Allahabad High Court
Manglu vs State Of U.P. on 21 December, 2018
Bench: Prashant Kumar, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ( RESERVED) Case :- CRIMINAL APPEAL No. - 1460 of 2003 Appellant :- Manglu Respondent :- State Of U.P. Counsel for Appellant :- Yuga Raj Singh,Amicus Curiae,Vishnu Swaroop Srivastava Counsel for Respondent :- Govt.Advocate Hon'ble Prashant Kumar,J.
Hon'ble Rajeev Singh,J.
( Per Prashant Kumar, J. )
1. This appeal is directed against the judgment of conviction and order of sentence dated 30.08.2003 passed by Additional Sessions Judge, court no. 7, Lucknow in Sessions Trial No. 538 of 2003 corresponding to case crime no. 35 of 2003 under Section 302 of the Indian Penal Code, P.S.- Mali, District Lucknow, whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and was sentenced to undero imprisonment for life and also pay fine of Rs. 10,000/- with default stipulation.
2. The case of prosecution, in short, is that the informant and his father were sleeping inside the house, as in the preceding night they saw Nautanki, played in the village. It is further stated that at that time, the mother of informant was sitting on the door of the house. It is stated that accused persons namely Sonu and Manglu (present appellant) were sleeping in the Madha of Devi Prasad, whereas brother of informant- Sadanand (deceased) was talking with the accused persons. It is stated that suddenly the informant and his father woke up after hearing the alarm raised by his mother and came out of the house. It is stated that he saw that appellant- Manglu was holding a blood-stained Gadansa in his hand, whereas co-accused Sonu was holding the head of Sadanand (deceased) trying to flee away. It is stated that the informant and his father caught hold Manglu, who was armed with a Gadansa, whereas Sonu had fled away throwing the head of Sadanand in the way and jumped in Gomti river. It is further stated that later on the informant along with other villagers took the appellant- Manglu to police station, where first information report of the incident was registered.
3. It is stated that during the said Nautanki, Sonu had asked the deceased- Sadanand for calling one Shobha but she did not come and conveyed through Sadanand that she will assault the co-accused-Sonu with sleeper (chappal). It is stated that later on co-accused Sonu verified the aforesaid fact from Shobha, who denied to utter the aforesaid facts. It is stated that because of the aforesaid reason, Sonu along with his friend Manglu (present appellant) had killed Sadanand by chopping his head with a Gadansa.
4. On the basis of first information report, case crime no. 35 of 2003 instituted under Section 302 of the Indian Penal Code and appellants took up investigation. During the investigation, the police prepared inquest report and sent the dead body of the deceased for post-mortem examination along with police papers. It further appears that after completing the investigation, Police submitted charge-sheet only against the appellant- Manglu under Section 302 of the Indian Penal Code because in course of investigation, it came to light that the co-accused Sonu had drawn in the river.
5. It appears that thereafter the learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the court of Sessions as the offence under Section 302 of the Indian Penal Code is exclusively triable by the court of Sessions. The learned Additional Sessions Judge framed charges against the appellant under Section 302 of the Indian Penal Code. Thereafter, the prosecution had examined altogether seven witnesses namely P.W. 1- Babulal, P.W. 2- Sohan, P.W. 3- Sukkha, P.W. 4- Lochan, P.W. 5- Brijesh Chandra Dixit, who was Head Muharrim, P.W. 6- Shyam Narayan Singh, the Investigating Officer and P.W. 7- Dr. Rabindra Kumar Gupta, who conducted post-mortem examination on the dead body. The prosecution had also brought on the record the documentary evidence vide Exhibit ka 1 to 22. After close of the case of prosecution, the statement of appellant- Manglu was recorded under Section 313 of Code of Criminal Procedure in which his defense is of total denial. He had further taken a defense that he has been falsely implicated by the informant for grabbing his land. It appears that the defense had also examined one witness namely D.W. 1- Ganga Ram.
