Md. Major @ Mejar vs The State Of Bihar
2022 Latest Caselaw 4525 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                     DEATH REFERENCE No.1 of 2022
    Arising Out of PS. Case No.-137 Year-2021 Thana- MAHILA P.S. District- Araria
======================================================

The State of Bihar

... ... Petitioner/s

Versus

Md. Major, S/o Late Shamser Resident of Birnagar- Paschim, P.S.- Bhargama, District- Araria, Bihar

... ... Respondent/s ====================================================== WITH

CRIMINAL APPEAL (DB) No. 203 of 2022 Arising Out of PS. Case No.-137 Year-2021 Thana- MAHILA P.S. District- Araria ====================================================== Md. Major @ Mejar, S/o Late Shamser R/o village- Birnagar Paschim, P.S.- Bhargama, District- Araria

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In DEATH REFERENCE No. 1 of 2022) For the Petitioner/s : Mr. Prince Kumar Mishra, Amicus Curiae Mr. Satya Narayan Prasad, APP Mr. Vijay Kumar, Advocate For the Respondent/s : Mr. Sanjay Singh, Sr. Advocate Mr. Raj Kumar, Advocate Mr. Vijay Kumar, Advocate Mr. Sudhanshu Shekhar, Advocate Mr. Rajnish Kumar, Advocate Mr. Sarvottam Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 203 of 2022) For the Appellant/s : Mr. Sanjay Singh, Sr. Advocate Mr. Raj Kumar, Advocate Mr. Vijay Kumar, Advocate Mr. Sudhanshu Shekhar, Advocate Mr. Rajnish Kumar, Advocate Mr. Sarvottam Kumar, Advocate For the Respondent/s : Mr. Satya Narayan Prasad, APP Mr. Prince Kumar Mishra, Amicus Curiae For the Informant : Mr. Ranjit Kumar Thakur, Advocate Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Mr. Munish Om Prakash Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR) Date : 16-08-2022

This Death Reference u/s. 366 Cr.P.C. and the

connected appeal of the convict reminds this Court the

following oft-quoted observation of Lord Hewart made while

quashing the conviction nearly 100 years ago:-

"It is not merely of some importance but it is of

fundamental importance that the justice should

not only be done but should manifestly and

undoubtedly be seem to be done."

Lord Hewart went on to observe that what was

important was not what was actually done but what might

appear to have been done and said:-

"Nothing is to be done which creates even a

suspicion that there has been an improper

interference with the course of justice."

This dictum 'Justice should manifestly and

undoubtedly be seen to be done' can be satisfied by observance

of rule of 'audi alteram partem' and the opportunity of being

heard contemplated in this rule of principle of natural justice Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

has to be real, reasonable and effective. The same should not be

for name sake - a paper opportunity particularly when the life

and liberty of an accused is at the stake. This principle is a 'sine

qua non' of every civilized society. Corollary deduced from this

rule is " qui aliquid statuerit, parte inaudita altera aeuquum licet

dixerit, haud aequum facerit" (he who shall decide anything

without the other side having been heard although he may have

said what is right will not have done what is right). The primary

aim of the principles of natural justice is to ensure equity in the

economic undertakings of society and people. It also defends

individual liberty against any arbitrary action.

The idea of natural justice may not be manifestly

seen in the Indian constitution. However, authorities consider it

as an element mandatory for the management of justice. It is an

idea of usual law which originates from "jus natural", which

stands for the law of nature. In simple terms, principles of

natural justice establish the differences between right and

wrong. Even if we go back to the ancient era during the reign

of 'Adam' and 'Kautilya's Arthashastra', the rule of law has

had this stamp of natural justice, which used to be called as

social justice. It was said that the king should shower justice in

a manner water flows out from fountains; that is without any Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

bias and must fall into everyone's hand.

Having said so, undoubtedly, an accused in a

criminal trial is required to be given an impartial hearing by an

unbiased Judge by extending him an opportunity to set up his

defence along with an opportunity to controvert the evidence

adduced by the prosecution by leading the defence evidence if

he so desires. Each and every Judge is required to keep this

basic concept of fair play in action in mind while conducting

criminal trial. With this prelude, let us turn to the facts of the

instant case.

2. The present Death Reference and the connected

Criminal Appeal arise out of judgment of conviction and order

of sentence dated 25.01.2022 and 27.01.2022 respectively,

passed by the learned Special Judge (POCSO), Araria, in

Special POCSO Case No.1 of 2022, arising out of Araria

Mahila Police Station Case No.137 of 2021. By this impugned

judgment and order, the learned Trial Court has been pleased to

convict the appellant of the offences punishable under Section

376AB of the Indian Penal Code, 1860, (IPC for the sake of

brevity), under Section 4 of the Protection of Children from

Sexual Offence Act, 2012, (POSCO Act for the sake of brevity)

and under Section 3(2)(v) of the Scheduled Castes and Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Scheduled Tribe (Prevention of Atrocities) Act, 1989,

(Prevention of Atrocities Act for the sake of brevity). By the

impugned order of sentence, the appellant came to be sentenced

to death penalty for committing the offence under Section

376AB of the IPC with a direction that he be hanged by neck

till he is dead. For the offence punishable under Section 3(2)(v)

of the Prevention of Atrocities Act, the accused is directed to

suffer imprisonment for life apart from a direction to pay fine

of rupees ten thousand. It seems that no separate sentence is

awarded to the accused for the offence punishable under

Section 4 of the POCSO Act, by the impugned order. The

learned Trial Court has directed that substantive sentences shall

run concurrently. For the sake of convenience, the appellant

shall be referred to in their original capacity as an accused.

3. The facts leading to the prosecution of the

accused projected from the police report can be summarized

thus:-

(a). The incident of penetrative sexual assault on

the victim female child i.e., PW 2 Ms. S (identity concealed)

allegedly took place after 6:00 PM of 01.12.2021. The victim

female child used to reside, along with her parents and

grandfather at village Majrahi Chakra, Ward No.4, falling Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

under jurisdiction of the Police Station Bhargama of District-

Araria. The victim female child was aged about seven years at

the time of incident. On the date of incident i.e. on 01.12.2021,

she was playing in front of her house. Her mother PW 1 Mrs.

M (identity concealed) was cooking food in the house. Accused

Major is their neighbor. He was on visiting terms with the

prosecuting party. The accused, at the relevant time came at the

door of house of PW 2 the victim female child and asked her to

give him water in the pot in order to enable him to go for

easing. When PW 2 the victim female child gave water to the

accused in the pot, the accused threw that pot, pressed her

mouth by his hand and took her in the nearby field. The accused

then committed penetrative sexual assault on PW 2- the victim

female child due to which she started bleeding. The victim was

frightened as the accused threatened her. The accused then left

her near her house. On return to her house, PW 2 the victim

female child had disclosed the incident of commission of

penetrative sexual assault on her by the accused to her mother

i.e., PW 1 Mrs. M. In the meanwhile, PW 4 Mr. B (identity

concealed)-grandfather of the victim female child had also

returned to the house.

(b). Parental relative of PW 2 the victim female Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

child then disclosed the incident to the villagers. The villagers

insisted that the matter can be settled by compromising. PW 1

Mrs. M then disclosed the incident telephonically to her

husband. That is how the police were informed about the

incident on the next day. Thereafter, PW 1 Mrs. M went to

Araria Mahila Police Station and lodged report under Section

154 of the Code of Criminal Procedure 1973 (the Cr.P.C. for the

sake of brevity) against the accused.

(c) On the basis of the FIR lodged by PW 1 Mrs.

M, Crime No.137 of 2021 came to be registered against the

accused at the Mahila Police Station, Araria, for offences

punishable under Section 376AB of the IPC, under Section 4 of

the POCSO Act as well as under Section 3(2)(v) of the

Prevention of Atrocities Act on 02.12.2021 by preparing the

formal FIR. The wheels of investigation were then set in

motion.

(d) Routine investigation followed. The victim

female child was sent for medical examination. The

Investigator recorded statement of witnesses under Section 161

Cr.P.C. Their statement under Section 164 Cr.P.C. were got

recorded from the concerned Magistrate. Spot of the incident

was inspected. The Paijama worn by the victim female child Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

was seized vide seizure memo Exhibit-5. The accused was

arrested. His sample of blood was seized vide seizure memo

Exhibit-6. Seized articles were then sent to the FSL at

Bhagalpur. On completion of routine investigation, the accused

was charge sheeted on 20.01.2022.

(e). The learned Trial Court took cognizance of the

offence on 20.01.2022 itself. The accused was then directed to

be produced through the Video Conferencing and the trial was

then fixed for supplying the police papers to the accused and for

framing of the charge on 22.01.2022.

(f). On 22.01.2022, learned Trial Court supplied

the police report under Section 173 of the Cr.P.C. which is

commonly called as the charge sheet with its annexures to the

Advocate for the accused. The charges against the accused were

framed. By producing the accused before the learned Trial

Court by Video Conferencing, charges were explained to the

accused. The accused pleaded not guilty and claimed trial. On

22.01.2022 itself, by allowing the application filed by PW 5

Anima Kumari, the Investigating Officer, evidence of four

prosecution witnesses viz. PW 1 Mrs. M. - mother of the victim

female child, PW2 - Ms. S. the victim female child, P.W. 3 Dr.

Shaila Kunwar - the Medical Officer, forbisganj Sub-Divisional Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Hospital and P.W. 4 Mr. B, the grandfather of the victim female

child came to be recorded. Then on 24.01.2022 evidence of

both the Investigators i.e. PW 5 Anima Kumari Police Sub-

Inspector and PW 6 Rita Kumari, Station House Officer of

Mahila Police Station, Araria, was recorded. Immediately

thereafter PW 5 Anima Kumari, the Investigating Officer,

submitted an application for deciding the case on the very same

day. By allowing that application partly on 22.01.2022 itself,

statement of the accused was recorded under Section 313 of the

Cr.P.C. The accused had set up a plea of alibi. He alleged false

implication and prayed for the opportunity to adduce defence

evidence. Learned Trial Court then fixed the case for defence

evidence on 25.01.2022.

(g). By rejecting the application for grant of

adjournment of one week for adducing the defence evidence, on

25.01.2022, the defence evidence came to be closed by the

learned Trial Court. Arguments of both sides were heard finally

and the accused came to be convicted as indicated in the

opening para of this judgment on 25.01.2022 itself. The case

was then adjourned for hearing the accused on quantum of

sentence to 27.01.2022 and on that day after hearing, the

accused came to be sentenced to death penalty as indicated in Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

the opening para of this judgment.

