Subhash Bhardwaj vs State
2016 Latest Caselaw 5455 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 22nd August, 2016

+     Crl. Appeal No.545/2016

      SUBHASH BHARDWAJ                                  ..... Appellant
                  Through:              Mr. Ajay Verma & Ms. Katyayini,
                                        Advs.
                          versus


      STATE                                               ..... Respondent
                          Through:      Ms. Aashaa Tiwari, APP for State
                                        with SI Yogesh Raj, PS Prashant
                                        Vihar, Delhi.
                                        Mr. S.K. Sethi, Adv. for DLSA.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

GITA MITTAL, J (ORAL):

Crl. Appeal No.545/2016

1. Pursuant to our order dated 2nd August, 2016, a report has been received from Mr. Dharmesh Sharma, Member Secretary, Delhi State Legal Services Authority, informing the Court that Mr. Manish Kumar Pratihast, Advocate was on the panel of North-West, Delhi Legal Services Authority, Rohini Courts, Delhi for the period from January, 2009 to July, 2009 only. We are also informed that this counsel was, in total, assigned four cases only including the trial in the present case. This report is taken on record.

2. The appellant has assailed the judgment dated 23rd September, 2011 in

the case arising out of FIR No.350/2008 registered at police station Prashant Vihar under Sections 302/307 of the IPC pursuant to an incident on the night intervening 6th & 7th June, 2008 in which Narsi, the complainant along with his friend Manoj Chaorasia (deceased) was also injured. The appellant was arrested in this case on 11th June, 2008. On completion of the investigation, the charge-sheet was filed in the Court of the Metropolitan Magistrate, who vide the order dated 19th March, 2009, committed the case for trial to the Court of Sessions.

3. The appellant was charged for committing the offences punishable under Section 302/307 IPC by an order dated 25th February, 2009, to which he had pleaded not guilty and claimed trial. In order to bring home the guilt of the appellant, the prosecution examined 22 witnesses in support of its case.

4. Based on the evidence brought on record and the statement of the appellant recorded under Section 313 Cr.P.C. by the judgment dated 23rd September, 2011, the learned trial judge found the appellant guilty of commission of offence under Section 302/307 of the IPC. The learned trial judge thereafter considered the matter on 24th September, 2011 and has imposed the sentence of rigorous imprisonment for life and fine of Rs.5,000/- in default to undergo further simple imprisonment for a period of two months for commission of offence under Section 302 IPC. For commission of offence under Section 307 IPC, the appellant was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of one month. It was directed that all the punishments shall run concurrently.

5. The present appeal has been filed by the appellant on or above 5th May, 2016, only after a delay of 1684 days i.e. over 4 years 7 months after

passing of the impugned judgment with the assistance of the Superintendent Central Jail No.5, Tihar, New Delhi and the Delhi Legal Services Authority. The delay in filing the appeal was condoned by our order dated 1 st June, 2016 and the appeal was admitted.

6. We note that in Crl. M.A. 9288/2016, the appellant had stated that he was an illiterate, poor man and that none of his family members visit him for mulakat. In the appeal he has stated that he was in continuous custody since 11th of June 2008 (i.e. for more than 7 years and 9 months); that his family members are living in a pathetic condition as there is no source of income and they are not in a position to earn livelihood and would be in a pitiable condition.

7. It was also disclosed in Crl. MA 9288/2016 that the appellant is suffering from negative syndrome psychosis. This was confirmed by a letter dated 2nd March, 2016 from the office of the Sr. Medical Officer, Central Jail No.5, Tihar, New Delhi.

8. In the hearing on 2nd August, 2016, Mr. Ajay Verma, learned amicus curiae had submitted that the impugned judgment was contrary to law as the procedure followed during trial completely trampelled on the rights of an accused to adequate legal representation which was denied to him. It was pointed out in these circumstances that main witnesses were not subjected to cross-examination and their evidence was closed.

9. In the above circumstances apart from setting down the appeal for hearing on 2nd August, 2016 we directed as follows :-

"2. The record has been received from the trial Court. Paper books are also ready.

3. The record of this case contains a letter dated 02.03.2016 from the office of the Sr. Medical officer, Central Jail No.5, Tihar, New Delhi certifying that the appellant is "K/C/O Negative Syndrome psychosis".

4. We would like a report from the Jail authorities with regard to the complete medical record of the convict since the date he was lodged in Tihar Jail as well as any other record of prior medical history.