6. After considering the evidence available on record and hearing the counsel for the parties, the learned court below convicted and sentenced the appellant by the impugned judgment, against which the present appeal has been filed.
7. Heard Sri Vishnu Swaroop Srivastava, appointed as amicus curiae on behalf of the appellant, as the appellant was not represented by any lawyer. We have also heard learned Additional Government Advocate on behalf of the State.
8. While assailing the judgment of the learned trial court, learned amicus curiae submitted that from perusal of record, it is clear that at the time of hearing the case on the point of charge, appellant has not been represented by any lawyer. He further submits that even P.W. 1 was examined without appointing any lawyer, for defending the appellant. It is stated that the aforesaid act of learned trial court is violative of Sections 303 & 304 of the Code of Criminal Procedure read with Rule 37 of General Rules (Criminal), 1977 framed by Allahabad High Court. It is submitted that the aforesaid act of omission on the part of learned trial court is violative of Article 21 of the Constitution of India. Thus, on that ground itself, the trial conducted by the learned court below is liable to be vitiated. Consequently, the impugned judgment of conviction and order of sentence is also liable to be set aside.
9. On the other hand, learned Additional Government Advocate submits that in the instant case, the learned court below had appointed a lawyer as amicus curiae for defending the appellant. The said amicus curiae had not filed any application for further cross-examination of P.W. 1. Accordingly, no prejudice have been caused to the appellant. It is also submitted that from perusal of order passed by the court below. It appears that while framing the charge against the appellant, the learned court below heard the submission raised on behalf of the appellant as well as the Government Advocate. Under such circumstance, there is no illegality in framing of charge. Hence, the procedure prescribed for a fair and just trial had been adopted in the instant case, therefore, the question of violation of Article 21 of the Constitution of India, does not arise.
10. It is worth mentioning that apart from the aforesaid point, the learned amicus curiae had also argued the appeal on merit and raised several points in support of the appeal, which was also replied by counsel for the State. But since the above points goes to the root of the case and has invalidating effect on the conviction and sentence recorded against the appellant, therefore, we are proceeding to consider the aforesaid points at the first instance.
11. Before dealing with the facts relating to the first point raised by learned amicus curiae, we think it appropriate to set out the legal provisions as well as the various judgments of Hon'ble the Supreme Court on this point. Article 21 of the Constitution of India runs as follows:-
"No person shall be deprived of his life or personal liberty except according to a procedure established by law."
12. Article 22 (1) of the Constitution of India is also relevant in this respect and hence the same is quoted hereinafter for ready reference:-
"Article 22 in The Constitution Of India 1949
22. Protection against arrest and detention in certain cases (1)No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
13. Article 39-A of the Constitution of India is also relevant and thus, the same is also quoted hereinbelow for ready reference:-
"39A. 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."
14. Section 304 of the Code of Criminal Procedure deals with legal aid to an accused, who is not represented by any lawyer and have no means to engage any lawyer. The aforesaid Section 304 of the Code of Criminal Procedure runs as follows:-
" Section 304 in The Code Of Criminal Procedure, 1973
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) The High Court may, with the previous approval of the State Government, make rules providing for-
(a) the mode of selecting pleaders for defence under sub- section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session."
15. In this regard, Rule 37 of General Rules (Criminal), 1977 framed by Allahabad High Court is also relevant, thus, the said rule is also quoted hereinbelow:-
"37. When counsel should be engaged for accused.
In any case which comes before a Court of Session, the court may engage counsel to defend the accused 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 for 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 case 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 insufficiency of means should be applied. The Sessions Court in making its decision shall not be bound by the report of the committing magistrate.
Counsel appointed under this rule shall be furnished with the necessary papers free of cost and allowed sufficient time to prepare for the defence."
16. It is not out of place to mention that Rule 37 of the General Rule (Criminal) 1957 framed by Hon'ble Allahabad High Court is pari materia the same of the present Rule 37 of General Rule (Criminal) 1977.
