\t P.C. The appellant stated  that  be
\nwould not produce any defence.\tA joint application of coun-
\nsel  for  parties was presented on that day  requesting\t the
\ncourt  to make a local inspection and 12th March,  1967\t was
\nfixed for local inspection.  The Temporary Sessions Judge in
\nthat order
\n34<\/span>
\ndirected  that a suitable conveyance should be arranged\t for
\nhim as he had no conveyance of his own.\t On 8th March, 1967,
\nthe Public Prosecutor gave it in writing that no  conveyance
\ncould  be  arranged and, therefore, prayed  that  the  local
\ninspection  may\t be  cancelled.\t  The  Judge  cancelled\t the
\ndirection  for local inspection and then fixed\t10th  March,
\n1967  for  arguments.\tOn that\t day,  Sri  Shukla,  counsel
\nrepresenting the appellant presented an application  praying
\nfor  the recall of P. W. 2 Khan Bahadur for  further  cross-
\nexamination on the ground that there had been an omission in
\ndrawing his attention to a contradiction with his  statement
\nrecorded  in  the Court of the\tCommitting  Magistrate.\t  He
\nadded that there were many other things to be seen and\tmade
\nthis  request  in the interest of justice.  The\t Judge\theld
\nthat  the  ground for recall that the witness could  not  be
\ncross-examined\teffectively would hardly justify the  recall
\nof  the\t witness for further crossexamination.\t He  further
\nexpressed his opinion that, even if the statement attributed
\nto  the witness as having been made by him in the  Court  of
\nthe Committing Magistrate is brought on the record, it would
\nnot  help  the appellant to any appreciable  degree  in\t his
\ndefence.   On these grounds, the application  was  rejected.
\nArguments  were then heard on the same day and judgment\t was
\ndelivered on 13th March, 1967, convicting the appellant\t for
\nthe offence of murder under s. 302, I.P.c and sentencing him
\nto  death.   The  appellant appealed in the  High  Court  of
\nAllahabad  and\tthe  Tempy.   Sessions\tJudge  also  made  a
\nreference  for confirmation of the sentence of\tdeath.\t The
\nHigh Court dismissed the appeal, accepted the reference\t and
\nconfirmed the sentence of death.  The appellant has now come
\nup to this Court against that judgment of the High Court  in
\nappeal by special leave.\n<\/p>\n
In  this case, the principal ground urged on behalf of-\t the
\nappellant  raises  an important question  of  law.   Learned
\ncounsel\t  appearing   for  the\tappellant   emphasised\t the
\ncircumstance that the amicus curiae counsel to represent the
\nappellant  was appointed by the Sessions Judge on  the\t28th
\nFebruary,  1967, just when the trial was about to begin\t -nd
\nthis  belated  appointment  of\tthe  counsel  deprived\t the
\nappellant  of adequate legal aid, so that he was  unable  to
\ndefend\thimself properly.  It was urged that  the  procedure
\nadopted\t by  the Court was not in accordance  with  law,  so
\nthat, if the sentence of death is carried out, the appellant
\nwill  be deprived of his life in breach of  his\t fundamental
\nright  under Article 21 of the Constitution which lays\tdown
\nthat  no  person shall be deprived of his life\tor  personal
\nliberty, except according to procedure established by law.
\nThe main procedure for trial of a criminal case is laid down
\nin  the Code of Criminal Procedure and, in this case,  there
\nis no grievance that the procedure laid down therein was not
\nfollowed  by the Court of Session.  The grievance,  however,
\nis that there
\n35<\/span>
\nare provisions supplementing the procedure laid down by\t the
\nCriminal Procedure Code and the course adopted by the  Court
\nof  Session  was  in breach of\tthese  supplementary  rules.
