Delhi High Court
Mohd. Maqsood Alam vs The State ( Nct Of Delhi) on 15 June, 2017
$ 1 to 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th June, 2017
+ CRL.A. 955/2015
MOHD. MAQSOOD ALAM ..... Appellant
Through: Mr. Wiqar Ahmed & Mr.
Naved Johar, Advs.
versus
THE STATE ( NCT OF DELHI) ..... Respondent
Through: Mr. Tarang Srivastava, APP for
State with SI Amrik Singh, PS
Special Cell, Lodhi Colony,
Delhi.
+ CRL.A. 991/2015
ANWAR ALI ..... Appellant
Through: Mr. Dinesh Malik, Adv.
versus
STATE ..... Respondent
Through: Mr. Tarang Srivastava, APP for
State with SI Amrik Singh, PS
Special Cell, Lodhi Colony,
Delhi.
+ CRL.A. 242/2016
RAZIA ..... Appellant
Through: Appellant in person.
versus
Crl.A No.955/2015 & conn. Page 1 of 20
STATE ( NCT OF DELHI) ..... Respondent
Through: Mr. Tarang Srivastava, APP for
State with SI Amrik Singh, PS
Special Cell, Lodhi Colony,
Delhi.
+ CRL.A. 68/2016
MOHD KAMIL ..... Appellant
Through: Mr. Anil Dabas, Adv.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Tarang Srivastava, APP for
State with SI Amrik Singh, PS
Special Cell, Lodhi Colony,
Delhi.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. These four appeals arise out of the same judgment dated
29.07.2015 and order on sentence dated 30.07.2015 of the Additional
Sessions Judge-02, New Delhi in Sessions Case No. 170/2013
registered on the basis of reports under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) submitted on the basis of evidence
collected during investigation of first information report (FIR) No.
28/2013 under Sections 489B, 489C, 120B of Indian Penal Code,
1860 (IPC) of police station Special Cell, Delhi. The first three
appellants were held guilty, as charged, for offences under Sections
489B, 489C and 120B IPC, the last mentioned appellant Mohd.
Maqsood Alam having been convicted for the offence of criminal
conspiracy under Section 120B IPC.
2. Though the appeals raise a number of contentions, the prime
submission made on behalf of the first and second appellant (Mohd.
Kamil and Anwar Ali respectively) with regard to denial of
opportunity for cross-examination of two crucial witnesses for
prosecution during the trial is found sufficient to set aside the
impugned judgment, and the order on sentence, and to remit the case
to the trial court for further proceedings in accordance with law and,
for this reason, this Court would refrain from expressing any
observations, vis-a-vis, the other contentions that have been urged. At
the same time, it must be observed here itself that the role of the Bar in
expeditious trial of criminal case through a fair procedure has come
up, yet again, in the matter at hand as a serious cause for concern.
This would need elaboration.
3. The case for the prosecution, briefly put, is that on the basis of
some secret input, action was initiated on 24.06.2013 against the
backdrop of DD No. 15 dated 24.06.2013 vide Ex.PW-17/A by sub-
inspector Satish Rana (PW-17) of the special cell of Delhi police. In
the proceedings that came to be conducted in the wake of such action,
in the area of Inter State Bus Terminus (ISBT) at Kashmiri Gate,
sometime after 6.30 p.m. on 24.06.2013, the first two appellants
namely Mohd. Kamil (A-1) and Anwar Ali (A-2) were apprehended.
The police team which participated in the said action had comprised,
among others, head constable Ram Gopal (PW-3) and head constable
Ashok Kumar (PW-9). It is stated that the police officials saw A-2
receiving, from A-1, a wad of what appeared to be currency notes.
After A-1 and A-2 had been apprehended, their searches were taken.
It is alleged that A-1 was found having in his possession fake Indian
currency notes (FICN) of purported denominations of Rs. 1,000/- and
Rs. 500/- of the total face value of Rs. 3,50,000/- which were seized
vide memo Ex.PW-3/B. Similarly, the search of A-2 is stated to have
resulted in recovery of FICN of the purported denomination of Rs.