17. In Bashira vs. State of U.P. reported in AIR 1968 SC 1313, Hon'ble the Supreme Court has held that Rule 37 of the General Rule (Criminal) of the Allahabad High Court 1957 is mandatory and any violation of the same is violative of Article 21 of the Constitution of India, because the trial has not been conducted in accordance with the procedure established by law. Accordingly, Hon'ble the Supreme Court ordered that in such situation, the trial will be vitiated. Again the aforesaid point was considered by a three Judge Bench of Hon'ble the Supreme Court in the case of Madhav Hayawadanrao Hoskot vs. State of Maharashtra reported in 1978 SCC (Cri) 468, and held at paragraph no. 14 that:-
"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 or 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(1):
"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 ?"
18. In the case of Hussainara Khatoon and Ors. vs. Home Secretary, State of Bihar reported in AIR 1979 SC 1369, Hon'ble Supreme Court has held that free legal services to indigent and poor accused is implicit in Article 21 of the Constitution of India. The following observation of Hon'ble Supreme Court at para- 6 of the aforesaid judgment is quoted hereinbelow:-
"6. .............It is now well settled, as a result of the decision of this Court in Maneka Gandhi v. Union of India (1) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be 'reasonable, fair and just'. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable fair and just. It is an essential ingredient of reasonable, fair and just procedure to a prisonel who is to seek his liberation through the court's process that he should have legal services available to him. This Court pointed out in M.H. Hoskot v. State of Maharashtra (2).:"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 poor and the needy is an essential element of any 'reasonable, fair and just' procedure. It is not necessary to quote authorative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied 'reasonable, fair and just' procedure."
19. In the case of Khatri and Ors. v. State of Bihar reported in AIR 1981 SC 928, Hon'ble the Supreme Court has held that an accused is entitled to free legal services when he was first produced before the Magistrate and it is the duty of the Magistrate and Sessions Judge to inform every accused, who appears before them about their aforesaid legal right. Paras 4 & 5 of the aforesaid judgment is quoted hereinbelow:-
"4. That takes us to one other important issue which arises in this case. It is clear from the particulars supplied by the State from the records of the various judicial magistrates dealing with the blinded prisoners from time to time that, neither at the time when the blinded prisoners were produced for the first time before the judicial magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners. The records of the judicial magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked for it nor did the judicial magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it. The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail. It is difficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatonn's case. This Court has pointed out in Hussainara Khatoon's case (supra) which was decided as far back as 9th March, 1979 that the right to free legal services is 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 and the State is under a constitutional 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. It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding through-out the territory of India. Mr. K. G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficulty to do so owing to financial constraints. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigenous and whatever is necessary for his purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem v. Malcolm. "The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson vs. Bishop, 404 F. Supp. 2d, 571: "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations." Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.
5. But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would 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. Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Unfortunately, the judicial magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the magistrates and Session Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State."
20. In the cases of Suk Das and Another v. Union Territory of Arunachal Pradesh [AIR 1986 SC 991], Tyron Nazareth v. State of Goa [1994 Supp. (3) SCC 321] and Mohd. Hussain alias Zulfikar Ali v. State (Government of NCT of Delhi) [(2012) 2 SCC 584], Hon'ble the Supreme Court had reiterated the aforesaid principle and held that if the adequate legal aid has not been provided to the accused during the trial, the same is violative of Article 21 of the Constitution of India. Thus, the conviction and sentence of such accused cannot be sustained.
21. From perusal of the aforesaid provisions of law as well as the law laid down by Hon'ble the Supreme Court in the above judgments, now it is clear that right to legal aid to indigent and poor person is implicit in the right of guarantee as provided under Article 21 of the Constitution of India. An accused is entitled to avail the aforesaid right of free legal aid at the first instance that is at the time of his production before the Magistrate and/or Sessions Judge. The Magistrate and Sessions Judge are legally bound to inform the accused about the said right and it is imperative for them to engage a lawyer on behalf of the accused on the first day, at the State cost. Rule 37 of the General Rule (Criminal), 1977 framed by Allahabad High Court makes it imperative upon the Sessions Judge to engage a counsel on behalf of the accused persons on the first date on which the case has come before it, if the charge against him is such that a capital sentence is possible. It is also clear that if there is any violation of aforesaid law and the judgments, then the same will vitiate the trial as the same is not in accordance with the procedure established by the law.