\nReference  was made to Rule 37 in Chapter V of\tthe  General
\nRules  (Criminals),  1957 (hereinafter referred to  as\t“the
\nRules”)\t promulgated  by  the High  Court  of  Allahabad  in
\nexercise of its powers under Article 227 of the Constitution
\nand  section 554 of the Code of Criminal  Procedure.   These
\nRules were published under Notification No.  241\/A\/Vlll-a-1,
\ndated September 4, 1956 in the Supplement to the  Government
\nGazette\t of  Uttar Pradesh, dated 3rd November,\t 1956.\t The
\nnotification  clearly  mentions the powers under  which\t the
\nHigh  Court promulgated the Rules and also contains a  clear
\nrecitation  that  the Rules were being\tpublished  with\t the
\nprevious  approval of the Government of Uttar  Pradesh.\t  We
\nhave  mentioned these details, because at one stage  it\t was
\nurged by learned counsel appearing for the respondent  State
\nGovernment that R. 37 of the Rules had no statutory force at
\nall.   The  notification in the Gazette makes  it  perfectly
\nclear that these Rules were all framed by the High Court  in
\nexercise  of the powers conferred on it by the\tConstitution
\nor  by\tthe  Code  of Criminal\tProcedure.  The\t Rules\tare,
\ntherefore,  clearly statutory Rules and,as such,they form  a
\npart of the procedure for trial of criminate cases by courts
\nsubordinate  to the High Court of Allahabad, in addition  to
\nthe procedure laid down by the Code of Criminal Procedure.\n<\/p>\n
\t      Rule  37 of the Rules is as follows  “In\tany.\n<\/p>\n
\t      case   which comes before a Court of  Session,
\n\t      the court may engage counsel to defend the ac-
\n\t      cused person if-<\/p>\n
\t      (a)  the\tcharge against him is  such  that  a
\n\t      capital sentence\t   is possible, and\n<\/p>\n
\t      (b) it appears that he has not engaged counsel
\n\t      and is not possessed of sufficient means to do
\n\t      so.\n<\/p>\n
\t      To  enable the Sessions Court to arrive  at  a
\n\t      decision\tas regards the second  condition  in
\n\t      the   preceding  paragraph,   the\t  committing
\n\t      Magistrate shall in such cases make  enquiries
\n\t      from the accused at the time of commitment and
\n\t      after  making such other enquiries as  may  be
\n\t      necessary,  report  within  a  month  of\t the
\n\t      commitment  order to the, court to  which\t the
\n\t      commitment  is  made whether  the\t accused  is
\n\t      possessed\t  of  sufficient  means\t to   engage
\n\t      counsel.\t Each  case must be decided  on\t its
\n\t      merits  and  no  hard  and  fast\trule  as  to
\n\t      sufficiency  of means should be applied.\t The
\n\t      Sessions\tCourt in making its  decision  shall
\n\t      not  be bound by the report of the  committing
\n\t      magistrate.\n<\/p>\n
36<\/span><\/p>\n
.lm15
\nCounsel\t appointed under this rule shall be  furnished\twith
\nthe  necessary\tpapers free of cost and\t allowed  sufficient
\ntime to prepare for the defence.”\n<\/p>\n
On  the\t basis of the language used in\tthis  Rule,  learned
\ncounsel\t for  the State urged that this Rule should  not  be
\nheld  to be mandatory, but only a Rule enabling a  Court  to
\nengage\ta counsel to defend a person accused of\t an  offence
\npunishable with capital sentence.  It is true that the\tword
\nused is “may” in this Rule, but, in our opinion, the purpose
\nof the Rule will be completely defeated if we were to accept
\nthis  submission.  It appears that the word “may”  was\tused
\nonly because there are certain conditions laid down, on\t the
\nexistence  of  which depends the appointment of\t the  amicus
\ncuriae counsel to represent the accused.  The principal pre-
\ncondition  is  that the accused has himself  not  engaged  a
\ncounsel\t and is not possessed of sufficient means to do\t so.
\nThe  Rule  adds\t that  no  hard and  fast  rule\t as  to\t the
\nsufficiency of means should be applied when the court has to
\ndecide\twhether an amicus curiae counsel should be  provided
\nat the cost of the Government, and each case must be decided
\non its merits.\tIt was because of these conditions that\t the
\nword  “may” was used in the Rule; but the intention  of\t the
\nRule is perfectly clear that no accused person should remain
\ntotally unrepresented by a lawyer, if he is being tried on a
\ncharge\tfor  which  a  capital\tsentence  can  be   awarded.
