# BASHIRA v. STATE OF U.P

- **Citation:** [1969] 1 S.C.R. 32
- **Court:** Supreme Court of India
- **Decided:** 1968-04-19
- **Case number:** Criminal Appeal No. 25 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bashira-v-state-of-u-p-4406
- **Pages:** 10

## Headnote

BASHIRA
v.
STATE OF U.P.
April 19, 1968
A
IS. M. SIKRI, J. M. SHELAT AND v. BHARGAVA, JJ.]
B
c.·o,istitufion of India, 1950, Art, 21-Accused
IT~!?d for offence of
murder-Criminal Procedure Code (Act 5 of 1898), s. 340 and
Rules
made by the Jlig/J c·ourt, r. 37 Counsel appointed by SessioJ1s Co~rt f<;>r
dt•fen<linf] accused-Not given enough lime to prepar.~ defence--lj v1olatzve
of Article.
·
The :1ppellant \11a.s charged with the offence of murder uuder s .. 302
C
JPC.
Just before the beginning of the trial, the Sessions Court appomted
an advocate as atnicuJ Cllriae to represent •:he appellant.
Af[cr the examination of ""'itnc<:iscs. on the day on which the case \\ras posted for argument,
appellant's counsel prayed for the recall of 1hc sole eyc.·v.·itness for furrhcr
cross-examination as the wiincss could not be cross-examined effectively.
The application was r"e~ected, and after hearing arguments, the court convicted the appellant and sentenced him to death.
·fhc conviction
and
D
serli.t.'TICC were confirmed by the High Court.
Jn appeal to this Court, it was contended that the belated appointment
of counsel dcpnvcd the appellant of adequate legal aid and tha.: he would
be deprived of hts life in breach of his fundamental right under Art. 21.
HELD : The right on which the accused based his claim is based oo
r. 37 of the Generafkules (Criminal)l957, promulgated by the High Court
in exercise of its poW"ers under Art. 227 of .~he Constitution and s. 554
of the Criminal Procedure Code. Therefore.., the rule b, a statutory rule
aod forms pan of the procedure for trial of criminal cases.
Its intention
is that no accused person should remain unrepresen:cd by a Jawyer if he
is bein.~ tried on a charge for which a capital sentence can be awarded.
Notwithstanding the use of the word 'mav'. considering the purpose of the
rule, it must be interpreted ac; laying down a mandatory direction to the
Court to engage a counsel if the conditions laid down therein are satisfied.
As tbe rule supplements the provision contained in s. 304 Cr. P.C. under
which such appointment of counsel is oot mandatory, it is not in conflict
with the section. The last clause of the role requires that the
counsel
appointed under the Rules shall he furnished with necessary papers free
of cost and allowed sufficient time to prepare for the defence. (350--E;
36--E; 38, D, E-F]
In the present case, when the counsel \\'ac; appainted ius1 before the
trial ~tarted, there was a failure to comply v.·ith the requiremcnt(j of (be
rule.
Even though counsel did not ask for time it was the duty of the
cour-l, under the rule, 10 ~rant sufficient time to counsel. and. when sufficient time \\'JS not .Qranted to counsel to prepare the
defence, prejudice
must necessarily he inferred and the trial held vitiated.
Further, ac; the
word 'l;i"'·' in Art. 21 includes suhordinate legislation
promulgated
by
delegated authority there is a breach of An. 21. and therefore th~ question
of prejudice docs not arise. [38C; 4-0B. G--H; 41B]
Maqhoo/ Hussain v. State of Bamhay.
[1953]
S.C.R.
730.
Pandit
M. S. M. Sharma v. Shri Sw Krishna Sinha, [195'1] Supp. I
S.C.R. 806
and Makhan Singh v. State of Punjah, [1964] 4 S.C.R. 797. followed .
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BASHIRA v. STATE OF U.P. (Bhargava, J.)
33
A. K. Gopa/an v. State of Madras, [1950] S.C.R. 88,
111-112;
Janardan Reddy v. State of Hyderabad. [1951] S.C.R. 344 and Tara Smgh
v. The State, [1951] S.C.R. 729, explained.
,
Re: Alla Nagesnara
Rao, A.LR.
1957 A.P. 505 and
Mathai
Tlwmmen v. State A.I.R. 1959 Kerala 241, referred to.

## Text

BASHIRA
v.
STATE OF U.P.