500/- of the total face value of Rs. 50,000/- which were seized vide
memo Ex.PW-3/A. The recovered notes when sent to the forensic
experts were confirmed to be fake.
4. It is alleged that, during the interrogation, A-1 had revealed the
fourth appellant Mohd. Maqsood Alam (A-4) to be the source of fake
currency and of he (A-1) having supplied such fake currency procured
from Mohd. Maqsood Alam (A-4), amongst others, to the third
appellant Razia (A-3). It is stated that the initial efforts to trace out
Mohd. Maqsood Alam (A-4) and Razia (A-3), and the others named
by A-1 in his disclosure statement, could not be successful. Later, on
the basis of some secret information respecting Razia (A-3), she was
apprehended in similar action at ISBT Anand Vihar sometime after
4.30 p.m. on 28.07.2013, her search having revealed she being in
possession of FICN of the purported denomination of Rs. 1,000/- of
the total face value of Rs. 1,00,000/- which were also seized vide
Ex.PW-4/B.
5. It may be mentioned here that Mohd. Maqsood Alam (A-4)
remained elusive for quite some time and his arrest could not be
affected. Against this backdrop, while a report under Section 173
Cr.P.C. (charge-sheet) against A-1, A-2 and A-3 had been filed, action
was initiated against A-4, and others, under Sections 82 and 83
Cr.P.C. It is stated that it is at the time of execution of the said
process under Sections 82 and 83 Cr.P.C. that, on 11.12.2013, Mohd.
Maqsood Alam (A-4) was traced out, apprehended and arrested
leading to further investigation against him. A supplementary charge-
sheet on the basis of further evidence collected during such
investigation, after the arrest of A-4, was eventually filed and came to
be clubbed with the then ongoing trial in the court of Sessions against
A-1, A-2 and A-3.
6. It may be noted here that the first charge-sheet against A-1, A-2
and A-3 had been submitted in the Court of Metropolitan Magistrate
on 19.09.2013. The Magistrate took cognizance and issued process
and after compliance with the provision of Section 207 Cr.P.C.
committed the case to sessions by order dated 3.10.2013. All the said
accused persons were in judicial custody at that stage.
7. The trial court record would show that Mr. Amardeep,
Advocate (D-3568/2010) declaring his office addresses as 360A, IInd
floor, Pocket 1, Sector 6, Rohini, Delhi and Chamber No. 110 D
block, opposite DC Office Kanjhawala, Delhi-110081 had filed two
vakalatnamas, both in respect of Anwar Ali (A-2) on 30.09.2013
(vakalatnamas are available at pages 1693 and 1695 of the trial court
record). On the same date, the same advocate filed another
vakalatnama in respect of Mohd. Kamil (A-1), (the said document
being available at page 1699 of the trial court record). It is pertinent
to add here that in the said vakalatnama dated 30.09.2013 in respect of
Mohd. Kamil, Mr. Amardeep, Advocate had disclosed his bar counsel
registration No. to be D-3536/2010.
8. Before proceeding further, it may also be added here that, on
15.01.2014, another vakalatnama came on record, jointly in respect of
both Mohd. Kamil (A-1) and Anwar Ali (A-2), it having been
submitted by Mr. Divya Kant Ahlawat, Advocate, enrolment No.
D/1100/92 declaring his address as chamber No. 589, Western Wing,
Tis Hazari Courts, Delhi (this vakalatnama is available at page 1703
of the trial court record).
9. Subsequently, the trial court record shows, Mohd. Kamil (A-1)
and Anwar Ali (A-2) engaged yet another advocate, he being Mr.
Krishna Kant, Advocate giving his address as 141, Lawyers Chamber,
Delhi High Court, New Delhi-110001 (Mobile No. 08882941995) and
office telephone no. 01123388122, the vakalatnama in respect of the
former (A-1) being undated but attested by Deputy Commissioner,
Central Jail No.4, Tihar on 1.10.2014 and the one in favour of the
other (A-2) bearing dated 7.10.2014 (these vakalatanamas of Mr.