\nConsidering the purpose of this Rule, we hold that the\tword
\n“may”  in  this Rule must be interpreted as  laying  down  a
\nmandatory direction to the Court to engage a counsel, if the
\nconditions laid down in the Rule are otherwise satisfied.
\nIn  this connection, learned counsel for the State drew\t our
\nattention  to  two  decisions  of  this\t Court\treported  in
\nJanardan  Reddy\t and Others v. The State  of  Hyderabad\t and
\nOthers\tand<\/a>  connected\tAppeals(1), and Tara  Singh  v.\t The
\nState(2).   In the first of these two cases, this Court\t was
\nconsidering  the  effect  of section 271  of  the  Hyderabad
\nCriminal  Procedure  Code  read along  with  the  Rules\t and
\nCircular  Orders issued by the Hyderabad High Court and,  in
\nthat  connection, held that, though s. 271 of the  Hyderabad
\nCriminal  Procedure Code corresponds to section 340  of\t the
\nIndian Criminal Procedure Code, these provisions did not Jay
\ndown  as a rule of law that in every capital sentence  case,
\nwhere the accused is unrepresented, the trial should be held
\nto be vitiated.\t In the second case, this Court examined the
\nscope  of the right conferred on an accused by S. 340(1)  of
\nthe  Code  of Criminal Procedure and held that it  does\t not
\nextend to a right in an accused person to be provided with a
\nlawyer\tby the State or by the Police or by the\t Magistrate.
\nThe Privilege conferred by this provision only gave a  right
\nto an accused to be represented by a counsel if he wanted to
\nengage one himself or to
\n(1) [1951] S.C.R. 344.\n<\/p>\n
(2) [1951] S.C.R. 729.\n<\/p>\n
37<\/span><\/p>\n
get his relations to engage one for him.  The only duty cast
\non the Magistrate is to afford him the necessary opportunity
\nfor  this purpose.  It appears to us that neither  of  these
\ntwo  cases is applicable to the case before us, because,  in
\nthose  cases,  no question arose of taking  into  account  a
\nprovision  laying down procedure for trial of cases such  as
\nis contained in r. 37 of the Rules.  These cases, no  doubt,
\nshow  that  s. 340, Cr.\t P.C. by itself, does not  cast\t any
\nduty  on a court to provide a counsel at State expense\teven
\nwhen the offence triable is punishable with death; but\tthat
\nis  imaterial, because the right, on which the appellant  is
\nbasing\this claim, is sought to be justified under r. 37  of
\nthe Rules.\n<\/p>\n
Learned\t counsel  for  the  State,  in\tview  of  these\t two
\ndecisions, urged before us that we should hold that r. 37 of
\nthe  Rules was void as contravening the principle laid\tdown
\nby s. 340, Cr.\tP.C., explained in the two cases referred to
\nabove.\tWe are unable to appreciate this argument.   Section
\n340,  Cr.   P.C.,  does not prohibit the  appointment  of  a
\ncounsel\t by the Court at State expense, though it  does\t not
\nprescribe such an appointment as a mandatory direction to be
\ncarried\t out  by  the  Court.  Rule 37\tof  the\t Rules\tonly
\nsupplements  the provision contained in s. 340,\t Cr.   P.C.,
\nand  is, therefore, in no way in conflict with S.  340,\t Cr.
\nP.C.,  and  it cannot be held that it is void  on  any\tsuch
\nground.\n<\/p>\n
We  have  already quoted above r. 37 of the Rules  in  full.
\nThe  grievance\ton behalf of the appellant is  not  that  no
\ncounsel at all was engaged to represent him in the Court  of
\nSession;  but non-compliance with the Rule is urged  on\t the
\nground\tthan  there was breach of the last  clause  of\tthat
\nRule, That clause requires that the counsel appointed  under
\nthe  Rules shall be furnished with necessary papers free  of
\ncost and allowed sufficient time to prepare for the defence.
\nIn this case, the facts mentioned by us earlier clearly show
\nthat  Sri Shukla was appointed counsel for the appellant  on
\n28th  February, 1967, which was the date fixed for  starting
\nthe  trial,  and the trial was, in fact, started  after\t his
\nappointment on that very day.  Thus, sufficient time was not
\nallowed to him to prepare for the defence of the  appellant.