4. We heard Mr. Singh the learned Senior Advocate

appearing for the appellant/accused. He made the following

submissions.

By taking us through the order sheets of the

proceedings of the Special POCSO Case No. 1 of 2022, he

argued that the learned Trial Court has failed to accord fair trial

to the accused. The accused was supplied with police papers

and on the very same day charges were framed. After framing

of the charge, on the very same day, evidence of four

prosecution witnesses came to be recorded. All this happened in

ugly haste and effective opportunity of hearing was not granted

to the accused. The accused was prevented from adducing the

defence evidence despite his two oral and one written request

and the learned Trial Court has unfairly closed the defence side.

In order to show compliance of provisions of Section 309 of the

Cr.P.C. as well as provision of the POCSO Act, the trial against

the accused came to be concluded without granting any

opportunity to the accused to defend himself and the learned

Trial Court has flouted all the principles of natural justice.

5. The learned Senior Advocate for the accused

placed reliance on para 10 of judgment in Hussainara Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Khatoon and Others vs. Home Secretary, State of Bihar

reported in (1980) 1 Supreme Court cases 98 and argued that

concept of fair trial includes grant of sufficient time to the

accused for preparing his case. Reliance is also placed on the

judgment in the matter of Anokhilal vs. State of Madhya

Pradesh reported in (2019) 20 Supreme Court cases 196.

With the aid of this ruling, it is argued that where death

sentence could be one of the alternative punishment, the Trial

Court is supposed to be vigilant in order to see that full

opportunity of hearing is granted to the accused to present his

defence. Reliance is also placed on State of Bihar vs. Balram

Singh (2022) 2 PLJR 625 for contending that denial of fair

trial to the accused results in quashing the impugned judgment

and sentence. The learned Senior Counsel for the accused has

also relied on Krishna Janardhan Bhat vs. Dattatraya G.

Hegde reported in (2008) 4 Supreme Court Cases 54 for

contending that it is not necessary for the accused to step into

the witness box for proving the defence and that the accused

has right to maintain silence. By placing reliance on David vs.

State of Kerala reported in 2020 SCC Online Kerala 3368, it

is argued on behalf of the appellant that the accused is not

obliged to produce defence evidence and he can show on the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

totality of all the material available on record that the fact

presumed can not be said to have been proved on the touch

stone of preponderance of probability. Lastly, by placing

reliance on Manoj Pradeep Singh vs. The State of Rajasthan

reported in 2022 Live Law (SC) 557, it is argued that special

reasons means exceptional reasons for awarding death penalty

and the case in hand does not satisfy that criteria.

6. The learned Additional Public Prosecutor

appearing for the State of Bihar argued that the accused is

"Dabang" person from the village and he had taken the minor

girl for committing rape on her. The accused has criminal

history. No argument were advanced by the learned APP to

rebut the contention that fair trial was not accorded to the

accused.

7. When we started hearing of the appeal as well as

the Death Reference, initially for few dates, the learned

Additional Public Prosecutor was absent. Hence, vide order

dated 04.07.2022 we were constrained to appoint learned

Advocate Mr. Prince Kumar Mishra to act as an Amicus Curiae

in order to protect the interest of all stake holders. That is how

we have also heard Mr. Prince Kumar Mishra, the learned

Amicus Curiae at sufficient length of time. By taking us to the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

entire order-sheets of the case, it is argued by him that on

22.01.2022 after supplying the police papers to him, the

accused or his learned Advocate have not sought any

adjournment. They have not objected even for recording

evidence of prosecution witnesses on that day. He argued that

the accused participated in the trial without any demur or

protest. Similarly, even on the next date of hearing i.e., on

24.01.2022 also the accused had not applied for adjournment.

In submission of the learned Amicus Curiae, on 24.01.2022,

after closure of prosecution evidence, statement of the accused

under Section 313 Cr.P.C. came to be recorded and there was no

question of granting adjournment at that stage. He further

argued that the learned Trial Court had granted an opportunity

to the accused to produce defence evidence on 25.01.2022 but

the accused failed to avail that opportunity. Therefore, learned

Trial Court has rightly decided the case by pronouncing

judgment on that day keeping in mind the mandate of Section

309 of the Cr.P.C. as well as that of Section 35 of the POCSO

Act. He further argued that after suffering the judgment of

conviction by participating in the trial, the accused now can not

be permitted to urge that proper opportunity of defending

himself was not granted by the learned Trial Court. The learned Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Amicus Curiae attempted to distinguish judgment in the matter

of Anokhilal (supra) by contending that facts of that case were

otherwise. In that matter, the charge was framed in absence of

the defence Advocate and subsequently, the Advocate from the

panel of Legal Aid was not granted sufficient time by the

learned Trial Court. By placing reliance on judgment in the

matter of Zahira Habibulla H. Sheikh and Another vs. State

of Gujarat and Others reported in (2004) 4 SCC 158 the

learned Amicus Curiae argued that proper opportunity of

hearing was granted to the accused in the case in hand. He also

placed reliance on judgment in State of U.P vs. Sambhunath

Singh and Others reported in (2001) 4 SCC 667 and

contended that legislative mandate of Section 309 of the Cr.P.C.

is required to be followed scrupulously. He further placed

reliance on judgment in Mrs. Maneka Sanjay Gandhi and

Another vs. Ms. Rani Jethmalani reported in (1979) 4

Supreme Court cases 167 and contended that assurance of fair

trial is the principle of natural justice and the defence cannot

adopt hyper sensitive approach to urge that fair trial was not

granted to the accused.

8. On merits of the matter, Mr. Prince Kumar

Mishra, the learned Amicus Curiae argued that the case being Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

that of rape on the minor female child, the Court is supposed to

shoulder heavy responsibility by appreciating evidence of the

prosecution on broader probabilities of the case. Minor

discrepancies in such cases are required to be ignored. He

further relied on judgment in State of Punjab vs. Gurumit

Singh reported in (1996) 2 SCC 384 for contending that

evidence of the victim of rape if found to be truthful can be

accepted without corroboration. He argued that evidence of

PW 2 the victim female child is clear, cogent and trustworthy.

Therefore, there is no need to interfere in conviction of the

accused. By placing reliance on Judgment in P Ramesh -vs-

State (2019)20 SCC 593, he argued that the victim female

child is a witness of truth and competent witness whose

evidence can be relied to base conviction. However, the learned

Amicus Curiae submitted that the case in hand is not falling

under the category of rarest of rare case and, therefore, is not

warranting the death penalty. The accused can be sentenced

alternatively, as per law.

9. We have considered submissions so advanced.

We have also perused the record and proceedings. We have also

gone through all the cases cited by both the parties

meticulously. At the outset itself, we feel to say that we may be Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

excused for repetition of facts in this case involving extreme

penalty of death sentence as while dealing with the matter from

different angles, it is inevitably necessary.

10. Considering the nature of crime and delay in

disposal of trial, the Legislature has made trials of certain

offence time bound, nevertheless it is fundamental right of

every accused to have a speedy trial. As per the legislative

mandate of Sec. 309 of the Cr.P.C., the trial of the offence

under Section 376 AB of the IPC is required to be completed

within a period of two months from the date of filing of the

charge sheet. Section 35 of the POSCO Act mandates that the

trial of the offence punishable under Section 4 thereof shall be

completed, as far as possible, within a period of one year from

the date of taking cognizance of the offence. Despite these

provisions meant for speedy trial of sexual offences against

women and children, one will have to keep in mind that each

stake holder including the accused has an inbuilt constitutional

right declared in Article 21 of the Constitution to be dealt with

fairly in a criminal trial, by adherence to the procedure which

must be reasonable, just and fair. Failure to adopt such

procedure and non-compliance of statutory procedure so also

error in the procedure adopted at the trial can entail the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

consequence of setting aside the conviction and sentence

imposed on the accused. In an overzealous efforts to decide the

trial of a grave offence warranting extreme penalty, it is not

expected of a trial Judge to compromise the due process of

law. Cause of justice in such cases cannot be made to suffer by

lightly brushing aside the basic principle of fair opportunity of

defending himself to the accessed.

11. The criminal trial is a quest for truth in which

an unbiased Judge is supposed to give fair trial to both - the

prosecuting agency as well as the accused, in order to unearth

the truth to arrive at a reasonable conclusion and then, for

imposing appropriate punishment to the accused if his guilt is

established beyond all reasonable doubt. In the matter of Mrs.

Maneka Sanjay Gandhi (supra) relied by Mr. Mishra, the

learned amicus curiae, the Supreme Court has observed that

assurance of a fair trial is the first imperative of the

dispensation of justice. The notion of a free trial has close link

with the basic and universally accepted human rights. The

question whether a criminal trial is fair or not will have to be

examined by keeping in mind varied factors including the

gravity of the accusation, the time and resources which the

society can reasonably afford to spend, the quality of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

available resources, the social values etc. Let us therefore

meticulously examine the record of the learned Trial Court in

order to ascertain as to whether in the case in hand, the learned

Trial Court by acting as an impartial adjudicator has accorded

fair trial to the accused by granting him real opportunity of

hearing by following due process of law, while keeping in

mind the mandate of Article 21 of the Constitution of India.

Ultimately, nobody can be deprived of his life or personal

liberty except according to procedure established by law.

12. Now let us examine how procedural law i.e.

the Cr.P.C. takes care of principle of natural justice and fair

play in action while conducting the trial. In the case in hand,

on 20.01.2022, cognizance of the offences under Section

376AB of the IPC, Section 4 of the POCSO Act and Section

3(2)(v) of the Prevention of Atrocities Act was taken on

20.01.2022. Section 207 of the Cr.P.C. mandates that the

accused must be provided without delay the documents

including complete set of the police Report filed under Section

173 of the Cr.P.C., the First Information Report recorded under

Section 154 of the Cr.P.C., statements of witnesses recorded

under Section 161 of the Cr.P.C., confessions and statements

recorded under Section 164 of the Cr.P.C. etc., free of cost Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

before commitment of case to the court of sessions. This is

obviously for following principles of natural justice and in

order to enable the accused to know well in advance the case

against him and evidence by which the prosecution proposes to

prove the charge against him. By complying this provision,

the State gives an opportunity to the accused to think of his

defence even at the initial stage, before framing of the charge

and to enable him to point out to the court that evidence

collected by the Investigator is not sufficient to frame a charge

against him, at the next stage which is of hearing on the charge

contemplated by Section 227 of the Cr.P.C. By going through

the police papers relating to investigation, the accused gets a

broad idea of allegations against him immediately, in order to

enable him to give instructions to his advocate for effectively

defending him at the time of hearing on the charge

contemplated under Section 227 of the Cr.P.C.

