Allahabad High Court
Badrinarayan Dubey @ Bablu vs State Of U.P. Thru. The Prin. Secy. ... on 6 November, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:69751
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 482 No. - 8584 of 2025
Badrinarayan Dubey @ Bablu
.....Applicant(s)
Versus
State Of U.P. Thru. The Prin. Secy. (Home) Lko.
.....Opposite Party(s)
Counsel for Applicant(s)
:
Harpreet Singh, Mo.Jeeshan Ali Ahmad
Counsel for Opposite Party(s)
:
G.A.
Court No. - 14
HON'BLE RAJEEV SINGH, J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Mr Harpreet Singh, learned counsel for the applicant and Mr Piyush Kumar Singh, learned A.G.A for the State.
3. Present petition has been filed with the following prayers:-
"quashing the impugned order dated 19.09.2025 passed by the learned Additional Sessions Judge, Court No.17, Lucknow in Sessions Trial No.564 of 2018, whereby the application filed by the applicant under Section 311 Cr.P.C. for recall of prosecution witnesses PW-1 to PW-5 has been rejected.
Further be pleased to direct the learned trial court to allow the recall of PW-1 to PW-5 for the purpose of cross examination in the interest of justice and fair trial."
4. Learned counsel for the applicant has submitted that the FIR in question was lodged by the brother-in-law of the applicant with the allegation that the applicant killed his wife and after investigation charge sheet was submitted by the Investigating Officer under section 302 IPC and the case was committed to the court of the sessions and trial was proceeded. He has further submitted that as the applicant was not in a position to engage a competent counsel for conducting his trial and this fact was informed to the trial court and thereafter Mr Mohd Shahid was appointed as Amicus Curiae for conducting his case vide order dated 10.09.2018.
5. Learned counsel for the applicant has submitted that the applicant was confined in jail and in the meantime examination-in-chief of the witnesses were conducted before the trial court but the amicus curiae failed to cross examine them. He has also submitted that as per the provision of Section 304 Cr.P.C., it is obligatory on the part of trial court to ensure providing a proper free legal aid on the state expenses to the accused. He has further submitted that Article 39A of the Constitution of India also provides equal justice and free legal aid in case any accused is not in a position to afford the expenses for his case. He has also submitted that it is bounden duty of the trial court to ensure fair trial as in the present case the offence is punishable for a life sentence. Therefore, in case the amicus curiae failed to cross examine the witnesses, necessary orders were to be passed for deputing the competent amicus curiae to pursue the case of applicant. He has further submitted that the applicant was enlarged on bail on 25.09.2024, then he engaged a counsel and thereafter application was given under Section 311 Cr.P.C. for recalling the PW-1 to 5 for their cross examination. He also relied upon the decision of Hon'ble Supreme Court in the case of Ashok vs. State of U.P., (Criminal Appeal No.771 of 2024) and requested that in case opportunity to cross examination of witnesses is not given then the applicant will suffer irreparable loss and there is no possibility of substantial justice. In such circumstances, the order dated 19.09.2025 passed by the Additional Sessions Judge, Court No.17, Lucknow is liable to set aside.
6. Learned A.G.A. opposed the prayer of the applicant and has submitted that there is no illegality in the order passed by learned Additional Sessions Judge but he does not dispute this fact that the amicus curiae has failed to discharge his duties by way of cross examining the witnesses in offence under Section 302 IPC. He also does not dispute the principle laid down by Hon'ble Supreme Court in the aforesaid case as well as in the case of Anokhi Lal dealt in the said judgement.
7. Considering the submissions of learned counsel for the parties and going through the contents of the impugned order dated 19.09.2025 as well as other relevant material, it appears that the applicant is charged for killing of his wife. As he was not in a position to engage his counsel, therefore the amicus curiae was appointed by the trial court and when he was in jail, five witnesses were examined but amicus curiae failed to cross examine them. The trial court failed to discharge its duty that in case amicus curiae failed to cross examine the witnesses, then new and competent amicus curiae was to be appointed. As after released on bail, the applicant engaged a new counsel to cross examine the witnesses and also moved an application under Section 311 Cr.P.C. for recalling PW-1 to 5 for cross examination in the interest of substantial justice. The Hon'ble Supreme Court in the aforesaid case has also observed that the accused is having right to free legal aid in the form of competent counsel. Paras 19 to 23 of the aforesaid judgments are as under:-
"19. After having perused the record of the case, we found a very disturbing feature. It is about the failure of the State to provide timely legal aid to the appellant. The other issue is about the quality of legal aid. Apart from provisions of Article 21 and Article 39A of the Constitution of India, the law on the issue of the right to legal aid has been evolved by this Court through its landmark decisions. This Court's first well-known decision is in the case of Hussainara Khatoon (IV) v. Home Secy., State of Bihar. In Paragraph 7, this Court held thus:
"7. We may also refer to Article 39-A the fundamental constitutional which reads as follows: directive "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 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 if accused the person circumstances of the case and the to an needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the undertrial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such undertrial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated February 12, 1979. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today."
(emphasis added) The second decision is in the case of M.H. Hoskot v. State of Maharashtra. In paragraphs 14 and 25 of the decision, this Court held thus:
"14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said: [Justice and Reform, Earl Johnson, Jr. p. 11] "What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?" "
(emphasis added) "25. If a to prisoner sentenced imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142, read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual "for doing complete justice". This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is inevitable that this is a State's duty and not Government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court."
(emphasis added) This issue was again dealt with by a Bench of three Judges in the case of Anokhilal v. State of M.P.5. In this decision, this Court revisited the law on this aspect. In paragraph 11, this Court relied upon the decision in the case of Hussainara Khatoon (IV)3. In paragraph 20, this Court summarised the principles laid down from time to time.