\nAt one stage, information was attempted to be given to\tthis
\nCourt  on  behalf of the State Government on  the  basis  of
\nentries in the register maintained for appointment of amicus
\ncuriae counsel that, in fact, Sri Shukla had been  appointed
\nto  represent  the appellant on 18th  February\t1967.\tThat
\nregister  was  sent  for  by us and  it\t appears  that\tthis
\nposition  was  taken  on behalf\t of  the  State\t Government,
\nbecause,  at  one place in that register, the  date  showing
\nappointment  of Sri Shukla as counsel for the appellant\t was
\nso  entered that it could be read as 18th February  1967  as
\nwell  as  28th February 1967.  There  were,  however,  other
\nentries\t in  the register which clarified the  position\t and
\nindicated that even that date must be read as 28th  February
\n1967 and learned coun-\n<\/p>\n
38<\/span><\/p>\n
sel  for  the  State conceded that the\tappointment  of\t the
\namicus\tcuriae counsel was, in fact, made on 28th  February,
\n1967.\n<\/p>\n
There  is  nothing  on the record to show  that,  after\t his
\nappointment  as\t counsel for the appellant, Sri\t Shukla\t was
\ngiven  sufficient time to prepare the defence.\t The  order-
\nsheet  maintained by the .,Judge seems to indicate that,  as
\nsoon  as the counsel was appointed, the charge was read\t out
\nto  the\t accused  and, after his  plea\thad  been  recorded,
\nexamination of witnesses began.\t The counsel, of course, did
\nhis best to cross-examine the witnesses to the extent it was
\npossible  for him to do in the very short time available  to
\nhim.  It is true that the record, also does not contain\t any
\nnote  that  the counsel asked for more time to\tprepare\t the
\ndefence, but that, in ;our opinion, is immaterial.  The Rule
\ncasts a duty on the court itself to grant sufficient time to
\nthe  counsel  for this -purpose and the record\tshould\tshow
\nthat  the Rule was complied with by granting him time  which
\nthe   court   considered  sufficient   in   the\t  particular
\ncircumstances  of the case.  In this case, the record  seems
\nto show that the trial was proceeded with immediately  after
\nappointing  the amicus curiae counsel and that, in fact,  if
\nany  time  at  all was granted, it was\tnominal.   In  these
\ncircumstances, it must be held that there was no  compliance
\nwith the ,requirements of this Rule.\n<\/p>\n
In this connection, we may refer to the decisions of two  of
\n,the  High Courts where a similar situation arose.   In\t Re:
\nAlla Nageswara Rao, Petitioner(1) reference was made to Rule
\n228 of the Madras Criminal Rules of Practice which. provided
\nfor engaging a pleader at the cost of the State to defend an
\naccused person in a case where a sentence of death could  be
\npassed.\t It was held by Subba Rao, Chief Justice as he\tthen
\nwas, speaking for the Bench, that :\n<\/p>\n
\t      ” a mere formal compliance with this Rule will
\n\t      not carry out the object underlying the  rule.
\n\t      A\t sufficient  time  should be  given  to\t the
\n\t      advocate\tengaged on behalf of the accused  to
\n\t      prepare  his case and conduct it on behalf  of
\n\t      his  client.  We are satisfied that  the\ttime
\n\t      given    was   insufficient   and,   in\t the
\n\t      circumstances,  no real opportunity was  given
\n\t      to the accused to defend himself.”\n<\/p><\/blockquote>\n
This view was expressed on the basis of the fact found\tthat
\nthe  advocate  had been engaged for the\t accused  two  hours
\nprior  to  the trial.  In Mathai Thommen  v.  State(2),\t the
\nKerala High Court was dealing with a Sessions trial in which
\nthe counsel was engaged to defend the accused on 2nd August,
\n1958, when the trig was posted to begin on 4th August, 1958,
\nshowing that
\n(1) A.I.R. 1957 A.P. 505.\n<\/p>\n
(2) A.I.R. 1959 Kerala 241.\n<\/p>\n
39<\/span><\/p>\n
barely\tmore  than a day was allowed to the counsel  to\t get
\nprepared   and\t obtain\t instructions  from   the   accused.