13. We have already noted the provision of Section

207 of the Cr.P.C. found in Chapter-XVI of the Cr.P.C. dealing

with commencement of proceedings, which mandates that in

the proceedings instituted on a police report, the copy of the

police report under Section 173, the FIR recorded under Section

154, statements recorded under Section 161, confessions and Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

statements recorded under Section 164 and all documents etc.

sought to be relied by the Prosecution for establishing the guilt

of the accused are required to be supplied to him WITHOUT

DELAY. To supplement this provision of Section 207 of the

Cr.P.C. under its rule making power, the Patna High Court has

framed Rules titled as 'Criminal Court Rules of the High Court

of Judicature at Patna'. Rule 50 A thereof reads thus-

"50-A. Supply of Documents under Sections 173, 207 and 208 Cr.P.C.-Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.P.C. and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O.) in accordance with Sections 207 and 208 Cr.P.C."

Thus Trial Courts in the State are again reminded

by this Court to make strict compliance of Section 207,

keeping in mind the object thereof to apprise the accused of

allegations against him forthwith. This compliance is required

to be done prior to hearing the parties on the point of framing

of the charge i.e. prior to the stage as envisaged by Sections

227 & 228 of the Cr.P.C.

14. As one of the offence alleged against the

accused is punishable under Section 4 of the POCSO Act, the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Special Court is required to follow the provisions of Section 33

thereof which mandates that the trial is required to be

conducted in accordance with the procedure specified in the

Cr.P.C. for a trial before a Court of Session. Chapter XVIII of

the Cr.P.C. deals with the procedure to be followed by the

Sessions Judge while conducting the trial before it. At the

outset, the Prosecutor has to unfold the case against the

accused by describing the charge and by disclosing the

evidence with which he proposes to prove the guilt of the

accused. After completion of this stage, prescribed by Section

226 of the Cr.P.C., the Sessions Judge is required to hear

submissions of the accused and the prosecution and to apply

his mind to the record of the case. Both the parties have a

right of audience at this stage and the accused is at a liberty to

demonstrate at the very threshold itself that he is entitled for

discharge from the case. The opportunity of hearing

contemplated at the stage of Section 227 Cr.P.C. is not an

empty formality and this right cannot be denied to the accused.

That opportunity needs to be sufficient, adequate and

reasonable. If the Sessions Judge, on the basis of material

reflected in the charge-sheet is of the opinion that there is

ground for presuming that the accused has committed the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

offence exclusively triable by the Court of Sessions, he is

required to frame the charge in writing. That charge is not

only required to be read over but also explained to the accused.

Thus, on framing charge under Section 228 of the Cr.P.C. the

accused becomes precisely aware as to the case against him,

which he shall be required to answer in the trial. After making

the accused aware about the case which he is liable to meet

and if the accused pleads not guilty and claims trial, the

Sessions Judge is required to fix a date for examination of

prosecution witnesses as per mandate of Section 230 of the

Cr.P.C., on some later date.

15. If the Charge is of grave, severe and complex

nature, the accused is naturally required to be given sufficient

time to prepare his defence after receipt of the charge sheet

with complete papers of investigation and after being made

aware of the exact charge against him by the Trial Court under

Section 228 of the Cr.P.C. The above proposition flows from

the entitlement of fair hearing which is applicable to all

judicial proceedings. Procedural fairness is even otherwise

essential for enabling the Judge for arriving at correct decision

and the same is the mandate of Sections 207, 226, 227 and 230

of the Cr.P.C., Section 230 of the Cr.P.C. requires that after Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

framing the charge, the case should be adjourned and fixed at a

later date for recording evidence of prosecution witnesses. The

Trial Court, considering the extreme penalty to which the

accused becomes liable in the case relating to the charge of

grave nature, is always duty bound to fix the case for recording

evidence of the prosecution after passage of few days after

framing the charge in order to enable the accused to think

carefully about the case and then to consult his Advocate, to

instruct his Advocate and to prepare his defence after effective

consultation with his Advocate. Having interaction by

conference with his Advocate for this purpose is sine qua non

for grant of fair trial to the accused. Therefore, procedural

code i.e., the Cr.P.C. does not contemplate recording of

evidence of prosecution witnesses immediately on the very

same day after framing of the charge. On the contrary, it

provides for posting the case on some later date for this

purpose. It is expected of the trial Judge to see that the accused

and particularly an under trial accused gets proper, full,

meaningful and sufficient opportunity to defend himself by

consulting his advocate and by instructing him appropriately.

For adhering to the principles of natural justice, the Trial Court

is therefore supposed to adjourn the case for recording Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

evidence of prosecution after a gap of few days after framing

of the charge. Ugly hurry in recording evidence of prosecution

immediately on the very same day after framing of the charge,

particularly, when the accused is an under trial prisoner would

defeat the ends of justice and can cause prejudice to both the

parties. In many cases even the prosecution has to secure

attendance of witnesses through the process of the Court.

Principles of natural justice, therefore cannot be perverted to

achieve the very opposite end, by starting recording of

evidence of prosecution after framing of the charge on the very

same day as in such eventuality, sometimes even the

prosecuting agency can be prejudiced. For all these reasons,

strict compliance of Sections 207, 226, 227 and 230 of the

Cr.P.C. is mandatory and right conferred on the accused at

these stages cannot be denied to him by the trial Judge.

16. After recording evidence of the prosecution, so

also the statement of the accused under Section 313 of the

Cr.P.C and after hearing the parties, if the Sessions Judge is of

the opinion that there is no evidence that the accused

committed the offence, the accused becomes entitled for

acquittal as per provision of Section 232 of the Cr.P.C.

However, when the accused could not secure acquittal at that Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

stage, then the Judge is duty bound to call the accused to enter

into his defence for strict adherence to the principle of natural

justice which is embodied in the procedural law itself as per

mandate of Section 233 of the Cr.P.C. Apart from filing his

written statement of defence, the accused is also entitled to

examine defence witnesses for placing his case before the court

and for this purpose he can apply for the issuance of process for

compelling the attendance of any witnesses which he wants to

examine or for production of any document or thing. Section

233 of the Cr.P.C. provides that except when such request is

made for the purpose of vexation or delay or for defeating the

ends of justice, the Judge has no alternative but to issue such

process. Refusal on the part of the Sessions Judge to accede to

such request has to be supported by reasons to be recorded.

Recording of reason is mandated to prevent unfairness or

arbitrariness or infiltration of bias. Provision of Section 233 of

the Cr.P.C. is thus mandatory and failure to comply with this

provision in its true letter and spirit amounts to failure of

justice. The salutary provision contended in Section 233 is for

adherence to the principles of natural justice as nobody can be

condemned unheard. In a case relating to serious charges like

the one in hand, the Court cannot bypass this provision which Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

enables the accused to put forth his case by examining defence

witnesses or by entering in the dock himself after complying

provision of Section 315 of the Cr.P.C. This is so because in the

case in hand the accused has set up the plea of alibi and false

implication due to political enmity.

17. Law recognizes and values the obligation to

hear the other or both sides as no person should be condemned

unheard i.e., audi alteram partem. The rules of natural justice

are flexible and their application depends on facts of each case

as well as the applicable statutory provisions, i.e., the Cr.P.C.

in the case in hand. Judiciary as an organ of the State is

controlled and regulated by the Rule of Law and therefore it

becomes the primary duty of the every trial Judge to act justly

and fairly and not arbitrarily or capriciously. Therefore, when

procedural law i.e., Section 233 of the Cr.P.C. mandates that

the accused is entitled to examine witnesses to establish by

preponderance of probability that he has not committed the

crime in question, the Court cannot shut its door for depriving

the accused to avail this opportunity provided by the Statute.

The Court is bound to ensure that provision of Section 233 of

the Cr.P.C. is scrupulously followed by allowing the accused to

enter in his defence particularly when plea of alibi is raised by Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

the accused by claiming absence from the spot. Ultimately

burden is always on the accused to establish this plea and for

that purpose it becomes necessary for him to adduce defence

evidence. For fair and honest compliance of this provision of

Section 233 of the Cr.P.C., the Trial Court has to grant

sufficient time to the accused to apply for issuance of process

and to secure attendance of his witnesses before the Court

through the Court. More sensitiveness on this aspect is

expected from the Trial Court when such an accused is

suffering incarceration and as such is unable to contact his

advocates or at least relatives in order to give instructions on

this aspect. Seriousness of such situation gets more intensified

when such an under trial prisoner is not having an advantage

of appearing before the Trial Court physically because of

restrictions imposed due to COVID-19 pandemic. In such

situation, it becomes virtually impossible for the accused to

defend himself effectively unless and until the Trial Court

follows the provision of Section 233 Cr.P.C. in its true letter

and spirit. When under trial prisoner has no access to his

advocate or family members due to virtual hearing before the

Court because of COVID-19 pandemic, it becomes the duty of

theTrial Court to comply with the provision of Section 233 of Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

the Cr.P.C. scrupulously for preventing miscarriage of justice.

Omission to comply this provision which is in fact essence of

principles of natural justice undoubtedly amounts to the

flagrant breach of the principles of natural justice if such non-

compliance results in severe and substantial prejudice to the

accused and consequently failure of justice. In such fact

situation, hot haste in literally bypassing this stage of the trial

by making a show of pseudo-compliance thereof certainly

amounts to deprivation of fair trial to the accused.

18. Now let us examine the law laid down by the

Supreme Court dealing with adherence to principles of natural

justice and procedural fairness required to be adopted by the

learned Trial Court while conducting criminal trial. Article 21

of the Constitution guarantees life and personal liberty to all

persons. It read thus:

"No person shall be deprived of his life or liberty except according to procedure established by law".

In the matter of Anokhilal (Supra), the Supreme

Court has considered the question as to how and to what

extent the procedure established by law is required to be

followed while trying the accused in criminal case. Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Following are relevant observations of the Supreme Court:

"21. In the present case, the Amicus Curiae, was appointed on 19-2-2013, and on the same date, the counsel was called upon to defend the accused at the stage of framing of charges. One can say with certainty that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed.