Paragraph 20 reads thus:
"20. The following principles, therefore, emerge from the decisions referred to hereinabove:
20.1. Article 39-A inserted by the 42nd Amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A. 20.2. It has been well accepted that right to free legal services is an essential ingredient of "reasonable, fair and just" procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case [Zahira Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999] (as quoted in the decision in Mohd. Hussain [Mohd. Hussain v. State (NCT of Delhi), (2012) 9 SCC 408: (2012) 3 SCC (Cri) 1139]) emphasises that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty.
20.3. Even before insertion of Article 39-A in the Constitution, the decision of this Court in Bashira Bashira v. State of U.P., (1969) 1 SCR 32: AIR 1968 SC 1313: 1968 Cri LJ 1495] put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defence was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law.
20.4. The portion quoted in Bashira [Bashira v. State of U.P., (1969) 1 SCR 32: AIR 1968 SC 1313: 1968 Cri LJ 1495) from the judgment of the Andhra Pradesh High Court authored [Alla Nageswara Rao, In re, 1954 SCC OnLine AP 115: AIR 1957 AP 505] by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defence would not carry out the object underlying the rule. It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare.
20.5. In Bashira Bashira v. State of U.P., (1969) 1 SCR 32: AIR 1968 SC 1313: 1968 Cri LJ 1495] as well as in Ambadas [Ambadas Shinde v. State of Maharashtra, (2018) 18 SCC 788: (2019) 3 SCC (Cri) 452: (2018) 14 Scale 730], making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance with "sufficient opportunity" to the counsel."
(emphasis added) In paragraph 31, norms were laid down by this Court, which read thus:
"31. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:
31.1. In all cases where there is a possibility of life sentence or death sentence, learned advocates who have put in minimum of 10 years' practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused.
31.2. In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.
31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard-and-fast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.
31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160: (2018) 3 SCC (Cri) 721]." (emphasis added)
20. Thus, the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution. Even under Section 303 of the CrPC, every accused has a right to be defended by a pleader of his choice. Section 304 provides for the grant of legal aid to an accused free of costs. When an accused has either not engaged an advocate or does not have sufficient means to engage an advocate, it is the trial court's duty to inform the accused of his right to obtain free legal aid, which is a right covered by Article 21 of the Constitution of India. Sub-Section (1) of Section 304 reads thus: "304. Legal aid to accused at State expense in certain cases.-(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2).........................
(3)..........................
(emphasis added) Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'BNSS') are the Sections which correspond to Sections 303 and 304 of the CrPC. Thus, under Section 304 of the CrPC, it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused.
21. Now, we come back to the facts of the case. From the proceedings of the Trial Court, it appears that when the charges were framed on 8th September 2010, and when the plea was recorded, the appellant was not represented by any advocate. Proceedings of 26th February 2011 record that though three witnesses of the prosecution were present, the appellant was not represented by any advocate. Therefore, assurance of the appellant has been recorded that he would call his counsel on the next date. On 11th May 2011, the examination-in-chief of PW-1 was recorded. In the proceedings, the court recorded that the appellant had not engaged any advocate on that day, and he was not desirous of taking legal aid. However, on 8th June 2011, an advocate was appointed to espouse his cause. We find that on 20th July 2012, 4th October 2012, 1st November 2012, 7th November 2012, 9th November 2012 and 23rd November 2012, the advocate appointed as amicus curiae for the appellant was absent. Applications were required to be made by him to recall certain witnesses as the cross-examination was closed due to his absence. Thus, the evidence of more than one prosecution witness was recorded in the absence of the legal aid advocate. On 7th November 2012, another advocate was appointed to espouse the appellant's cause. We find that a third advocate conducted the cross-examination of PW-8.
22. At the stage of framing the charge, the appellant was not represented by an advocate. From 8th June 2011, the appellant never declined legal aid. We are surprised to note that the examination-in-chief of PW-1 was allowed to be recorded without giving legal aid counsel to the appellant, who was not represented by an advocate. If the examination-in-chief of a prosecution witness is recorded in the absence of the advocate for the accused, a very valuable right of objecting to the questions asked in examination-in-chief is taken away. The accused is also deprived of the right to object to leading questions. It will not be appropriate to comment on the capabilities of the two legal aid lawyers appointed in this case as they are not parties before us. But suffice it to say that the cross-examination of the witnesses was not up to the mark. Some of the crucial questions that normally would have been put in the cross-examination have not been asked.
CONCLUDING PART
23. Our conclusions and directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers are as follows:
a. It is the duty of the Court to ensure that proper legal aid is provided to an accused;
b. When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully;
c. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused; d. It is the duty of the Public Prosecutor to assist the Trial Court in recording the statement of the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;
e. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions; f. At all material stages, including the stage of framing the charge, recording the evidence, etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused;
g. As held in the case of Anokhilals, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of the law and has an experience of conducting trials on the criminal side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials;
h. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed;
i. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice;
j. In the cases where the offences are of a very serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance;
k. The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21;
1. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent enough to conduct the trial efficiently, the rights of the accused will be violated."
8. As the amicus curiae appointed by the trial court for conducting the case of applicant has failed to cross examine the witnesses, therefore, this Court is of the view that learned trial court has wrongly rejected the application under Section 311 Cr.P.C. moved by the applicant.
9. Accordingly, the application is allowed and the order dated 19.09.2025 passed by the Additional Sessions Judge, Court No.17, Lucknow is set aside and the trial court is directed to recall the PW-1 to 5 for giving the opportunity to cross examination and also ensure that trial in question is concluded expeditiously.
(Rajeev Singh,J.) November 6, 2025 Renu/-