\nCommenting  on the procedure adopted by the Sessions  Court,
\nthe High Court finally expressed its opinion by saying :\n<\/p>\n
\t      “Practices  like this would reduce to a  farce
\n\t      the  engagement  of counsel under rule  21  of
\n\t      the, Criminal Rules of Practice which has been
\n\t      made  fOr the purpose of effectively  carrying
\n\t      out the duty cast on courts of law to see that
\n\t      no one is deprived of life and liberty without
\n\t      a\t  fair\tand  reasonable\t opportunity   being
\n\t      afforded\tto  hm to prove his  innocence.\t  We
\n\t      consider\tthat  in  cases\t like  this  counsel
\n\t      should be engaged at least some 10 to 15\tdays
\n\t      before the trial and should also be  furnished
\n\t      with copies of the records.”\n<\/p><\/blockquote>\n
In our opinion, no hard and fast rule can be laid down as to
\nthe  time which must elapse between the appointment  of\t the
\ncounsel\t and  the  beginning  of the  trial;  but,  on\ttile
\ncircumstances of each case, the Court of Session must ensure
\nthat  the  time\t granted to the\t counsel  is  sufficient  to
\nprepare\t for  the defence.  In the present  case,  when\t the
\ncounsel\t was appointed just before the trial started, it  is
\nclear that there was failure to comply with the requirements
\nof the rule of procedure in this behalf.\n<\/p>\n
Learned counsel for the State urged before us that we should
\nnot  hold  that the award of, the sentence of death  to\t the
\nappellant in this case is in breach of the fundamental right
\nconferred  by  Art.  21 of  the\t Constitution,\tbecause,  he
\nsubmitted,  r.\t37  of\tthe Rules was  not  enacted  by\t any
\nlegislature and, consequently, it should not be held to be a
\npart of the procedure established by law.In this connection,
\nhe  relied  on the view expressed by Kania, C.J., in  A.  K.
\nGopalan v. The State of Madras<\/a>(1), where lie held
\n\t      “No  extrinsic aid is needed to interpret\t the
\n\t      words of article 21, which in my opinion,\t are
\n\t      not   ambiguous.Normally\tread,  and   without
\n\t      thinking of other Constitutions,the expression
\n\t      ‘procedure   prescribed\tby   law’must\tmean
\n\t      procedure prescribed by the law of the State.”
\nThis  Interpretation was given in order to exclude from\t the
\nscope  of  Art. 21 rules of natural justice  which  are\t not
\nincorporated  in any law. Proceeding further, he dealt\twith
\nthe  language  of Art.31 where the expression  used  is\t “by
\nauthority of law” and held
\n\t      “It is obvious that in that clause ‘law’\tmust
\n\t      mean enacted law”.\n<\/p>\n
(1) [1950] S.C.R. 88,111-12.\n<\/p>\n
40<\/span><\/p>\n
We do not think that, in expressing these views, the learned
\nChief Justice intended to explain the full scope of the word
\n“law” as used in Art. 21.  What he was concerned with was to
\nexamine\t whether  rules\t of natural justice  could  also  be
\ncovered\t by that word in this article and he held that\tthis
\nwill  not  be  justified.  In later  cases,  the  Court\t has
\nclarified  the position and has held that the word “law”  in
\nArt. 21 includes subordinate legislation not enacted by\t the
\nlegislature,  but promulgated by the delegated authority  in
\nexercise of its statutory powers.  Thus, in Maqbool  Hussain
\nv.  The\t State of Bombay & Connected  Cases<\/a>(1),\t the  Punjab
\nCommunist  Detenus Rules, 1950 framed by the  Government  of
\nPunjab\tunder section 4(a) of the Preventive Detention\tAct,
\n1950  were held to be covered by the word “law”.  In  Pandit
\nM.   S.\t M. Sharma v. Shri Sri Krishna Sinha and  Others,<\/a>(2)
\nRules made by the Legislature under Arts. 118(1) and  208(1)
\nand  the  privileges of each House under  Arts.\t 105(3)\t and
\n194(3)\twere  held  to\tbe  law\t justifying  deprivation  of
\npersonal  liberty  guaranteed by Art. 21.  In  the  case  of