Krishna Kumar, Advocate are available at pages 1707 and 1709 of the
trial court record).
10. The case against the first three appellants, as committed to the
court of magistrate, came up before the court of sessions on 9.10.2013.
It is clear from the proceedings that each of the three persons facing
the trial were duly represented by advocates engaged by them, Mr.
Pradeep Sharma, Advocate being the counsel for Razia (A-3).
11. The question of charge was considered and formal charges
framed by the trial court on 11.11.2013 against the first three
appellants. Thereafter, the prosecution was called upon to adduce
evidence. Midway the said stage, supplementary charge-sheet against
the fourth appellant Mohd. Maqsood Alam (A-4) had also been
submitted in the court of magistrate on 31.1.2014 and stood committed
to the court of sessions by order dated 26.02.2014. It came up before
the trial court on 6.3.2014 when it was directed to be taken up on
27.03.2014 with the case already pending. The charge against A-4
was considered and formally framed on 21.4.2014.
12. In the proceedings prior to the clubbing of the case against A-4
with that against the other three, the prosecution had examined four
witnesses, they being ASI Krishan Pal (PW-1), head constable Sanjiv
(PW-2), head constable Ram Gopal (PW-3) and SI Nirmala Kumar
(PW-4). PW-1 and PW-2 were former witnesses they respectively
being the duty officer who had registered the FIR and the Moharrar
(Malkhana), who had received and dealt with case property. PW-3,
however, was a material witness who had participated in the police
action and proceedings leading to arrest of A-1 and A-2 on 24.06.2013
wherein the fake currency notes are stated to have been recovered
from their respective possession. PW-4, on the other hand, relates to
the arrest of Razia (A-3) and recoveries made from her on 28.07.2013.
13. PW-3 and PW-4 were examined by the prosecution on
15.01.2014. On the request of the counsel for the accused persons, the
cross-examination was deferred for 15.2.2014. It needs to be recalled
that Mr. Divya Kant Ahlawat, Advocate is the counsel who was
representing the said appellants (accused persons) at that stage, he
having filed a common vakalatnama on their behalf on the same date.
It also needs to be mentioned that he would be replaced by Mr.
Krishna Kant, Advocate on 7.10.2014.
14. On 15.2.2014, the trial court could not hold effective
proceedings as Anwar Ali (A-2) was not produced from custody. The
witnesses (PW-3 and PW-4) who were present were discharged with
direction that they were to be summoned for the next date i.e.
27.03.2014. By that time, the charge-sheet against A-4 had also come
up. The charge against A-4 having been framed on 21.04.2013, the
case returned to the stage of prosecution evidence on 22.05.2014.
15. On 22.05.2014, when Mr. Divya Kant Ahlawat, Advocate was
still responsible as the defence counsel for A-1 and A-2, he would not
appear, PW-3 and PW-4 were present. They were tendered for cross-
examination. Only the counsel for A-4 exercised the said right. It is
clear that the evidence of those witnesses (PW-3 and PW-4) was, even
otherwise, not relevant against him.
16. Pertinent to add here that even Mr. Pradeep Sharma, Advocate
who was representing Razia (A-3) against whom the evidence of PW-
4 was material was not present, he having filed vakalatanama on
02.08.2013 (page 1697 of the trial court record). But then, it must also
be noted here that Razia (A-3) had engaged another counsel Ms.
Sangita Bhayana, Advocate in December 2013, attested by the Deputy
Superintendent, Central Jail No.6, Tihar on 6.12.2013 (at page 1701 of
the trial court record). Pertinent to also note that Ms. Sangita Bhayana
would not mention her full particulars in the said vakalatnama. Except
for her name, and status as an advocate, there is no indication of her
bar council registration or address (office or otherwise).