April 19, 1968
A
IS. M. SIKRI, J. M. SHELAT AND v. BHARGAVA, JJ.]
B
c.·o,istitufion of India, 1950, Art, 21-Accused
IT~!?d for offence of
murder-Criminal Procedure Code (Act 5 of 1898), s. 340 and
Rules
made by the Jlig/J c·ourt, r. 37 Counsel appointed by SessioJ1s Co~rt f<;>r
dt•fen<linf] accused-Not given enough lime to prepar.~ defence--lj v1olatzve
of Article.
·
The :1ppellant \11a.s charged with the offence of murder uuder s .. 302
C
JPC.
Just before the beginning of the trial, the Sessions Court appomted
an advocate as atnicuJ Cllriae to represent •:he appellant.
Af[cr the examination of ""'itnc<:iscs. on the day on which the case \\ras posted for argument,
appellant's counsel prayed for the recall of 1hc sole eyc.·v.·itness for furrhcr
cross-examination as the wiincss could not be cross-examined effectively.
The application was r"e~ected, and after hearing arguments, the court convicted the appellant and sentenced him to death.
·fhc conviction
and
D
serli.t.'TICC were confirmed by the High Court.
Jn appeal to this Court, it was contended that the belated appointment
of counsel dcpnvcd the appellant of adequate legal aid and tha.: he would
be deprived of hts life in breach of his fundamental right under Art. 21.
HELD : The right on which the accused based his claim is based oo
r. 37 of the Generafkules (Criminal)l957, promulgated by the High Court
in exercise of its poW"ers under Art. 227 of .~he Constitution and s. 554
of the Criminal Procedure Code. Therefore.., the rule b, a statutory rule
aod forms pan of the procedure for trial of criminal cases.
Its intention
is that no accused person should remain unrepresen:cd by a Jawyer if he
is bein.~ tried on a charge for which a capital sentence can be awarded.
Notwithstanding the use of the word 'mav'. considering the purpose of the
rule, it must be interpreted ac; laying down a mandatory direction to the
Court to engage a counsel if the conditions laid down therein are satisfied.
As tbe rule supplements the provision contained in s. 304 Cr. P.C. under
which such appointment of counsel is oot mandatory, it is not in conflict
with the section. The last clause of the role requires that the
counsel
appointed under the Rules shall he furnished with necessary papers free
of cost and allowed sufficient time to prepare for the defence. (350--E;
36--E; 38, D, E-F]
In the present case, when the counsel \\'ac; appainted ius1 before the
trial ~tarted, there was a failure to comply v.·ith the requiremcnt(j of (be
rule.
Even though counsel did not ask for time it was the duty of the
cour-l, under the rule, 10 ~rant sufficient time to counsel. and. when sufficient time \\'JS not .Qranted to counsel to prepare the
defence, prejudice
must necessarily he inferred and the trial held vitiated.
Further, ac; the
word 'l;i"'·' in Art. 21 includes suhordinate legislation
promulgated
by
delegated authority there is a breach of An. 21. and therefore th~ question
of prejudice docs not arise. [38C; 4-0B. G--H; 41B]
Maqhoo/ Hussain v. State of Bamhay.
[1953]
S.C.R.
730.
Pandit
M. S. M. Sharma v. Shri Sw Krishna Sinha, [195'1] Supp. I
S.C.R. 806
and Makhan Singh v. State of Punjah, [1964] 4 S.C.R. 797. followed .
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BASHIRA v. STATE OF U.P. (Bhargava, J.)
33
A. K. Gopa/an v. State of Madras, [1950] S.C.R. 88,
111-112;
Janardan Reddy v. State of Hyderabad. [1951] S.C.R. 344 and Tara Smgh
v. The State, [1951] S.C.R. 729, explained.
,
Re: Alla Nagesnara
Rao, A.LR.
1957 A.P. 505 and
Mathai
Tlwmmen v. State A.I.R. 1959 Kerala 241, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
25 of 1968.
Appeal by special leave from the judgment and order, dated
July 20, 1967 of the Allahabad High Court in Cr. A. No. 469 of
1967 and Ref. No. 21 of 1967.
K. K. Luthra, for the appellant.
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0. P. Rana, for the respondent.