22. The provisions concerned viz. Sections 227 and 228 of the Code contemplate framing of charge upon consideration of the record of the case and the documents submitted therewith, and after "hearing the submissions of the accused and the prosecution in that behalf". If the hearing for the purposes of these provisions is to be meaningful, and not just a routine affair, the right under the said provisions stood denied to the appellant.

23. In our considered view, theTrial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter.

The approach adopted by theTrial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

25. In V.K. Sasikala v. State [(2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] a caution was expressed by this Court as under : (SCC p. 790, para 23.4)

"23.4. While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well- entrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time."

26. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

may be expedited, but fast tracking of process must never ever result in burying the cause of justice.

27. In the circumstances, going by the principles laid down in Bashira v. State of U.P., [(1969) 1 SCR 32 : AIR 1968 SC 1313 : 1968 Cri LJ 1495], we accept the submission made by Mr Luthra, the learned Amicus Curiae and hold that the learned counsel appointed through Legal Services Authority to represent the appellant in the present case ought to have been afforded sufficient opportunity to study the matter and the infraction in that behalf resulted in miscarriage of justice. In light of the conclusion that we have arrived at, there is no necessity to consider other submissions advanced by Mr Luthra, the learned Amicus Curiae.

28. All that we can say by way of caution is that in matters where death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused".

This makes it clear that the trial Judge is required

to follow the procedural law meticulously and scrupulously at

each and every stage of criminal trial in order to see that fair

trial is granted to the accused.

19. It is also apposite to quote observation of the

Supreme Court made in paragraphs 38 to 41 in the matter of Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Zahira Habibulla H. Sheikh (Supra), which is commonly

known as the 'Best Bakery Case'. Those read thus:

"38. A criminal trial is a judicial

examination of the issues in the case and its

purpose is to arrive at a judgment on an issue as

a fact or relevant facts which may lead to the

discovery of the fact issue and obtain proof of

such facts at which the prosecution and the

accused have arrived by their pleadings; the

controlling question being the guilt or innocence

of the accused. Since the object is to mete out

justice and to convict the guilty and protect the

innocent, the trial should be a search for the truth

and not a bout over technicalities, and must be

conducted under such rules as will protect the

innocent, and punish the guilty. The proof of

charge which has to be beyond reasonable doubt

must depend upon judicial evaluation of the

totality of the evidence, oral and circumstantial

and not by an isolated scrutiny.

39. Failure to accord fair hearing either to

the accused or the prosecution violates even Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

minimum standards of due process of law. It is

inherent in the concept of due process of law, that

condemnation should be rendered only after the

trial in which the hearing is a real one, not sham

or a mere farce and pretence. Since the fair

hearing requires an opportunity to preserve the

process, it may be vitiated and violated by an

overhasty stage-managed, tailored and partisan

trial.

40. The fair trial for a criminal offence

consists not only in technical observance of the

frame and forms of law, but also in recognition

and just application of its principles in substance,

to find out the truth and prevent miscarriage of

justice.

41. "Witnesses", as Benthem said: are the

eyes and ears of justice. Hence, the importance

and primacy 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 .........."

Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

It is also observed by the Supreme Court that the

concept of fair trial entails familiar triangulation of interests of

the accused, the State and prosecuting agencies. Thus as of

prosecuting agencies, interest of the accused is also required

to be taken care of in convicting him of the grave offence.

20. In the matter of Balram Singh (supra) the

Division Bench of this Court had set aside the conviction and

resultant sentence by holding that the accused in that case was

not provided with any basic documents or sufficient time to

had the advantage of any discussion or interaction with the

lawyer.

21. The learned Senior Advocate for the appellant

had also placed reliance on para 10 of the Judgment in

Hussainara Khatoon (IV) (Supra). However we are unable to

understand properly of placing reliance on this ruling which

states that the State cannot avoid its constitutional obligation

to provide speedy trial to the accused by pleading financial or

administrative inability. Plea of poverty cannot come in the

way of speedy Justice. The ratio of this ruling cannot inure to

the benefit of the accused, as in the case in hand within few

days from filing of the charge sheet, the subject trial was over.

22. How the trial against the accused proceeded Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

and how it ended in imposing death penalty to him is required

to be put on record for testing whether fair, just and reasonable

procedure, in the light of relevant provisions of the Cr.P.C.

was followed or not by the learned Trial Court in convicting

and sentencing the accused to suffer the death penalty. The

trial in the instant case proceeded thus, as seen from the order

sheets/ Roznama maintained by the learned Trial Court.

23. Proceedings Which Took Place Before The

learned Trial Court On 20.01.2022 As Per The Order-

Sheet:-

The charge sheet came to be filed against the

accused on this day. Then Special (POCSO) Case No.1 of

2022 came to be registered against the accused. It was put up

for taking cognizance of the offence in second half of that day.

The Bench Clerk of the Court made endorsement on the order

sheet as- "No power on behalf of accused has been filed till

today i.e., on 20.01.2022. However, his brother was informed."

Thereafter, in second half of that day the accused came to be

produced through the Video Conferencing. He was directed by

the learned Trial Court to engage the Advocate. The accused

expressed his inability to engage the Advocate because of his

incarceration in the prison. Learned Trial Court took Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

cognizance of the offences punishable under Section 376AB of

the IPC, under Section 4 of the POCSO Act and under Section

3(2)(v) of Prevention of Atrocities Act. Learned Trial Court

informed the accused that the case is adjourned to 22.01.2022

for supplying the police papers to him and for framing the

Charge against him. He was also informed that if he so

requires, free legal aid would be provided to him.

24. Proceedings Which Took Place Before The

Learned Trial Court On 22.01.2022 As Per The Order-

Sheet:-

Police papers were supplied to the accused through

his Advocate who was engaged by the accused on 21.01.2022.

Endorsement of the Advocate of the accused depicting supply

of the police papers to him was taken on the order sheet of the

case. The Prosecutor as well as the learned Advocate for the

accused were heard by the learned Trial Court on the point of

framing of the charge. Charges for offences punishable under

Section 376AB of the IPC, under Section 4 of the POCSO Act

and under Section 3(2)(v) of the Prevention of Atrocities Act

were framed. Thereafter, by securing presence of the accused

via Video Conferencing, those were read over to the accused.

The accused pleaded not guilty and claimed trial by pleading Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

innocence.

Learned Trial Court then directed the Office to

issue summons to the prosecution witnesses named in the

charge sheet. Accordingly, summons were issued to the

prosecution witnesses.

Investigating Officer (PW 5 Anima Kumari)

through the Special Public Prosecutor then submitted an

application dated 22.01.2022 under her signature before the

learned Trial Court requesting the learned Trial Court that

evidence of the prosecution witnesses including that of the

victim female child should be recorded on the very same day

i.e., 22.01.2022 itself for the reason that secret information is

received to the effect that brother and members of family of

the accused are unnecessarily pressurizing the prosecution

party. (The order sheet does not reflect that say of the

accused was called on this application). Learned Trial Court

heard both the parties on the said application and allowed the

said application. The order sheet further reveals that from

11:30 AM of that day i.e. 22.01.2022 work of recording

deposition of four prosecution witnesses through Video

Conferencing was started. PW 1- mother of the victim female

child, PW 2- the victim female child, PW 3 Dr. Shaila Kunwar- Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

the Medical Officer and PW 4- grandfather of the victim

female child were examined and cross-examined on that day.

Some documents were got proved during the course of

deposition of the prosecution witnesses. The learned Trial

Court then directed that the case shall be heard on day to day

basis and it shall be disposed of expeditiously for delivering

justice to the victim female child. It was then fixed on

24.01.2022, 23.01.2022 being the holiday.

It is apposite to quote the order passed on the

application of PW 5 Anima Kumari, Investigating Officer, on

22.01.2022 by theTrial Court reads which as under:

"Seen and heard both sides and

for the interest of victim and its family

members and also keeping in view of POCSO

Act in my mind this petition is allowed. And

office is directed to post the date of this case

on day to day basis and further all the

witnesses present today have been produced

accordingly and their deposition were taken

down in the interest of justice."

25. Proceedings Which Took Place Before The

Learned Trial Court On 24.01.2022 As Per The Order- Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Sheet:-

Evidence of PW 5 Anima Kumari, Police Sub-

Inspector of Mahila Police Station Araria and evidence of PW

6 Rita Kumari, Station House Officer of Mahila Police Station,

Araria, came to be recorded. Some documents were got

proved by these witnesses. Evidence of the prosecution came

to be closed.

Then, on 24.01.2022 itself PW 5 Anima Kumari,

Police Sub-Inspector filed a written application under her

signature alleging that the accused party is giving allurement

and also threatening the victim female child and her family

members by going to their house. Therefore, she prayed that

the Special POCSO Case No.1 of 2022 should be decided on

that day i.e., on 24.01.2022 itself. (The order sheet does not

show that the learned Trial Court called for say of the

accused on this application). Learned Trial Court heard both

sides. The order sheet reflects that at that point of time itself,

the learned Advocate for the accused prayed for grant of at

least one week's time. (Obviously, adjournment was

sought for postponing recording of statement of the

accused under Section 313 Cr.P.C.). Learned Trial Court

observed that the learned Advocate for the accused has not Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

shown any concrete reason and further recorded that the

accused is protracting the trial without reason. Learned Trial

Court partly allowed the application of PW 5 Anima Kumari,

Investigating Officer, with the following order passed on that

application on 24.01.2022 itself:-

"Heard and partially permitted due to

seriousness of the offence and special status

of the victim and her kith and kin."

The order sheet reveals that instead of adjourning

the case for one week, as prayed by the learned Advocate for

the accused, the learned Trial Court directed production of the

accused through Video Conferencing on the very same day for

recording his statement under Section 313 of the Cr.P.C. [This

implies that at the time of recording evidence of

prosecution witnesses he was not before the Court.]

Accordingly, the accused was produced through the Video

Conferencing before the learned Trial Court at 4:15 PM of

24.01.2022 and his statement under Section 313 Cr.P.C. was

recorded immediately. The accused then expressed his

willingness to adduce defence evidence. Once again the

learned Advocate for the accused sought one week time in the

matter. Learned Trial Court after hearing the parties directed Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

the accused to produce the documents, if any, and to keep

defence witnesses ready before the Trial Court at 10:30 AM of

25.01.2022 with an observation that 'one who seek justice

must come with clean hand' and 'justice delayed, justice

denied'. Learned Trial Court made a record that it had insisted

the learned Advocate for the accused to adduce defence

evidence on that day i.e., on 24.01.2022 itself but the learned

Advocate for the accused had not shown any regards to this

suggestion. With these notings, the learned Trial Court fixed

the case for recording evidence of defence witnesses on

25.01.2022 i.e. on the very next day after recording evidence

of the prosecution and the statement of the accused under

Section 313 of the Code of Criminal Procedure.