17. It needs be noted here that Razia (A-3) informed the Additional
Sessions Judge on 26.08.2014 that she had no counsel. It is clear from
the proceedings that the counsel engaged by her was not taking any
interest in discharging the responsibilities entrusted by the
vakalatnama. On her request, by order dated 26.08.2014, the
Additional Sessions Judge made a request to Secretary of the District
Legal Services Authority. The proceedings of the next date
(17.09.2014) reveal that Legal Services Authority appointed Mr. R.S.
Bhoria as the counsel to appear for Razia (A-3). But, the record
further reveals, that Razia (A-3) later abandoned the request and
engaged a private counsel on her own arrangement, he being again
Mr. Krishna Kant Advocate, as had been engaged by A-1 and A-2.
The vakalatnama of Mr. Krishna Kant, Advocate whose particulars
have been mentioned earlier, bearing attestation dated 7.10.2014 by
the Additional Sessions Judge is available at the trial court record at
page 1705.
18. Thus, from 7.10.2014 onwards, Mr. Krishna Kant, Advocate
had taken over the responsibility to represent A-1, A-2 and A-3 in the
proceedings arising out of the case. He appeared for Razia (A-3) on
20.10.2014 only in the context of her bail application and for A-1, A-2
and A-3 at the stage of evidence on 20.11.2014, on which date two
other witnesses (Dr. D.R. Handa and head constable Gyanender) were
examined as PW-7 and PW-8 respectively.
19. In the course of above-noted proceedings, when the matter had
come up at the stage of prosecution evidence before the trial court on
22.05.2014, PW-3 and PW-4 were present for cross-examination. The
opportunity given, as noted earlier, was availed only on behalf of A-4.
There was no counsel present for A-1, A-2 and A-3 and the trial judge
only noted that he had given opportunity which had not been availed
and consequently the two witnesses stood discharged.
20. The turn of Head Constable Ashok Kumar, besides other, for
giving evidence, came on 05.01.2015. Noticeably, Mr. Krishna Kant,
Advocate was present but his presence was recorded only for Razia
(A-3). Though his vakalatnama was there on record, for reasons that
cannot be comprehended, the said fact was not brought to the notice of
court even by Mr. Krishna Kant, Advocate. PW-9 was examined, his
evidence being crucial against A-1 and A-2. But, the opportunity for
cross-examination was availed only by the counsel for A-4. Mr.
Krishna Kant, Advocate, seeking to represent only Razia (A-3),
declined to cross-examine the witness on her behalf. The presiding
judge noted that he had given opportunity for cross-examination to
other accused (A-1 and A-2) which had not been availed and thus,
discharged the witness.
21. After examining the witnesses who were present (that includes
PW-9) in the court on 05.01.2015, the presiding judge in the
corresponding order-sheet noted the submission of A-1 and A-2 that
they did not have any counsel and were praying for necessary
provision. The court, thereafter, proceeded to appoint Mr. Krishna
Kant, Advocate as the Amicus Curiae for A-2 and Mr. Hamid Khan,
Advocate as the Amicus Curiae for A-1. Mr. Krishna Kant, Advocate
did not inform the court any reasons why he did not continue to be
responsible for A-1 and A-2 on the basis of vakalatnamas that he had
earlier filed. He did not make any request for opportunity to cross-
examine any of the witnesses who were present, particularly PW-9, on
behalf of A-2 for whom he had been appointed as Amicus Curiae.
22. The trial continued and eventually reached the stage of final
arguments. The case was listed before the trial court for
pronouncement of judgment on 10.07.2015. Mr. Krishna Kant,
Advocate was present as the counsel for A-3 and as Amicus Curiae for
A-2 while Mr. Hamid Khan, Advocate was present as the counsel for
A-4 and the Amicus Curiae for A-1. The trial judge noted deficiency
in the matter of cross-examination. The lawyers responded by stating
that they did not wish recall of witnesses for such purposes. The case
ultimately resulted in judgment and order on sentence which have
been impugned by the appeals at hand.