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The Judgment of the Court was delivered by
Hhargava, J. The appellant Bashira was convicted by the
Court of Session for having committed the murder of his own
wife Saira alias Mahobawali with an axe inside his house at about
11 ?..m. on 22nd August, 1966. The First Information Report
of this incident was lodged on the same day at 5-15 p.m. by
Naziran, the mother of the appellant, who went to the Police
Station accompanied by the Chaukidar. The investigation of the
case began on 23rd August, 1966.
The appellant surrendered
himself in Court on 24th August, 1966.
On 15th September,
1966, the Challan was presented in the Court of the Magistrate
who recorded some evidence, proceeded in
accordance with
section 207 A of the Code of Criminal Procedure, and then, on
28th November, 1966, committed the appellant for trial to the
Court of Session for the offence of committing the murder of his
wife punishable under section 302 of the Indian Penal Code.
The Temporary Civil & Sessions Judge of Hamirpur fixed 28th
February, 1967 as the date for starting the actual trial of the case.
On that day, before beginning the trial, he appointed one Sri
Sirish Chandra, Advocate, as amicus curiae counsel to represent
the appellant. He amended the charge which was read out to the
appellant who pleaded not guilty. Thereafter, on that very day,
evidence of two principal prosecution witnesses was
recorded.
The first witness was Smt. Naziran, the mother of the appellant,
who had lodged the F.{.R., and the second witness was Khan
Bahadur, son of the appellant, who· was the sole eye-witness of
the incident of murder.
The remaining evidence was recorded
on 1st March, 1967, on which date the appellant was also examined under section 342, Cr. P.C.
The appellant stated that
he would not produce any defence. A joint application of counsel ~or parties was presented on that day requesting the court to
make a local inspection and 12th March~ 1967 was fixed for
local inspection.
The Temporary Sessions Judge in that order
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SUPREME COVRT REPORTS
(1969] I S.C.R.
directed that a suitable conveyance should be arranged for him
<L' he had no conveyance of his own.
On 8th March, 1967, the
Public Prosecutor gave it in writing that no conveyance could
be arranged and, therefore, prayed that the local inspection may
be cancelled. The Judge cancelled !he direction for local inspection and then fixed 10th March. 1967 for arguments.
On that
day, Sri Shukla, counsel representing the appellant presented an
application praying for the recall of P. W. 2 Khan Bahadur for
further cross-examination on the ground that there had been an
omission in drawing his attention to a contradiction with his statement recorded in the Court of the Committing Magistrate.
He
added that there were many O!her things to be seen and made this
request in the interest of justice. The Judge held that the groWld
for recall that the witness could not be cross-examined effectively
would hardly justify the recall of the witness for further crossexamination.
He further expressed his opinion that, even if the
statement attributed to the witness as having been made by him in
the Court of the Committing Magistrate is brought on the record,
it would not help the appellant to any appreciable degree in his
defence.
On these grounds, the application was rejected. Arguments were then heard on the same day and judgment was delivered on 13th March. 1967, convicting the appellant for
the
offence of murder under s. 302, I.P.C. and sentencing him to
death.
The appellant appealed in the High Court of Allahabad
and the Tempy. Sessions Judge also made a reference for confirmation of the sentence of death.
The High Court disntissed
the appeal, accepted the reference and confirmed the sentence of
death. The appellant has now come up to this Court against that
judgment of the High Coun in appeal by special leave.
In this case, the principal ground urged on behalf of the
appellant raises an important question of law.
Learned counsel
appearing for the appcllam emphasised the circumstance that the
amicus curiae counsel to represent the appellant was appointed
by the Sessions Judge on the 28th February, 1967, just when
the trial was about to begin and this belated appointment of the
counsel deprived the appellant of adequate legal aid, so that he
was unable to defend himself properly.
It was urged that the
procedure adopted by the Court was not in accordance with Jaw,
so that, if the sentence of death is carried out, the appellant will
be deprived of his life in breach of his fundamental right under
Article 21 of the Constitution which lays down that no person
shall be deprived of his life or personal liberty, except according
to procedure .,,;tablishcd by law.
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The main procedure for trial of a criminal case is laid down
H
in the Code of Criminal Procedure and. in this case, there is no
o-rievance that the pr<Jccdurc laid down therein was not foliowed
by the Court of Session.
The grievance, however, is that there
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BASH!RA v. STATE OF U.P. (Bhargava, J.)
35
are provisions supplementing the procedure laid down by the
Criminal Procedure Code and the course adopted by the Court of
Session was in breach of these supplementary rules.