26. Proceedings Which Took Place Before The

Learned Trial Court On 25.01.2022 As Per The Order-

Sheet:

The learned Trial Court recorded that up to 11:00

AM of 25.01.2022, the Advocate for the accused as well as

defence witnesses were not present. The learned Trial Court

further recorded that at about 11.10 AM, an application in

writing seeking adjournment on behalf of the accused came to

be filed with a reason that for want of time the accused could Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

not get copies of depositions of prosecution witness and due to

paucity of time, defence witnesses could not be informed and

therefore they are not present in the Court. With these reasons,

time for adducing the defence evidence was sought on behalf

of the accused. Learned Trial Court then directed the office to

supply copies of depositions of prosecution witnesses to the

learned Advocate for the accused. At about 11:30 PM of

25.01.2022, as per the record, copies of depositions of

prosecution witnesses were supplied to the Advocate for the

accused. Learned Trial Court then recorded in the order-sheet

that despite supply of copies of deposition of prosecution

witnesses neither the defence witnesses were produced nor the

list of defence witnesses was filed. Learned Trial Court

questioned the Advocate for the accused about propriety of

filing the application for adjournment by informing him that

now the copies of deposition are supplied. It is further

recorded in the order-sheet that thereafter, the advocate for the

defence orally expressed his inability to produce defence

witnesses. He informed the Court that the application for

adjournment for examining the defence witnesses was filed as

per instructions of relatives of the accused namely, Changez

and Sattar. The defence Advocate further informed that Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

relatives of the accused have not disclosed names of the

defence witnesses. Learned Trial Court then recorded in the

order sheet he had impressed upon the Advocate for the

accused need to dispose of the case immediately. The Court

observed that however, this had no effect on the learned

defence counsel. Learned Trial Court then recorded that finally

the case be fixed at 2:00 PM for recording evidence of the

defence witnesses with a warning that on failure, defence

evidence shall be closed and final arguments shall be heard.

Then at 2:00 PM of 25.01.2022, learned Trial

Court made a record in the order sheet that no defence

witnesses are produced by the advocate for the accused nor list

of such witness is filed by his relatives. Learned Trial Court

further recorded in the order sheet that then he called for the

report from the office in which it is mentioned that the

Advocate for the accused does not want to examine defence

witnesses. [No such report of the office could be located in

the record of the Trial Court.]

At 2:30 PM of 25.01.2022, learned Trial Court has

recorded in the order-sheet that list of defence witnesses or

documents are not filed and when the advocate for the accused

was asked to co-operate, he informed the Court that due to Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

pressure of 40-50 relatives of the accused, he is unable to give

in writing that the accused does not want to adduce defence

evidence. It is further recorded that the advocate for the

accused has stated that he will give the application for closing

the defence evidence in 10 minutes. It is further mentioned in

the order sheet that the Advocate for the accused has pointed

out that the Court should pass judgments in other cases which

are fixed on that day for passing judgment.

At 2:45 PM of 25.01.2022, it is recorded in the

order sheet that the application for grant of adjournment filed

by the accused on that day is disposed of by considering it as a

pressurizing tactics and excuse. [No such order is found to

have been passed by the learned Trial Court on the

application for adjournment which was moved by the

accused on 25.01.2022.] Learned Trial Court made a record

in the order sheet of 25.02.2022 that arguments in the case

were heard up to 6:30 PM and the case be put up for

pronouncement of judgment at 7:00 PM of that day i.e.,

25.01.2022.

At 7:10 PM of 25.01.2022, it is recorded in the

order sheet that the learned Trial Court has pronounced the

judgment and convicted the accused of the offences punishable Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

under Section 376AB of the IPC, Section 4 of the POCSO Act

and Section 3(2)(v) of the Prevention of Atrocities Act. The

case was then adjourned to 10:30 AM of 27.01.2022 for

hearing on quantum of sentence.

27. Proceedings Which Took Place Before The

Learned Trial Court On 27.01.2022 As Per The Order-

Sheet:

It is recorded in the order-sheet of 27.01.2022 that

at 10:30 AM both parties were heard on quantum of sentence

and in presence of the accused, he is sentenced to death for

committing the offence under Section 376 AB of the IPC. He

be hanged by neck till he is dead. The order sheet also makes a

record of other sentences imposed on the accused apart from a

direction to make a reference for confirmation of death

sentence.

28. Life and personal liberty of any person can not

be taken away except in accordance with procedure established

by law. The basic procedure for trial of a criminal case as

prescribed by the Cr.P.C. is elaborately dealt with by us in

foregoing paras. After putting on record how the trial

progressed now let us examine whether the learned Trial Court

was alive to or aware about fundamental rules for conducting Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

criminal trial as envisaged in the procedural code i.e. the Cr.P.C.

as well as the Criminal Court Rules framed by this Court apart

from principles enshrined in Article 21 of the Constitution and

whether the same were strictly followed while conducting the

trial which ended by imposing death penalty to the accused.

29. In the instant case, the charge-sheet i.e. Police

Report under Section 173 of the Cr.P.C. was filed on 20.01.2022

and presence of the accused was also secured by the learned

Trial Judge through Video Conferencing. Despite taking

cognizance of offence against him, on that day, the accused was

not provided with the Police Report with all its annexures by

ignoring the mandate of Section 207 of the Cr.P.C. which direct

supply of the entire set of papers of investigation without any

delay to the accused. Learned Trial Court instead of complying

provision of Section 207 of the Cr.P.C. adjourned the case to

22.01.2022 for supply of police papers as well as for framing of

charge. Thus salutary principle enshrined in Section 207 of the

Cr.P.C. and Rule 50A of the Criminal Court Rules is blatantly

violated by the learned Trial Court thereby depriving the

accused to become aware of the case against him and to have a

broad idea of accusation against him well in advance so as to

enable him to prepare himself to instruct his Advocate Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

appropriately beforehand for hearing on the point of framing of

charge and for claiming discharge during that hearing. The

accused was not provided sufficient time to go through the

entire set of papers of investigation, ponder over it and then to

consult as well as instruct his Advocate for opposing the request

of the prosecution for framing of charges against him and from

claiming discharge.

30. Accused Md. Major, an under trial prisoner,

was not even having the advantage of physical production

before the Court due to COVID-19 Pandemic restrictions. He

was having no opportunity to contact his advocate who was

engaged just a day earlier ( i.e. on 21.01.2022). In compliance

of due procedure prescribed by Section 207 of the Cr.P.C., the

learned Trial Court ought to have supplied the police papers to

the accused through the authorities of the prison at least on

21.01.2022 i.e., the day when the defence Advocate came to be

engaged.

31. What happened on 22.01.2022 before the

learned Trial Court is a glaring example of blatant violation of

procedural law by the learned Trial Court and the events that

took place on that day smacks of bias attitude of the learned

Trial Court towards the accused. On that day police papers of Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

investigation were supplied to the advocate of the accused as the

accused was not physically produced before the learned Trial

Court. The record of the learned Trial Court reveal that because

of restrictions imposed due to COVID-19 Pandemic, the

accused was never produced physically before the Court at any

point of time. Whenever directed by the learned Trial Court, he

used to be produced before the learned Trial Court through

Video Conferencing. Record of the learned Trial Court does not

reflect that from the date of taking cognizance of offence till

conclusion of the trial, the learned defence Counsel had a single

opportunity to meet, consult or discuss the case with the accused

at least by Video Conferencing. In fact, the accused had no

opportunity to read the charge sheet with papers of investigation

which was supplied to his Advocate few minutes earlier to

hearing on the point of charge on 22.01.2022 and by that time

the accused was not directed to be produced via Video

Conferencing by the learned Trial Court. Then without giving

any opportunity to the learned defence counsel for having

interaction with the accused for seeking instructions after

explaining the contents of the papers of investigation to the

accused, the learned counsel for the accused was required to

argue the case on the point of framing of charge as contemplated Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

by Section 227 of the Cr.P.C. All this seems to have taken place

within a short span of time at the opening hours of the day and

before 11.30 AM on 22.01.2022.

32. The accused, by that time, was not even aware

of anything contained in the police papers of investigation

which was incriminating him. He was as such unable to brief the

defence counsel for putting his stand before the court at the

stage of hearing contemplated by Section 227 of the Cr.P.C. On

22.01.2022, neither the accused nor the defence counsel were

having any means to communicate with each other for imparting

and seeking instructions, for putting forth the stand of the

accused before the Court. The order sheet of the learned Trial

Court is not even showing that the accused was produced before

the learned Trial Court at the time of hearing on the charge

through the video conferencing and that the learned defence

counsel was in a position to communicate with him at least at

that point of time for getting instructions for putting forth his

stand during the course of hearing contemplated by Section 227

of the Cr.P.C. It is crystal clear that the learned defence counsel

was made to argue the case on the point of framing of charge

without having actual and real opportunity of getting

instructions from the accused immediately after furnishing Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

police report to him. This makes it clear that due procedure of

law as prescribed by Section 207 and 227 of the Cr.P.C. was not

at all followed by the learned Trial Court by adopting totally

insensitive approach to the case relating to the serious offence

for which the alternate punishment was death sentence. In fact,

perusal of the order sheet dated 22.01.2022 does not leave any

ambiguity or creates a slightest doubt in our mind that the

learned defence counsel was not even granted a breathing time

to have a glance, leave apart sufficient time to go through the

entire set of the charge sheet which was supplied to him on that

day just few minutes earlier. He must have placed his

submissions, if any, under compelling circumstances on point of

framing charge immediately thereafter. This aspect will be clear

from the events which took place subsequently in quick

succession on that day i.e., 22.1.2022. In fact, instead of being

the mute spectator to the happenings before him in the most

natural course it was expected of the learned Trial Court to raise

to the occasion by adjourning the case suo motu after supplying

police papers to the defence Advocate for enabling him to

present his case after seeking instructions from the accused for

defending him meaningfully and effectively from the stage of

framing of the charge. It is obvious that the learned Trial Court Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

has considered the hearing on the point of framing of charge as

empty formality by its failure to adjourn the case to some other

date on 22.01.2022 after supplying the charge sheet to the

defence Advocate. In the meanwhile, the learned trial Court

ought to have permitted him to seek instructions from the

accused through video conferencing. This was not done and

mandatory provisions of Section 207 and 227 of the Cr.P.C.

were breached with impurity by the learned Trial Court due to

undue haste in framing the charge on the very same day. This

breach of procedural law certainly deprived the accused of his

right to have a fair trial. This is how the charge was framed by

the learned Trial Court and then by getting the accused produced

through the Video Conferencing, it was explained to him.