23. With his appeal (Crl. Appeal No. 68/2016) appellant Mohd.
Kamil (A-1) has filed an application (Crl.MA. 1004/2016) under
Section 311 read with Section 391 Cr.P.C. and Section 482 Cr.P.C.
seeking recall of head constable Ram Gopal (PW-3) and Ashok
Kumar (PW-9) for their respective cross-examination. It is the
submission of the counsel representing him in the appeal that the
cross-examination of the said witnesses on his behalf was essential
and, in the interest of justice, for the just decision of the case and that
absence of such effort had caused miscarriage of justice. His lament is
that due to poverty he could not engage any counsel on his own. This
apparently is incorrect inasmuch he had actually engaged a counsel of
his own and had replaced him by others as noted earlier. The request
for fresh opportunity for cross-examination of the said two witnesses
is also made by counsel for appellant Anwar Ali (A-2).
24. Cross-examination of witnesses for the prosecution on criminal
charge is an important tool in the hands of the defense to bring out the
truth to be contrary. Effective legal aid and assistance, particularly in
a criminal case, is a fundamental right of every person. It is primarily
the responsibility of the court that no person remains undefended or
deprived of effective legal assistance. Denial of such effective legal
assistance, it is trite, vitiates the end result.
25. At the same time, however, the right to legal aid cannot be
misused to turn the trial into mockery or a game of wits, or hide and
seek, particularly by the advocate who is engaged by a person facing
criminal charge. A person enrolled by the Bar Council of the State is
entitled, under the law, to practice as an Advocate before the court of
law. By filing vakalatnama (power of attorney) he engages himself in
a contract, an arrangement of responsibility. The code of discipline by
which the advocates are bound demands that the counsel who has been
engaged, one who has taken over the responsibility by filing the
vakalatnama, conducts himself responsibly, and with accountability,
not only to the person who has engaged him (this on account of
contractual obligation) but also, and more importantly, to the court
where he is entitled to appear and has on his own appeared (this
because he is foremost an officer of the court). Having filed the
vakalatnama, it is not a matter of whim or fancy or caprice of the
advocate to appear or not to appear. By filing vakalatnama he has
taken a bounden duty to appear. If for some reasons, he is unable to
continue with the said responsibility, or seeks to recuse himself, he
must appear and seek a discharge from the court. He cannot act
unilaterally. It is not a revolving door where he can enter any time or
exit it at his own choice or fancy at any time. He must inform the
reasons to the court for his disinclination to continue and seek to be
relieved - this he can do only after showing to the satisfaction of the
court he having so communicated to the client, or the client already
having so desired or being incommunicado.
26. The manner in which several advocates were engaged, one after
the other, by A-1 and A-2, they filing vakalatnamas on their behalf,
clearly shows these persons had the capacity to engage a counsel on
their own. The manner in which the counsel became elusive, to be
replaced by another counsel, however, also shows that A-1 and A-2
either had no control over the conduct of the counsel engaged by them
or the evasive conduct was part of the joint strategy to delay or
frustrate the judicial process. This indeed is a disturbing facet of the
practice often seen in the courts in the present times.
27. The trial judge did not check the status from record before
appointing amicus curiae. Mr. Krishna Kant, Advocate who was the
final choice of A-1, A-2 and A-3 as the private counsel did not even
have the courtesy to tell the court that though he had been engaged
privately by A-1 and A-2, for some reasons, he was unable to continue
with such arrangement. He was a silent spectator when the requests of
A-1 and A-2 were recorded for services of amicus curiae to be
provided to them on 05.01.2015. The fact that he opted to serve in the
capacity of amicus curiae for A-2, instead of discharging his duty as a
counsel privately engaged, failing to cross-examine crucial witnesses
(even when pointed out), is reflective of his priorities being other than
cause of justice. This is totally unacceptable, it being also an abuse of
the provision of legal aid.