Reference
was made to Rule 37 in Chapter V of the General Rules (Criminals), 1957 (hereinafter referred to as "the Rules") promulgated
by the High Court of Allahabad in exercise of its powers under
Article 227 of the Constitution and section 554 of the Code of
Criminal Procedure. These Rules were published under Notification No. 241/ A/VIII-a-I, dated September 4, 1956 in the Supplement to the Government Gazette of Uttar Pradesh, dated 3rd
November, 1956.
The notification clearly mentions the powers.
under which the High Court promulgated the Rules and also contains a clear recitation that_ the Rules were being published with
the previous approval of the Government of Uttar Pradesh. We
have mentioned these details, because at one stage it was urged
by learned counsel appearing for the respondent State Govern-
. ment that R. 3 7 of the Rules had no statutory force at all. The·
notification in the Gazette makes it perfectly clear that these Rules
were all framed by the High Court in exercise of the powers conferred on it by the Constitution or by the Code of Criminal Procedure.
The Rules are, therefore, clearly statutory Rules and,
as ·such, they form a part of the procedure for trial of criminal:
cases by courts subordinate to the High Court of Allahabad, in
addition to the procedure laid down by the Code of Criminal'
Procedure.
Rule 37 of the Rules is as follows :-
"In any case which comes before a Court of Session, the court may engage counsel to defend the accused person if-
( a) the charge against him is such that a capital
sentct1ce is possible, and
(b) it appears that he has not engaged counsd
and is not possessed of sufficient JUeans to do so.
To enable the Sessions Court to arrive at a decision
as regards the second condition in the preceding paragraph. the committing Magistrate shall in such cases
make enquiries from the accused at the time of commitment and after ma~in.g such other enquiries as may
be necessary, report wJthm a month of the commitment
order to the court to which the commitment is made
whether the accused is possessed of sufficient means to
engage counsel. Each case must be decided on its
merits and no hard an.ct fast rule as to sufficiency of
means should be applied. The Sessions Court in
making its decision shall not be bou11d by the report
of the committing magistrate.
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SUPREME COURT REPORTS
[ 1969] I S.C.R.
Counsel appointed under this rule shall be furnished
with the necessary papers free of cost and allowed sufficient time to prepare for the defence."
On the basis of the language used in this Rule, learned counsel
for the State urged that this Rule should not be held to be mandatory, but only a Rule enabling a Court to engage a counsel
to dctend a person accused of an offence punishable with capital
sentence. It is true that the word used is '"may" in this Rule, but,
in our opinion, the purpose of the Ruic will
be
completely
defeated if we were to accept this submission.
It appears that
the word "may" was used only because there are certain conditions laid down, on the existence of which depends the appointment of the amicus curiae counsel to represent the accused. The
princip~l pre-condition is that the accused has himself not engaged a counsel and is not possessed of sullicient means to do so.
The Rule adds that no hard and fast rule as to the suflicicncy of
means should be applied when the court has to decide whether ~n
.amicus curiae counsel should be provided at the cost of the
Government, and each case must be decided on its merits. It was
because of these conditions that the word "may" was used in the
Rule; but the intention of the Rule is perfoctly clear
that no
accused person should ~cmain totally unrepresented hy a lawyer,
if he is being tried on a charge for which a capital sentence can
be awarded. Considering the purpose of this Rule, we hoid that
the word "may" in this Rule must be interpreted as laying down
a mandatory direction to the Court to engage a counsel, if the
conditions laid down in the Ruic are otherwise satisfied.
In this connection. learned counsel for the State drew our
attention to two decisions of this Court reponed in Janardan
Reddy and Others v.
The State of Hyderabad and Others and
connected Appeals('), and Tara Singh v. The State(°).
In the
first of these two cases, this Court was considering the effect of
section 271 of the Hyderabad Criminal Procedure
Code
read
along with the Rules and Circular Orders issued by the Hyderabad High Court and, in that connection, held that, though s. ~71
of the Hyderabad Criminal Procedure Code corresponds to sect10n
340 of the Indian Criminal Procedure Code, these provisions did
not lay down as a rule of law that in every capital sentence case,
where the accused is unreorcsented. the trial should be held to
be vitiated.
In the second case, this Coun examined the scope
of the right conferred on an accused by s. 340 ( l) of the C0d7 of
Criminal Procedure and held that it docs not extend to a nght
in an accused rcrson to be nrovided with a lawyer by the State
or hv the Police or by the Magistrate.