Accordingly, it is directed as follows:-

(i) A proper medical examination of the appellant be undertaken by the Institute of Human Behaviour and Allied Sciences and a report be submitted from the aspect of his competency to understand matters specially with regard to a court case and whether he was so capable on the dates when he was put to trial.

(ii) The jail authorities shall place the complete medical record of the appellant before the Medical Superintendent, IHBAS who shall direct the evaluation/examination by competent experts.

(iii) A report is also called from the Delhi Legal Services Authority, Rohini District Courts, Delhi to inform this court about the status of empanelment of Sh. Manish Kumar Pratihast, Advocate (who was assigned the appellant's defence in the trial Court) as a panel lawyer.

10. Inasmuch as the judgment of the trial court must fail on the above inherent illegality, it is not necessary for us to examine the challenge by the appellant on merits. Our attention is drawn to the record of the lower court which has been received by us. We find that the appellant was unable to afford a private counsel and on his request, by an order dated 28th January, 2009, a legal aid counsel, Mr. Manish Kumar Pratihast, Advocate was provided to him to defend the charges on his behalf. The case was listed on several dates thereafter. However, the record reflects that the injured victim i.e. complainant Narsi was produced as the first witness by the prosecution

on 21st August, 2009. On the first call on that date by the court, the legal aid counsel assigned to him was not present and the appellant (who was in custody) was directed to call for his counsel. We are unable to comprehend how the court expected him to do so? On the second call at about 1.00 p.m., the appellant requested an adjournment as his counsel was not available. The Court was of the view that the appellant had failed to show sufficient reason for the absence of his counsel. The order recorded by the trial judge dated 21st August, 2009 further shows that "accused has no objection if he is examined"! This "no objection" is by an illiterate, poor person who obviously has no clue of the nuances of law and the import of what was being recorded. Recording of examination-in-chiefs is serious business, it is that vital stage of a criminal trial, when a vigilant defence lawyer can ensure that no inadmissible evidence, is brought on record. In the above circumstances, no dalliance or deliberately diversionary tactics can be attributed to the appellant. Yet in the examination in chief, the most important witness was recorded without ensuring effective legal representation to the accused/appellant. His cross-examination was deferred to the next date of hearing. Several options of ensuring representation to the appellant so that the witness is not compelled to return, were available to the court but unfortunately nothing was done.

11. So far as fair representation to the appellant is concerned, the position remained no different on 22nd August, 2009 when not only PW-5, Narsi was present but another witness Lakhvinder was also present. Again, despite the plea of the appellant that his legal aid counsel had not come, the trial court completely ignored the important circumstance that he had been assigned legal aid counsel under directions of the Court, who was not effectively representing him. The order of the trial court dated 22nd August, 2009

records that the appellant had submitted that he was not aware why his counsel was not coming. This is the obvious truth in the given circumstance. The appellant having been produced from custody, would have been gravely prejudiced in ensuring the appearance of a counsel, that too one assigned by the legal aid. Despite this position, the trial court proceeded to complete the evidence of not only PW-5 Narsi but also PW-6 Lakhvinder Singh. It was deemed sufficient that the appellant was afforded an opportunity to cross- examine both witnesses!

12. In this manner, the trial court proceeded on 4th January, 2010 as well as on 28th April, 2010. It was only on 28th April, 2010 that the Court, however, appointed Sh. Aseem Bhardwaj, Amicus Curiae to conduct the appellant's defence and adjourned the matter to 30th June, 2010.

13. (PW-10) Inspector Rajni Saroha, (PW-17) Inspector Ram Sunder, (PW-4) SI Manohar Lal, (PW-12) HC Angrez Singh, Ct. Bhawnish, SI Puneet, (PW-19) Ct. Pradeep, (PW-14) Ct. Het Ram, (PW-18) SI Ram Phal, (PW-20) Head Ct. Om Prakash, HC Virender were discharged unexamined.

14. We have been taken through the record by Mr. Ajay Verma, learned counsel for the appellant as well as by Ms. Aashaa Tiwari, learned APP for the State. We find that in these circumstances (PW-5) Narsi, (PW-6) Lakhvinder Singh, (PW-7) Dr. Amit Seth (who led evidence regarding the MLC Ex.PW-7/A) and (PW-9) Ms. Smita Garg (Metropolitan Magistrate who led evidence of the TIP Ex.PW-9/A) were not cross-examined. In this manner, the prosecution completed the recording of 22 witnesses.