28. There is one more facet which needs to be touched upon. As
mentioned earlier, A-4 had been arrested later and the case against him
came to be clubbed with that against the others, after the
supplementary charge-sheet had been filed. He had moved an
application for release on bail in this Court, it having come up as bail
application no. 819/2014. The application was dismissed as
withdrawn on 22.07.2014 by a learned single judge of this Court. But,
taking note of the fact that the trial was held up, directions were given
for the case to be made over to another court and for endeavour to be
made to decide it expeditiously within an outer limit of six months
from the date of the said order (22.07.2014). It appears that on the
request of the trial court, by subsequent order dated 27.01.2015, the
said period was extended by four months for disposal of the case.
These directions for time-bound decision of the case were noted by the
learned trial judge more than once in the proceedings, drawing the
attention of the defence counsel as well. Yet, the defence counsel
would take no interest. Can it be said that the advocates had no duty
to discharge in the face of directions of this Court? Can it be said that
they could conduct themselves as they pleased and with impunity even
if the effect was to frustrate the directions of this Court?
29. Though the proceedings recorded by the trial court on
10.07.2015 do seem to indicate that the opportunity for cross-
examination of PW-3 and PW-9 was consciously not availed, given
the conduct of the counsel, as noted in the above narration, it is clear
this was for reasons of utter neglect on the part of advocates in
discharge of their contractual and legal responsibilities. Given the
consequences that flow for A-1 and A-2 from such neglect, however,
it may be too harsh a view to take to deny the request pressed through
the application under Section 391 Cr.P.C. presented before this Court.
30. The impugned judgment and order on sentence are set aside.
The case is remitted to the trial court with directions to recall such
witnesses as are sought to be subjected to cross-examination and in
whose respect the right of cross-examination was not exercised earlier,
list whereof shall be submitted by the defence on the very first date of
next appearance being hereinafter fixed,, it being presumed in case of
default of submission of such a list that the defence does not wish to
direct any cross-examination against the witnesses for prosecution.
The case shall be taken up on day-to-day basis till conclusion of the
trial. Each appellant (accused) would be entitled to engage counsel of
his own choice or make a suitable prayer for advocate to be provided
from legal aid panel. Appropriate arrangements shall be overseen by
the learned trial judge on the very first date for such purposes. It shall
be the responsibility of all concerned, including the advocates, so
engaged or deputed, to ensure that effective proceedings take place.
31. The accused persons shall appear or be produced, as the case
may be, before the trial court on 17th July, 2017.
32. Criminal trials cannot be allowed to turn into a mockery, not the
least by advocates practicing in the criminal courts. A sense of
discipline has to be restored. Some better system for regulating their
conduct, holding them also accountable to the cause of justice will
have to be worked out. Failure on the part of the advocates, of the kind
mentioned above, are coming to the notice of this Court too
frequently. Under the existing dispensation, it is the responsibility of
the Bar Council to bring in accountability. It is time, the Bar Council
rises to the occasion and takes effective action - lest the people at large
lose faith in the judicial process, in general, and the credibility of the
advocates as an institution, in particular.
33. The presiding judge of the criminal court is not an idle
spectator. He has a duty to ensure the judicial process runs smoothly.
He holds the scales of justice in his hands and must do so taking care
it is never skewed. His responsibility for fair trial is not meant only
for one side. He must also insulate the witnesses from harassment or
intimidatory tactics.
34. In Zahira Habibullah Sheikh vs. State of Gujarat & Ors. (2006)
3 SCC 374, the Supreme Court observed:
"35. This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crime being public
wrong in breach and violation of public rights and
duties, which affect the whole community as a community
and are harmful to the society in general. The concept of
fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the
community that acts through the State and prosecuting
agencies. Interests of society is not to be treated
completely with disdain and as persona non grata.
Courts have always been considered to have an over-
riding duty to maintain public confidence in the
administration of justice - often referred to as the duty to
vindicate and uphold the 'majesty of the law'. Due
administration of justice has always been viewed as a
continuous process, not confined to determination of the
particular case, protecting its ability to function as a
Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to be
a spectator and a mere recording machine by becoming a
participant in the trial evincing intelligence, active
interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to
the parties and to the community it serves. Courts
administering criminal justice cannot turn a blind eye to
vexatious or oppressive conduct that has occurred in
relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name
and standing of the judges as impartial and independent
adjudicators."