22. Keeping in view the aforesaid law, we are proceeding to consider whether in the instant case, there is any violation of the above law and judgments. Admittedly, in the present case, charge-sheet has been submitted under Section 302 of the IPC in which one of the sentence is capital sentence. Thus, it is the legal duty of Additional Sessions Judge to inform the appellant-Manglu about his right to be represented by a lawyer on the State cost, if he himself is not able to engage a lawyer. From perusal of the order-sheet, we find that for the first time, the case was placed before the learned Trial court on 01.07.2003, on which date, the learned trial court had framed charge against the appellant by passing the following order:-
"Today, this sessions trial is fixed for framing charge against the accused.
Accused- Manglu is present in the court in Judicial Custody with his learned counsel Sri None , Advocate. Learned A.D.G.C. (Criminal) is also present on behalf of the State.
Learned A.D.G.C. (Criminal) opened the prosecution case and stated the evidence by which he proposes to prove the guilt of the accused.
I have also heard submissions of the learned counsel for the accused and perused the record, including F.I.R., post-mortem report, inquest report, charge-sheet, case-diary etc. After hearing the learned counsel for the State on the point of framing charge against the accused and perusal of the record, I am of the opinion that a prima facie case for framing charge under Section 302 I.P.C. is made out against the accused. Hence, I proceed to frame the charge accordingly."
23. From perusal of the paragraph no. 2 of the said order passed by learned Additional Sessions Judge, court no. 7, Lucknow, we find that on 01.07.2003, the appellant- Manglu was produced from the jail custody and he is not represented by any lawyer. However, at paragraph no. 4, learned Additional Sessions Judge had mentioned that he heard the submission of learned counsel for the accused. Again, from perusal of paragraph no. 5 of the said order, it appears that the charge has been framed after hearing counsel for the State and not the parties. This also shows that on the date of framing of charge, the appellant- Manglu was not represented by any lawyer. Therefore, we find that statement of paragraph no. 4 is incorrect and wrong.
24. It is not out of place to mention that the under Section 227 of the Code of Criminal Procedure, the accused persons has a right to be released by filing an application for discharge and for that purpose, the accused persons has a right to be heard by learned Additional Sessions Judge before framing the charge. In this background of the case, the aforesaid valuable right of the accused has been denied in this case. We further find that by doing so, the learned Additional Sessions Judge had violated the mandatory provisions of Rule 37 of General Rule (Criminal), 1977, which makes it imperative for the learned Additional Sessions Judge to engage a lawyer for defending the accused if the charge against him is such that a capital sentence is possible. As noticed above, in this case charge-sheet has been submitted in this case under Section 302 of the Indian Penal Code in which capital sentence is possible.
25. From perusal of order-sheet, we find that P.W. 1 was examined and cross-examined on 10.07.2003. On that date, no Advocate was appointed to defend the appellant and because of that the appellant has been compelled to cross-examine the witnesses himself. It further appears from the order-sheet that on 10.07.2003, the examination in chief of P.W. 2 was recorded and the case has been deferred. It appears from the margin of the order-sheet that on 10.07.2003, the appellant had informed the court that he is very poor and could not afford any counsel but in spite of that P.W. 1 was examined and discharged, without appointing any lawyer to defend the accused, at the State cost. Under such circumstance, we have no hesitation in holding that the trial conducted in the instant case is not fair and reasonable, Hence the same is not in accordance with the procedure established by law. Accordingly, we hold that the trial of the appellant- Manglu is violative of Article 21 of the Constitution of India, hence, the same will vitiate.