\nMakhan Singh v. State of Punjab & Connected Appeals<\/a>(3),\t the
\nDefence of India Rules made by the Central Government  under
\nsection 3 of the Defence of India Ordinance, 1962 were\theld
\nto  be “law” for purposes of Article 21.  Thus,\t this  Court
\nhas  clearly laid it down that Rules made by  a\t subordinate
\nlegislative authority in exercise of its delegated power  of
\nlegislation granted by the Constitution or a Statute enacted
\nby  the\t legislature  are “law” for  purposes  of  Art.\t 21,
\nthough, of course, it is always open to the person  affected
\nto  challenge the validity of those Rules.  In\tthe  present
\ncase. we have already held that r. 37 of the Rules has\tbeen
\nframed\tin  exercise of the powers of the High\tCourt  under
\nArt. 227 of the Constitution and section 554 of the Code  of
\nCriminal   Procedure,  and  is\ta  valid  Rule.\t  In   these
\ncircumstances,\tthe conviction of the appellant in  a  trial
\nheld in violation of that Rule and the award of sentence  of
\ndeath  will result in the deprivation of his life in  breach
\nof the procedure established by law.\n<\/p>\n
Learned counsel also urged that we should not hold the\tcon-
\nviction\t and sentence to be void when it is not\t shown\tthat
\nthere  was any prejudice to the appellant by the failure  of
\nthe  court to observe the procedure laid down by  the  Rule.
\nIn  our opinion, in such a case, the question  of  prejudice
\ndoes  not  arise  when a citizen is  deprived  of  his\tlife
\nwithout complying with the procedure prescribed by law.\t  We
\nmay,  however,\tadd that, in this case, the  facts  indicate
\nthat there was, in fact, prejudice to the accused caused  by
\nthe  non-compliance  with the requirement of r.\t 37  of\t the
\nRules.\t The  two  principal  witnesses,  Naziran  and\tKhan
\nBahadur, were examined immediately after the appointment of
\n(1) [1953] S.C.R. 730.\t  (2) [1959] Supp.  1 S.C.R. 806.
\n(3) [1964] 4 S.C.R. 797.\n<\/p>\n
41<\/span><\/p>\n
amicus\tcuriae\tcounsel\t and the  application  presented  on
\nbehalf of the accused on 10th March, 1967, to which we\thave
\nreferred  above clearly shows that the counsel felt that  he
\nhad  not been able to cross-examine at least the  sole\teye-
\nwitness Khan Bahadur properly.\tThat is why he presented  an
\napplication for recall of that witness.\t It is obvious that,
\nin rejecting that application, the Sessions Judge failed  to
\nnotice\tthat the counsel had been appointed on the very\t day
\nwhen  that witness was examined and sufficient time had\t not
\nbeen  granted  to him to prepare the defence.  In  fact,  we
\nfeel that, in such cases, if sufficient time is not  granted
\nto   the   counsel  to\tprepare\t defence,   prejudice\tmust
\nnecessarily be inferred and the trial will be vitiated.
\nAs  a consequence, we set aside the conviction and  sentence
\nof the appellant.  Since we are holding that the  conviction
\nis void because of an error in the. procedure adopted at the
\ntrial,\twe direct that the appellant shall be  tried  afresh
\nfor  this  charge after complying with the  requirements  of
\nlaw,  so that the case is remanded to the Court\t of  Session
\nfor this purpose.\n<\/p>\n
V.P.S.\t\tAppeal allowed and retrial order.\n<\/p>\n
L10Sup.C. I. \/68 4
\n42<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bashira vs State Of U.P on 19 April, 1968 Equivalent citations: 1968 AIR 1313, 1968 SCR (1) 32 Author: V Bhargava Bench: Bhargava, Vishishtha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-48572","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBashira vs State Of U.P on 19 April, 1968 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bashira-vs-state-of-u-p-on-19-april-1968\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bashira vs State Of U.P on 19 April, 1968 - 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