33. Immediately after the framing of the charge,

PW 5 Anima Kumari, a Police Sub-Inspector, had filed an

application before the learned Trial Court with a prayer that

evidence of prosecution witnesses should be recorded on the

very same day, i.e. 22.01.2022 itself for the reason that secret

information is received by her to the effect that the brother and

members of the family of the accused are unnecessarily

pressurizing the prosecution party. It is crystal clear that

without passing any order on that application from 11.30 AM of Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

22.01.2022, the learned Trial Court started work of recording

depositions of four witnesses viz. PW 1 to PW 4. The learned

Advocate for the accused was made to cross-examine those

witnesses instantaneously on the very same day. Dias hours in

the Trial Court starts from 10.30 AM. In opening period of one

hour i.e. from 10.30 AM to 11.30 AM, the learned Trial Court

had supplied police papers to the learned Advocate for the

accused, shown to have heard the parties on framing of the

charge, framed charges for the grave offences against the

accused. The learned Trial Court further made the record that

the charges so framed were read over and explained to the

accused by getting him produced through Video Conferencing

and his plea was also recorded thereafter. One fails to

understand how such judicial work requiring application of

mind can be done within a short period of one hour, in addition

to entertaining the application of the Investigating Officer PW 5

Anima Kumari which was made for recording evidence of

prosecution witnesses on that day itself. Ultimately, after

perusing the entire papers of investigation and applying mind to

the submissions made by both parties, charges are required to be

framed and this exercise is certainly time consuming exercise.

Trial Judge is undoubtedly aware about the actual time Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

consumed in framing charge which requires perusal of the entire

police papers, hearing submissions of both sides and application

of mind to the record to frame the charge. As such, it is

practically and humanly impossible to do this exercise in a short

span of time which ultimately leads us to the conclusion that the

Trial Court has done this exercise as mere formality bypassing

the mandate of law and the actual spirit of it. Within such short

span of time, the learned Trial Court has also shown that it heard

both parties on the application of PW 5 Anima Kumari, I.O. and

passed an order thereon. In fact, perusal of the said order of the

learned Trial Court which we have reproduced earlier shows

that instead of actually deciding that application for recording

evidence of the prosecution witnesses forthwith, initially, the

learned Trial Judge had recorded evidence of all four

prosecution witnesses and then he had in fact passed the order

on the said application of the Investigating Officer. Recitals in

the said order passed by the learned Trial Court are to the effect

that "..........and further all witnesses present today have been

produced and their depositions were taken down in the interest

of justice." These wordings clearly show that as soon as PW 5

Anima Kumari, I.O., had tendered the application for recording

evidence of four prosecution witnesses, the work of recording of Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

deposition of four witnesses must have commenced at 11.30 AM

of 22.01.2022 and after completion of their deposition, the order

must have been written allowing that application. Thus, even

the order sheet is not depicting the events as happened before

the Court on that day, correctly. That apart, procedure adopted

by the learned Trial Court for expediting the trial did not secure

the ends of justice. Rather cause of justice suffered by the

manner in which the trial was conducted.

34. This lightening speed by which the learned

Trial Court proceeded in the matter on 22.01.2022 by jumping

the stages prescribed by the procedural Code must have made it

impossible for the learned Advocate for the accused even to go

through the police papers including statements of prosecution

witnesses recorded under Sections 161 and 164 of the Cr.P.C. as

well as other documents of investigation, for conducting

effective cross-examination of four prosecution witnesses

examined on that day. To crown this all, the learned Advocate

for the accused was not in a position to communicate with the

accused as the accused was not even physically present before

the learned Trial Court. Rather the record shows that the

accused was in incommunicado state right from the inception to

end of the trial as he was used to be produced through the Video Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Conferencing as and when the learned Trial Court required his

presence either for warning him to appoint defence Advocate or

for explaining the charge and for recording his plea.

35. The order-sheet even does not show that at

the time of recording of evidence of all four prosecution

witnesses who were examined on 22.01.2022, the accused was

present before the Court at least through Video Conferencing to

hear evidence which was surfacing against him on that day.

Recording of evidence of the prosecution witnesses in presence

of the accused is minimum requirement of fair trial to the

accused. It is seen from the order-sheet that the accused was not

made to remain present even through Video Conferecning while

recording evidence of six prosecution witnesses on 22.01.2022

and 24.01.2022. Evidence of all prosecution witnesses is seen

to have been recorded in absence of the accused. Entire

evidence in this case was recorded by Video Conferencing in

which only the Advocate of the accused participated from

remote point. At this stage, it is relevant to note mandatory

provision of Section 273 of the Cr.P.C. which reads thus:

"273. Evidence to be taken in presence of accused.-Except as otherwise expressly provided, all evidence taken in the course of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-

examination of the accused]"

This mandatory provision of recording evidence in

presence of the accused is flouted by the learned Trial Court as

the record and proceedings i.e. the order-sheet does not depict

presence of the accused either physically or through Video

Conferencing before the court while recording evidence of

prosecution witnesses on any date.

36. The learned Trial Court committed error of

procedure and breach of Section 230 of the Cr.P.C. by acceding

the request of the Investigator to record evidence of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

prosecution witnesses immediately after framing of the charge,

which was done after supplying police papers to the Advocate

for the accused on the very same day and in quick succession.

This course of conducting trial adopted by the learned Trial

Court violated the right of the accused to have fair trial.

Needless to mention that the charges which the accused was

facing were grave, severe and complex in nature. The accused

was in an incommunicado state having no access to his

Advocate. His Advocate was supplied with the charge sheet just

few minutes back and work of recording evidence of the

witnesses commenced. There was no scope with the Advocate

for the accused to prepare defence of the accused after effective

consultation with and seeking instructions from the accused. As

stated earlier, the accused had no opportunity even to go through

the police papers which were not with him on 22.01.2022 rather

the same were given to his Advocate on that day. The undue

haste and hurry shown by the learned Trial Court in accepting

the request of the Investigator by flouting the mandate of

Section 230 of the Cr.P.C. resulted in defeating the ends of

justice and causing prejudice to the accused in his defence.

Breach of the principles of natural justice in such eventuality is

writ large from the record of the learned Trial Court itself Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

rendering the impugned Judgment and Order void. The

application of the Investigator was totally uncalled for. The

reason mentioned in the said application by the Investigator was

totally absurd. The averments in that application of the

Investigator makes it clear that not a single person from the

family of the victim female child had raised a grievance about

exerting pressure by the brother and family members of the

accused. The Investigator claimed that she received secret

information to that effect. She is not attributing it to the family

members of the victim female child. The accused was lodged

inside the prison. Witness Protection Scheme 2018 framed by

the Government of India as per the directions of the Supreme

Court so also the Witness Protection Scheme of 2018 framed by

the State Government were holding the field. The Investigator

was empowered to act pursuant to those Schemes if she was

apprehending that the prosecution witnesses were pressurized

by the family members of the accused. However, ignoring these

Schemes, the Investigator insisted for committing procedural

error and the learned Trial Court meekly surrendered to such

illegal request of the Investigator and precipitated the matter by

recording evidence of four prosecution witnesses on the day on

which police papers were supplied to the learned defence Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Advocate and charge was also framed against the accused

immediately thereafter, who was in an incommunicado state.

This shows scant regard for following the procedure established

by law while conducting the trial in which the accused was

liable for death penalty on proof of the charges levelled by the

prosecution.

37. We have perused evidence of all four

prosecution witnesses examined immediately after supplying

the police papers to the defence Advocate. Evidence of P.W.3

Dr. Shaila Kunwar Medical Officer of Forbesganj Sub-

Divisional Hospital who had medically examined the victim

female child is full of medical terminologies. She had proved

the papers of medical examination of PW 2 the victim female

child. The learned defence Advocate who was supplied with the

police papers just few minutes prior to examination of this

witness could not effectively cross-examine this Medical

Officer. We have also noticed that the learned defence Advocate

could not effectively cross-examine even P.W.1 Mrs. M- mother

of the victim female child. Rather it seems that as the learned

Advocate for the accused was short of instructions, in cross-

examination of mother of the victim female child, certain

materials which is incriminating the accused has surfaced on the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

record. This has certainly happened because the learned

Advocate for the accused had literally no time at his disposal to

read the charge sheet and previous statements of the mother of

the victim female child. Similar is the fact situation in respect of

the other witnesses who were requiring to be cross-examined by

the learned Advocate for the accused within at the most one

hour of supplying the police papers to him, in absence of

briefing from the accused, who was under trial prisoner having

no access to his Advocate. The learned Trial Court was

oblivious of the plights of the accused so also of mandatory

provisions of the procedural law which required strict

compliance in order to ensure fair trial to the accused.

38. On the next day, i.e. 24.01.2022, learned Trial

Court recorded evidence of P.W.5 Anima Kumari and P.W.6 Rita

Kumari, the Investigating Officers, and the record shows that on

this occasion also accused was not produced by Video

Conferencing. At least the order sheet does not mention the fact

that the accused was present through Video Conferencing during

the course of recording evidence of these two witnesses. Thus,

on that day also commission of procedural lapses continued.

The prosecution has closed its side on examining both these

Investigating Officers on 24.01.2022.

Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

39. What happened on 24.01.2022 is also

disturbing. Over enthusiastic Investigator P.W.5 Anima Kumari

then moved one more application with a request to the learned

Trial Court that the trial should be decided on that day i.e.

24.01.2022 itself by pronouncing the Judgment and Order. She

gave reason that the accused party is giving allurement as well

as threat to the family members of the victim female child.