40. Witnesses" as Bentham said: are the eyes and ears of
justice. Hence, the importance and primary of the quality
of trial process. If the witness himself is incapacitated
from acting as eyes and ears of justice, the trial gets
putrefied and paralysed, and it no longer can constitute a
fair trial. The incapacitation may be due to several
factors, like the witness being not in a position for
reasons beyond control to speak the truth in the Court or
due to negligence or ignorance or some corrupt
collusion. Time has become ripe to act on account of
numerous experiences faced by Courts on account of
frequent turning of witnesses as hostile, either due to
threats, coercion, lures and monetary considerations at
the instance of those in power, their henchmen and
hirelings, political clouts and patronage and
innumerable other corrupt practices ingeniously adopted
to smother and stifle truth and realities coming out to
surface rendering truth and justice, to become ultimate
casualties. Broader public and societal interests require
that the victims of the crime who are not ordinarily
parties to prosecution and the interests of State
represented by their prosecuting agencies do not suffer
even in slow process but irreversibly and irretrievably,
which if allowed would undermine and destroy public
confidence in the administration of justice, which may
ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of
the edifice of rule of law, enshrined and jealously
guarded and protected by the Constitution. There comes
the need for protecting the witness. Time has come when
serious and undiluted thoughts are to be bestowed for
protecting witnesses so that ultimate truth is presented
before the Court and justice triumphs and that the trial is
not reduced to a mockery..."
(Emphasis supplied)
35. It was held thus:
"33.The principle of fair trial now informs and energizes
many areas of the law. It is reflected in numerous rules
and practices. It is a constant, ongoing development
process continually adapted to new and changing
circumstances, and exigencies of the situation - peculiar
at times and related to the nature of crime, persons
involved - directly or operating behind, social impart and
societal needs and even so many powerful balancing
factors which may come in the way of administration of
criminal justice system".
(Emphasis supplied)
36. In the present case, the two witnesses whose credibility
remained untested due to absence of cross-examination are police
officials. It would not be much of a difficulty to secure their presence
again for completion of the process. But, it is often seen that similar
tactics as were employed here are used to vitiate the process
concerning material public witnesses in grave crimes, the design
obviously being to delay so that evidence can be influenced. Lack of
vigil by the trial judge results in technical lacunae which are presented
in appeal as prime grounds leading to remit orders. This is not a
healthy trend. An over burdened judicial institution cannot afford this.
37. In order that better sense of discipline is restored and the trial
courts exercise effective control and initiative over the proceedings, it
is directed that in addition to the Index of papers included in a judicial
record, a separate Index showing the particulars of the advocate(s)
engaged by each party with reference to the vakalatnama(s) filed, or
authorization submitted, on record shall be maintained in
chronological order at the beginning of file of each case. Such Index
shall be suitably updated/amended upon change, if any, of counsel.
The advocate whose vakalatnama(s) have come on record shall
continue to be responsible and accountable to the party in question,
and to the court, till he is formally relieved or discharged of such duty
by the court, or till he is replaced upon another counsel filing
vakalatnama (authorization). The court must always insist on full
particulars of the Advocate to be mentioned in the vakalatnama and, if
deemed necessary, in order to confirm identity, may require copy of
the Identity Card issued by the Bar Council to be also attached to
vakalatnama. While making a request to Legal Services Authority for
provision of legal aid counsel for any party, the court would also
inform it if the party had earlier engaged an advocate on its own so
that change of circumstances, if any, necessitating such provision can
be properly inquired into and borne in mind.
38. A copy of this order shall be sent to Secretary, Bar Council of
Delhi, for appropriate inquiry and action vis-à-vis the advocates whose
role and conduct has been noted above, for such action as may be
deemed necessary under the law.
39. A copy hereof shall be circulated amongst all judicial officers
through respective District and Session Judges and Delhi Judicial
Academy.
R.K.GAUBA, J.
JUNE 15, 2017
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