26. After holding that the trial has not been conducted as per the procedure established by law, the same is not fair, reasonable and just. Hence, the trial court vitiate the next question arose is as to what order should be passed by this Court. It is submitted by learned amicus curiae that the appellant is in jail custody since the year 2003 thus, he has already spent more than fourteen years in jail, hence, no fruitful purpose will be served in remanding the case for holding de novo trial.
27. On the other hand, learned Additional Government Advocate submits that the allegation against the appellant is commission of murder, which comes within the category of heinous crime and if the appellant will be acquitted from the charge, without facing the trial, the people at large, will loose hope in legal system and in that view of the matter, the interest of society will be overlooked.
28. After hearing the submission of the parties, we have gone through the record of the case.
29. Admittedly, in the instant case, the charge-sheet has been submitted against the appellant under Section 302 of the Indian Penal Code for which one of the sentence is capital sentence. It further appears that the offence under Section 302 of the Indian Penal Code is a heinous crime having its impact on the society at large. It is true that the appellant is in jail custody since the year 2003 but only because the appellant has spent more than fourteen years in jail custody, the same is not sufficient to acquit him from the charges under Section 302 of the Indian Penal Code. In a similar circumstance, a three-Judge Bench of Hon'ble Supreme Court in the case of Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi reported in 2012(9) SCC 408 has held in para 43 that:-
"43. Insofar as present case is concerned, it has been concurrently held by the two Judges who heard the criminal appeal that the appellant was denied due process of law and the trial held against him was contrary to the procedure prescribed under the provisions of the Code since he was denied right of representation by counsel in the trial. The Judges differed on the course to be followed after holding that the trial against the appellant was flawed. We have to consider now, whether the matter requires to be remanded for a de novo trial in the facts and the circumstances of the present case. The incident is of 1997. It occurred in a public transport bus when that bus was carrying passengers and stopped at a bus stand. The moment the bus stopped an explosion took place inside the bus that ultimately resulted in death of four persons and injury to twenty- four persons. The nature of the incident and the circumstances in which it occurred speak volume about the very grave nature of offence. As a matter of fact, the appellant has been charged for the offences under Section 302/307 IPC and Section 3 and, in the alternative, Section 4(b) of ES Act. It is true that the appellant has been in jail since 09.03.1998 and it is more than 14 years since he was arrested and he has passed through mental agony of death sentence and the retrial at this distance of time shall prolong the culmination of the criminal case but the question is whether these factors are sufficient for appellant's acquittal and dismissal of indictment. We think not. It cannot be ignored that the offences with which the appellant has been charged are of very serious nature and if the prosecution succeeds and the appellant is convicted under Section 302 IPC on retrial, the sentence could be death or life imprisonment. Section 302 IPC authorises the court to punish the offender of murder with death or life imprisonment. Gravity of the offences and the criminality with which the appellant is charged are important factors that need to be kept in mind, though it is a fact that in the first instance the accused has been denied due process. While having due consideration to the appellant's right, the nature of the offence and its gravity, the impact of crime on the society, more particularly the crime that has shaken the public and resulted in death of four persons in a public transport bus can not be ignored and overlooked. It is desirable that punishment should follow offence as closely as possible. In an extremely serious criminal case of the exceptional nature like the present one, it would occasion in failure of justice if the prosecution is not taken to the logical conclusion. Justice is supreme. The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative that justice is secured after providing the appellant with the legal practitioner if he does not engage a lawyer of his choice."
30. Thus, in view of the aforesaid judgments of Hon'ble the Supreme Court, we hereby allow this appeal and set side the judgment of conviction and order of sentence passed against the appellant- Manglu by the learned trial court and remand the case to the court below with a direction to hold de novo trial. The court below is directed to appoint suitable and experienced Advocate for defending the accused appellant- Manglu at the State cost immediately.
31. Trial court is further directed to conclude the trial at the earliest, preferably within six months from the date of receipt of lower court record.
32. Office is directed to send the copy of this judgment along with lower court record to the court concerned forthwith.
Order Date :- 21.12.2018 Nitesh (Rajeev Singh,J.) (Prashant Kumar,J.)