15. It is submitted by Mr. Ajay Verma, learned counsel for the appellant that in this background the main witnesses against the appellant has gone unchallenged. He also pointed out that Sh. V.Shankaranarayanan, SSA (Biology) from, the Forensic Science Laboratory, Rohini Delhi appeared as

PW-21 and he has wrongly also not been cross-examined by the second amicus curiae assigned to the appellant. He submits that in these circumstances, grave prejudice has resulted to the appellant and in fact the trial conducted in the absence of fair legal representation to the appellant is infact a mis-trial and the impugned judgment of conviction deserves to be set aside for this reason alone.

16. In support of this submission, learned counsel has placed reliance on the pronouncement of the Supreme Court reported as (2012) 2 SCC 584, Mohd. Hussain alias Zulfikar Ali vs. State; (1977) 2 SCC 777 State of Kerala vs. K.T. Shaduli Grocery Dealer. The learned counsel has also relied on the judgment of this Court reported as 174 DLT 558 (DB) Salamat Ali vs. State.

17. In all these judgments, the Supreme Court as well as this Court have strongly emphasized the right of every accused person to fair trial and effective representation to defend the charges levelled against him. We extract hereunder the salutary observations of the Supreme Court in the above two cases.

18. In Mohd. Hussain alias Zulfikar Ali (supra), the Supreme Court has observed as under:-

"16. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of the charge in a criminal case.

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26............ The Criminal Procedure Code ensures that an accused gets a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is

also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. The right to be defended by a learned counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is "prejudice" to an accused.

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42. ............................................The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in- chief.........................."

(emphasis by us)

19. In K.T. Shaduli Grocery Dealer, the Supreme Court has reiterated that the cross-examination is one of the most efficacious mode of establishing truth and falsehood.

20. We also note that the observations of the judgment of this Court in Salamat Ali (supra) on the issue of fair and adequate representation in the criminal trial to the accused person which reads thus:-

"20. None can belittle the right of every accused to be fairly and adequately represented in a criminal trial, especially where capital sentence is involved. Counsels play an important role in the resolution of issues in an adversarial system. Every accused has a right to meet the case of the prosecution on even terms."

(emphasis supplied)

21. Before parting with the case, we are compelled to note that we are

deeply depressed by the manner in which the learned trial judge has completely ignored the basic and fundamental aspect of the criminal trial.

The appellant was facing a charge for commission of murder for which the maximum punishment of death is prescribed. He would be sentenced to incarceration for life, as the lesser option. It is the constitutional mandate and the statutory duty of every criminal court that the accused is ensured fair and effective legal representation. No exception is permitted nor acceptable.

22. We find that in the instant case, there is not even lip service to discharging his basic responsibility by the trial judge. Instead of taking action against negligent legal aid counsel. The trial court proceeded with the trial thereby depriving the appellant of his right to fair opportunity to defend himself.

23. The record also reflects that the appellant has been denied copies of the documents when so requested by the legal aid counsel assigned to him.

24. It is the duty of the every trial court to ensure that the defence of an accused person is not compromised in any manner at all. Ensuring effective and adequate representation is the most basic of the duty and these responsibilities.

25. We find that in the present case that the witnesses who had proven critical aspects of the case of the prosecution were not examined due to the absence of any effective counsel on behalf of the appellant, which also deprived him any opportunity to cross-examine the witnesses. The court did not ensure availability of a counsel, and instead proceeded to direct a poor, illiterate and impoverished accused to cross-examine material witnesses himself and even if the cross-examination was conducted, certainly it would have been affected. Looked at from any angle it has to be held that the appellant has been deprived and denied the proper representation to defend

his case resulting in denial of his constitutional right of a fair trial.

26. Pursuant to our order dated 2nd August, 2106 we have received letters dated 9th August, 2016 and 18th August, 2016 from Dr. N.G. Desai, Director Institute of Human Behaviour & Allied Sciences (IHBAS) which informed us that the appellant is still under evaluation at IHBAS which purposes he had visited the psychiatry OPD at IHBAS on 9th August, 2016 and 13th August, 2016. The concerned experts have, on evaluation in OPD, assessed that the appellant requires detailed re-evaluation as an in-patient at IHBAS and that the entire process is likely to take a period of not less than four to six weeks following his admission. IHBAS has also requested that a family member of the appellant be instructed to accompany him to help in his detailed psychiatric assessment.