When evidence of the prosecution witnesses was over by that

time, one fails to understand why relatives, if any, of the

accused, who was undergoing incarceration can chose to adopt

this course of alluring or pressurizing the members of the

prosecuting party in a non-compoundable offence. Nothing

could have been achieved by that. Instead of rejecting the said

application outright, the learned Trial Court had partly allowed

that application with a reason that the offence is serious and the

victim and her relatives enjoy the special status. Be that as it

may, then by acceding to the request made in writing by P.W.5

Anima Kumari, the learned Trial Court had chosen to record

statement of the accused under Section 313 of the Code of

Criminal Procedure on that day i.e. 24.01.2022 itself, by

rejecting oral request of the learned defence Advocate for

adjournment of one week. His request was rejected by observing Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

that without any reason, he is protracting the trial. The learned

Trial Court then directed its Bench Clerk to secure presence of

the accused through Video Conferencing for recording his

statement under Section 313 of the Cr.P.C. Accordingly, at

04.15 P.M. of 24.01.2022, statement of the accused came to be

recorded under Section 313 of the Cr.P.C. During his

examination by the court, the accused has categorically stated

that he wants to adduce defence evidence. The learned

Advocate for the accused then again requested for one week

time for adducing defence evidence. His request was again

rejected by keeping the case for adducing defence evidence on

the very same day i.e. 24.01.2022. The order-sheet of that date

shows that the learned Trial Court was insisting the learned

Advocate for the accused to adduce defence evidence then and

there itself after recording of statement under Section 313 of the

Cr.P.C. We fail to understand the reasons for resorting to such

an ugly haste in deciding the case involving the serious charge

entailing death penalty by the learned Trial Court. Ultimately,

the trial was adjourned to 25.01.2022.

40. We have already noted that on 25.01.2022, the

learned Advocate for the accused filed a written application for

grant of a week's adjournment by stating that he has not Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

received copies of depositions of the prosecution witnesses and

due to paucity of time, defence witnesses could not be informed

to remain present in the Court. The proceedings which took

place before the learned Trial Court on 25.01.2022 which we

have elaborately mentioned in the foregoing paragraphs makes

it clear that the learned Trial Court was hell bent upon to deliver

Judgment on that day and for that purpose, a farce of giving

few hours' time to examine defence evidence was made.

Request of the accused was for one week's time adjournment for

adducing defence evidence. The learned Trial Court insisted the

learned defence Advocate, as seen from the order sheet by

saying that as copies of depositions of the prosecution witnesses

are supplied on that day i.e. 25.01.2022, defence witness should

be examined on that day itself. This was despite the fact that the

written application on behalf of the accused was with a reason

that because of paucity of time, witnesses could not be

informed to attend Court. The case was just an overnight part

heard case in which the accused was the under trial prisoner

who was unable to meet any body including his Advocate. The

record maintained by the learned Trial Court shows that the

learned Trial Court even questioned the defence Advocate about

the propriety of filing such application for grant of adjournment. Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

The learned Trial Court was throughout insisting the Advocate

for the accused, of the need to dispose of the case immediately.

The learned Trial Court on 25.01.2022 had adopted shocking

procedure for adjourning the case on several times throughout

that day for insisting the learned defence Advocate to adduce

defence evidence. When at the beginning of the day itself

through the written application it was made clear that as the

presence of defence witness could not be secured for want of

time, adjournment of one week be granted. In spite of this, the

learned Trial Court has made a record that the Office Report

shows that the defence Advocate is not desirous of examining

the defence witness. Even with the assistance of the learned

Advocates for the parties, we are unable to find out such office

report from the record and proceedings. On that day i.e., on

25.01.2022 even the learned Advocate for the accused had dared

to point out to the learned Trial Court that it can do the work of

dictating Judgments in other cases which are fixed on the daily

board of that day for passing Judgments, instead of insisting

him to close the defence side. Ultimately, the learned Trial

Court at about 2.45 P.M. of 25.01.2022, without passing any

separate order on the application for adjournment to adduce

defence evidence filed by the accused, had observed in the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

order-sheet of that day that the said application is disposed of as

it is outcome of pressurizing tactics and excuse of the accused.

The way in which the learned Trial Court proceeded on

25.01.2022 on hour to hour basis despite written request for a

week's adjournment for adducing defence evidence reflect

flagrant disregard to the principles of natural justice by the

learned Trial Court. Each and every Trial Court is duty bound

that defence of the accused must be heard fairly. In the case in

hand, in utter haste to decide the case, the learned Trial Court

has given complete go-by to the principles of fairness in

procedure, rather considered it as mere formality to be meant for

surpass. There was nothing on record to suggest that the request

for adjournment was for the purpose of vexation or delay or for

defeating the ends of justice. The defence of the accused as

seen from cross-examination of the prosecution witnesses as

well as from his statement under Section 313 of the Cr.P.C. was

that of total denial. The accused has set up the plea of alibi. He

has specifically contended in his statement under Section 313 of

the Cr.P.C. that on the day of the incident he was at the house of

Arjun Ram situated at the western side of the canal and as such

it was not possible for him to commit the crime in question. He

has further stated in his statement under Section 313 of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Cr.P.C. that his brother Sattar had contested the election for the

post of Mukhiya of the village and his another brother Changez

had contested the election for the post of Member of the Zila

Parishad. Because of this, Mohammad Shahid who is Mukhiya

of the village as well as Journalist Aslam and one Md. Nazim

were annoyed and that is how he is falsely implicated in the

crime in question at their instance. The accused had specifically

pleaded in his statement under Section 313 Cr.P.C. that he

wants to adduce defence evidence. Thus, genuine case for

examining the defence witnesses was made out by the accused

and for that purpose he had sought only one week's time for

producing defence witnesses, after closure of the prosecution

evidence and after recording his statement under Section 313 of

the Cr.P.C. However, unfortunately, the accused was not

permitted by the learned Trial Court to examine the defence

witnesses by giving reasonable time of one week as sought by

him. Here also prejudice caused to the accused is writ large

from the record. Defence witnesses were incapacitated from

acting as eyes and ears of justice due to closure of defence

evidence.

41. After closing evidence of the accused by

refusing to adjourn the case on 25.01.2022 itself, the learned Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Trial Court insisted for hearing the arguments and made it a

record that arguments continued upto 06.30 P.M. of 25.01.2022.

The learned Trial Court then directed the case to be kept at

07.00 P.M. of the same day for pronouncement of the Judgment.

Ultimately, the judgment was pronounced at 07.10 P.M. of

25.01.2022 convicting the accused of all the offences alleged

against him. Thus, the learned Trial Court, after approximately

40 minutes of completion of arguments had dictated and

pronounced the Judgment of conviction in the case relating to

capital offence. We ourselves have perused that Judgment of

conviction which runs into 59 paragraphs consuming 27 pages

in Font No.12. Our practical experience says that this is

humanly impossible. It is mystery as to how such voluminous

Judgment which requires application of mind to the record

could have been dictated and pronounced by the learned Trial

Court in just 40 minutes after hearing the arguments of both the

parties. A lurking doubt arises as to whether the Judgment was

kept ready and farcical hearing was granted to the parties. This

is so because the learned Trial Court has repeatedly made it a

record that the case is required to be decided expeditiously in

order to do justice to the victim female child. To quote some

such instances from the record, on 21.01.2022 the case was Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

adjourned to 24.01.2022 with a reason that for delivering

justice to the victim female child, the case is required to be

heard on day to day basis. On that day, the application of the

Investigator to record evidence immediately after framing

charges was allowed mainly for the reason that interest of the

victim and her family members need to be protected. On

24.01.2022, similar application of the Investigator to decide the

case immediately after recording evidence of the prosecution

was partly allowed again with a similar reason that status of the

victim and her kith and kin requires the Court to do so. Then,

on that day oral requests for adjournment made by the defence

were rejected with insistence by the Court to the learned defence

Advocate to adduce defence evidence on that day only. On

25.01.2022, the learned Trial Court, as seen from the record

impressed the learned defence Advocate, the need to decide the

case immediately and rejected his written application for grant

of adjournment of one week by holding that it is a pressurizing

tactics and excuse. It was the very first date fixed for recording

defence evidence. It is duty of the court to do justice to both

the parties rather than leaning in favour of one side. This

conduct on the part of the learned Trial Court gives an

indication of biased attitude of the Court towards the accused. Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Every trial began with a presumption of innocence in favour of

the accused and the provision of the Cr.P.C. are so framed that

the criminal trial should begin with and be throughout governed

by this essential presumption.

42. Fair trial obviously means a trial before the

impartial Judge which precisely means that the Court should be

bias free while judging the matter. In the case in hand, in view

of aforestated facts depicting conduct of the trial, it is

reasonable on the part of the accused to infer bias. The learned

Trial Court on two occasions by giving complete go-by to the

mandatory procedural law had acceded to the request of the

Investigator P.W.5 Anima Kumari and ventured to record

evidence of prosecution witnesses on the day on which police

papers were supplied to the learned Advocate for the accused

and when the accused had no opportunity to go through those

police papers and to impart instructions to his Advocate.

Learned Trial Court on each stage of the trial was giving

complete go by to the mandatory procedure prescribed by the

Cr.P.C. by making it the part of record that for giving justice to

the victim, this course of conduct is necessary. Total obliviation

was shown to the procedural law as well as the concept of fair

trial by the learned Trial Court despite reiterating in the order Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

sheets maxims such as "Justice hurried-Justice buried" and

"Justice Delayed is Justice Denied".

43. At this juncture, it needs to mention here that in

the matter of M.V.Ganesh Prasad v. M.L.Vasudevamurthy &

Ors. reported in AIR 2003 SC 39, the Supreme Court has

observed that it must be kept in mind that the apprehension of

bias on the part of a litigant should be a 'bona fide, reasonable

apprehension and not a mere apprehension of the litigant. What

amounts to bias is aptly explained by the Supreme Court in

Ranjit Thakur v. Union of India reported in (1987) 4 SCC 611.

Paragraphs 16 to 21 of that Judgment needs to be quoted for

proper adjudication of the case in hand. Those read thus :

"16. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons. acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. [See Vassiliades v.

Vassiliades, reported in AIR 1945 PC 38]

17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?" ; but to look at the mind of the party before him.

18. Lord Esher in Allinson Vs. General Council of Medical Education and Registration, reported in [1894] 1 Q.B. 750 :

"The question is not, whether in fact he was or was not biased. The Court cannot inquire into that .......... In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased."

19. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577, 599, Lord Denning M.R. Observed:

". .. in considering whether there was a Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be nevertheless if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.

20. Frankfurter, J. in Public Utilities Commission of the District of Columbia Vs. Pollack (343 US 451 at 466-67 : 96 L ed 1068, 1079) :

"The judicial process demands that a judge move within the framework of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it.

Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-

discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment."