27. For the view which we have taken, it is unnecessary for this matter to detain us any further. Inasmuch as the matter is being remanded, the exercise which was contemplated by us in our orders dated 2nd August, 2016 and 11th August, 2016 can very well be undertaken and completed by the trial court. Needless to say, the trial court shall carefully scrutinize the medical report received from IHBAS so far as the evaluation of mental health of the appellant on the date of commission of offence is concerned. Resumption of the trial shall be dependent on the view taken by the trial court on the mental health of the appellant in accordance with the provisions of Section 331 of Cr.P.C.

28. We have today held that the appellant was not provided adequate and effective legal aid to conduct his defence and resulting in mis-trial compelling us to set aside the impugned judgment and to remand the matter for granting a proper representation and opportunity to cross-examine the witnesses. This is almost 8 years after the incident. It is trite that with a

passage of time human memory fails. We are not sure as to the quality of the evidence which shall emerge upon the cross-examination of these witnesses.

29. We are deeply pained by the manner the matter has proceeded in the present case. A poor person, whose mental condition is uncertain, has not only been denied fair trial but has also been denied an opportunity to file and to challenge his trial and his conviction within the statutory period of limitation. This issue deserves to be brought to the notice of both the Delhi Legal Services Authority as well as Delhi High Court Legal Services Committee.

30. In view of the above, we direct as follows:-

(i) The judgment dated 23rd September, 2011 is hereby set aside and quashed and as a consequence the order dated 24th September, 2011 shall also stand set aside.

(ii) IHBAS shall place the report in terms of order dated 2 nd August, 2016 and the foregoing directions before the District and Sessions Judge, Rohini (Outer), Delhi concerned with the case arising out of FIR No. 350/2008, PS Prashant Vihar who shall send the same to the appropriate court seized of the matter.

(iii) The Director, IHBAS shall keep the jail authorities informed of the period for which the appellant may be required to remain admitted.

(iv) A direction is also issued to the Superintendent, Central Jail Tihar, to facilitate the admission of the appellant in custody in the IHBAS as requested by the letter dated 18th August, 2016 and to make the necessary arrangements for deputing the

security guard as per rules. Intimation shall be sent by the jail to the family member of the appellant to accompany the patient to the IHBAS.

(v) The trial shall be scheduled after the trial court receives the report from IHBAS and completes its inquiry under Section 331 Cr.P.C.

(vi) The matter shall stand remanded to the trial Court for further proceedings in accordance with law. The trial judge shall ensure that effective legal aid counsel is provided to the appellant for conducting his defence and effective opportunity is given for cross-examination of witnesses who have not been cross-examined for any reason in the past.

(vii) Needless to say, in case after the inquiry as directed above, the trial court concludes that the appellant was not of sound and disposing mind on the date of commission of offence or in accordance with Section 331 of the Cr.P.C., appropriate orders in accordance with law shall be passed.

(viii) A copy of this judgment shall also be sent to the appellant through the Jail Superintendent.

(ix) The trial courts shall notify the Member Secretary, Delhi Legal Services Authority as well as the Director General of Prisons, Tihar of any accused prisoner who is held to be suffering from mental sickness and shall send a periodic report of all major steps in the case to enable them to ensure proper legal aid and assistance as is needed.

(x) The Member Secretary of the DLSA and the Superintendent, Central Jail shall explore the possibility of maintaining a central

register/record of all cases and monitoring of filing of appeals by all convicts, whether requiring legal aid or not and ensuring that the right of the prisoners are not compromised in any manner.

(xi) A copy of this judgment shall be sent to all District Judges who shall circulate copies to all courts in their district for compliance.

(xii) A copy of this judgment also be sent to the Member Secretary of Delhi Legal Services Authority as well as the Director General, Prisons, Tihar (through its Superintendent) who shall submit a report of compliance of these directions to this court within a period of six months from today.

31. This appeal is allowed in above terms.

32. Lower court record be returned.

Crl.M.B. 1135/2016

33. In view of the matter being remitted back to the trial court, this application for suspension of sentence does not survive for adjudication and is disposed of as such.

(GITA MITTAL) JUDGE

(R.K. GAUBA) JUDGE

AUGUST 22, 2016/nk