21 Referring to the proper test, Ackner LJ in Regina Vs. Liverpool City Justices, Ex-parte Topping, [1983] I WLR 119 :-

"Assuming therefore, that the justices had applied the test advised by Mr. Pearson : 'Do I feel prejudiced ?' then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

namely, the quashing of the conviction, would follow."

From bare perusal of the law laid down by the

Supreme Court, it is clear that the Court is expected to use arm

chair of the litigant in order to determine the apprehension and

likelihood of bias. Natural justice is a sense of what is wrong

and what is right. What is relevant is not to look into its own

mind, but to look into the mind of the litigant to consider

whether such litigant feels that the Judge is biased against him

and that he may not get justice at the hands of that Judge. If

answer to this is in affirmative then genuine case of bias can be

said to be established, having regards to other attending

circumstances. In the case in hand, the accused was not given

any opportunity to go through the police papers, he was

throughout in incommunicado state having no means to even

contact his Advocate for briefing him. He had no opportunity

even to read the charge sheet comprising of paper of

investigation till the end of the trial. His two oral and one

written application for adjournment were refused by not even

granting him chance to adduce defence evidence despite raising

plea of alibi by him. Evidence in the case was recorded in his

absence. Relevant Provisions of the Cr.P.C. were flouted with Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

impunity while conducting the trial. In such situation, it is not

possible to infer that the accused was fairly dealt with by an

unbiased Judge in an atmosphere of judicial calm.

44. There is no doubt that at the minimum the

courts must not take any decisions without affording all parties a

meaningful opportunity of hearing, and every decision by a

judge must rest on sound legal reasoning. The due process of

law must not be compromised in any attempt at providing

speedy justice. What is still more important for ensuring the due

process of law is that, firstly, the procedure provided by law

must be such as to advance the cause of substantial and

complete justice, and, secondly, the procedure so laid down is

duly followed by the courts in administering justice. While a

judge could do away with a technicality coming in the way of

substantial justice, the entire procedure governing a civil or

criminal proceeding should not be considered a mere formality

or technicality. Because once you start belittling the significance

of procedure your ability to appreciate its relevance and value to

the administration of justice and resultantly your interest and

respect for the procedure would start declining. It would not be

surprising if you start disregarding the procedure considering it

yet another impediment in the way of justice and wastage of the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

courts time which eventually will lead to a disastrous situation.

It is interesting that there is a saying in Arabic to the effect that

'haste is from shaitaan'. In formulating and effecting the justice

system, the judges should be made more efficient to be able to

deliver justice in a timely and not a hurried manner. The Trial

Courts are expected to remind themselves of the intent of

legislature behind legislating such an exhaustive and elaborate

procedure to conduct Trials keeping in mind every aspect with

respect to fairness to both victim and accused. There is a

scientific research and study done by the legislators before

legislating any act and the court must adhere to it in a

reasonable manner by keeping in mind the overall practical

difficulties and societal changes. The courts are not expected to

be either hyper technical or to completely wash away and

surpass the procedure, as is done in the instant case.

45. For these reasons, there is no alternative but

to hold that the learned Trial Court failed to follow due

procedure of law while convicting the accused and imposing

him death penalty and has also failed to act neutrally while

conducting the trial. The accused is justified in apprehending

that justice is not done to him and because of flagrant violation

of the principles of natural justice and blatant disregard to the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

mandatory statuary provisions of the Cr.P.C. as well as the Rules

framed thereunder. This apprehension is ultimately found to be

reasonable, genuine and justifiable by us. In the light of facts

emerging from the record of the Trial Court and noted by us in

foregoing paras, we feel that consciously the learned Trial Court

was prejudiced in the matter, may be as a result of

predetermination to decide the case in a particular manner and

in a record breaking time frame by disregarding the law

crystallized by the procedural Code as well as abovenoted

judgments of the Supreme Court. No doubt, the trial was over

in a record breaking time but that was at the cost of

compromising fair trial by breach of mandatory procedure

prescribed by law and victimizing the cause of justice.

46. We may give one more instance from the

evidence on record and the resultant Judgment declared

instantaneously which would show that the learned Trial Court

in a hurry to dispose of the trial has failed to do real and

substantial justice.

47. The learned Trial Court, by the impugned

judgment had convicted the accused of the offence punishable

under Section 3(2)(v) of the Prevention of Atrocities Act.

Because of this conviction in addition to death penalty, the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

accused is directed to suffer imprisonment for life and to pay a

fine of rupees ten thousand. Relevant portion of Section 3 of

the Prevention of Atrocities Act reads thus:-

"Section 3. Punishments for

offences of atrocities.- (1) ..........

(2) Whoever, not being a

member of a Scheduled Caste or a

Scheduled Tribe.- .....

(v) Commits any offence

under the Indian Penal Code punishable with

imprisonment for a term of ten years or

more against a person or property knowing

that such person is a member of a Scheduled

Caste or a Scheduled Tribe or such property

belongs to such member, shall be punishable

with imprisonment for life and with fine"

This section prescribes enhanced punishment with regard to the

offence under the IPC punishable with imprisonment for a term

of ten years or more committed against a person or property

knowing that the victim is a member of a Scheduled Caste or a

Scheduled Tribe. Following are the observations of the Supreme

Court in the matter of Khunam Singh Vs. State of Madhya Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Pradesh reported in 2019 (4) PLJR 130, found in paragraph-

13:

"13. In Dinesh alias Buddha

V. State of Rajasthan, (2006) 3 SCC 771,

the Supreme Court held as under:-

"15. Sine qua non for

application of Section 3(2)(v) is that an

offence must have been committed against a

person on the ground that such person is a

member of Scheduled Castes and Scheduled

Tribes. In the instant case no evidence has

been led to establish this requirement. It is

not case of the prosecution that the rape was

committed on the victim since she was a

member of Scheduled Caste. In the absence

of evidence to that effect, Section 3(2)(v) of

the Atrocities Act been applicable then by

operation of Law, the sentence would have

been imprisonment for life and fine."

As held by the Supreme

Court, the offence must be such as to attract

the offence under Section 3(2)(v) of the Act.

Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

The offence must have been committed

against the person on the ground that such

person is a member of Scheduled Caste and

Scheduled Tribe. In the present case, the

fact that the deceased was belonging to

"Khangar"-Scheduled Caste is not disputed.

There is no evidence to show that the

offence was committed only on the ground

that the victim was a member of the

Scheduled Caste and therefore, the

conviction of the appellant-accused under

Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities)

Act is not sustainable."

In the case in hand, there is no iota of evidence

on the record of the learned Trial Court to show that PW 2, the

victim female child was either belonging to any Scheduled

Caste or any Scheduled Tribe. Entire evidence adduced by the

prosecution is conspicuously silent on this fact. Therefore, while

recording the statement of the accused under Section 313 of the

Cr.P.C., he was not questioned on this aspect by the learned

Trial Court. We seriously believe that as the impugned Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

judgment is shown to have been prepared and delivered within a

short time of 40 minutes immediately after hearing arguments,

the learned Trial Court could not have noticed this aspect. He,

however, went on to observe in para-20 of the impugned

judgment that the accused was aware of the fact that the victim

belongs to Scheduled Caste community and the accused had

knowledge of this fact being the villager and neighbour. This

finding of the learned Trial Court is wholly perverse in the wake

of the fact that there is no evidence in the entire record and

proceedings of the learned Trial Court to show that the victim

female child belongs to any Scheduled Caste and that the

accused was aware of this fact. Thus, while fast tracking the

case, ends of justice came to be perverted.

48. The manner in which the trial was

commenced, conducted and concluded clearly displays and

demonstrates glaring abuse and misuse of judicial power by

learned Trial Court, while exercising judicial function. In view

of foregoing reasons, we are unable to concur with the

impugned judgment and order of the learned Trial Court. It

deserves to be quashed and set aside. There is no alternative but

to direct for De-novo Trial of the accused from the stage before

framing of charge as breach of mandatory provisions of law Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

commenced before framing of the charge causing miscarriage of

justice.

49. We do not wish to burden this lengthy

Judgment with other authorities cited by the learned Senior

Advocate for the appellant as those are not furthering the cause

of the appellant. Main contention on behalf of the accused is no

opportunity to adduce defence evidence is given to him. The

ratio of Judgment in the case of David (Supra) is that the

accused is not obliged to produce defence evidence. This

proposition, in the instant case cannot be of any assistance to the

appellant. Similarly, we have dealt with the aspect of breach of

principles of natural Justice in the light of facts of the instant

case. Hence case of Shambhunath (supra) has no application to

the instant case.

50. In the light of the view which we have taken

while deciding the instant matter, it is not necessary to go into

the merits of the case in order to find out whether the

prosecution is successful in proving the guilt of the accused or

not. We, therefore, refuse to dwell upon merits of the matter.

51. As we have dealt with the issue of procedural

fairness while conducting the trial, we direct the learned

Registrar General of this Court to circulate this Judgment to the Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Judicial Officers in the District Judiciary of the State of Bihar.

52. Hence, the following order:-

I. The present Death Reference is answered in

negative and the death sentence passed by the learned Trial

Court is not confirmed.

II. The impugned judgment and order passed by

the learned Trial Court in i.e., Special Judge (POCSO), Araria,

in Special POCSO Case No.1 of 2022, arising out of Araria

Mahila Police Station Case No.137 of 2021 is quashed and set

aside.

III. Cr. Appeal (DB) No. 203 of 2022 filed by the

accused-appellant is partly allowed to the extent indicated

hereinbefore. We make it clear that we have not expressed any

opinion regarding the merits of the case and our observations

are limited only to the extent that accused was not awarded fair

trial in the instant case.

IV. Since the trial is vitiated, the matter is

remanded to the learned Trial Court for fresh trail from before

the stage of framing charge.

53. We record our deep sense of appreciation for

the valuable assistance rendered by Mr. Prince Kumar Mishra,

the learned Amicus Curiae. We direct the Patna High Court Patna High Court D. REF. No.1 of 2022 dt.16-08-2022

Legal Services Committee to pay an amount of Rs.10,000/- (Ten

Thousand) to Mr. Prince Kumar Mishra, learned Amicus Curiae,

as consolidated fee for the assistance rendered by him to the

Court in the present appeal.

(A. M. Badar, J)

(Rajesh Kumar Verma, J) P.S./Mkr./Bhardwaj/-

AFR/NAFR                AFR
CAV DATE                11.08.2022
Uploading Date          16.08.2022
Transmission Date       16.08.2022