The privilege conferred
bv this provision only gave a right to an accused to be rcpre-
·sented by a counsel 'JI he wanted to engage one himself or to
(I) (19SIJ S.C.R .. 144.
<2) fl9SIJ S.C.R. 729.
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BASH!RA v. STATE OF U.P. (Bhargava, J.)
37
get his relations to engage one for him. The only duty ~ru.t on
the Magistrate is to afford him the n~essary opportUllity f~r
this purpose. It appears to us that neither of these two cases IS
applicable to the case before us, because, in those cases, no question arose of taking into account a provision laying down procedure for trial of cases such as is contained in r. 37 of the Rules.
These cases, no doubt, show that s. 340, Cr. P.C. by itself, does
not cast any duty on a court to provide a counsel at State expense
even when the offence triable is punishable with death; but that
is immaterial, because the right, on which the appellant is basing
his chum, is sought to be justified under r. 37 of the Rules.
Learned counsel for the State, in view of these two decisions,
urged before us that we should hold that r. 3 7 of the Rules was
void as contravening the principle laid down by s. 340, CF. P.C.,
explained in the two cases referred to above.
We are unable to
appreciate this argument. Section 340, Cr. P.C., does net prohibit the appointment of a counsel by the Court at State expense,
though it does not prescribe such an appointment as a mandatory
direction to be carried out by the Court. Rule 3 7 of the Rules.
only supplements the provision contained in s. 340, Cr. P.C.,
anct is, therefore, in no way in conflict with s. 340, Cr. P.C., and
it cannot be held that it is void on any such ground.
We have already quoted ab.ove r. 37 of the Rules in full.
The grievance on behalf of the appellant is not that no counsel
at. all was engaged to represent him in the Court of Session; but
non-compliance with the Rule is urged on the ground that there
was breach of the last clause of that Rule. That clause requires
that the counsel appointed under the Rules shall be furnished
with necessary papers free of cost and allowed sufficient time to
prepare for the defence. In this case, the facts mentioned by us
earlier clearly show that Sri Shukla was appointed counsel for
the appellant on 28th February, 1967, which was the 'date fixed
for starting the trial, and the trial was, in fact, started after his
appointment . on that very day.
Thus, sufficient time was not
allowed to him to prepare for the defence of the appellant. At
one stage, information was attempted to be given to this Court
on behalf of the State Government on the basis of entries in the
register maintained for appointment of amicus curiae counsel that,
in fact, Sri Shukla had been appointed to represent the appellant
on 18th February 1967. That register was sent for by us and
it appears that this position was taken on behalf of the State
Government, because, at one place in that register, the date showing appointment of Sri Shukla· as counsel for the appellant was
so entered that it could be read . as 18th February 1967 as well
as 28th February 1967. There were however other entries in
the register which clarified the positi~n ant! indicated that even
th[ct date must be read as 28th February 1967 and learned coun-
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38
SUPREME COURT REPORTS
[ 1969) I S.C.R.
sei for the State conceded that the appointment of the am1c11s
curiae counsel wa~, in fact, made on 28th February, 1967.
Them is nothing on the record to show that, after his appoint-
.mcnt as counsel for the appellant, Sri Shukla was given sufficient
time to prepare the defence. The order-sheet maintained by the
Judge seems to indicate that, as soon as the counsel was appointed,
the charge was read out to the accused and, after his plea had
been recorded, examination of witnesses began. The counsel, of
course, did his best to cross-examine the witnesses to ihc extent it
was possible for him to do in the very short time available to him.
It is true that the record aL~o docs not contain any note trat the
counsel asked for more time to prepare the defence, but that, in
·our opinion, is immaterial. The Rule casts a duty on the c9urt
itself to grant sufficient time to the counsel for this purpose and
the record should show that the Ruic was
complied
with by
gr:.nting him time which the court considered sufficient in the
particular circumstances of the case.
In this case, the record
seems to show that the trial was proceeded with immediately
.after appointing the amicus curiae counsel and that, in fact, if
any time at all was granted, it was nominal. In these circumstances, it must be held that there was no compliance with the
requirements of this Ruic.
Jn this connection, we may refer to the decisions of two of
the High Courts where a similar situation arose.
In Re: Alla
Nageswara Roo, Petitioner(') reference was made to Rule 228
.of the Madras Criminal Rules of Practice which provided for
engaging a pleader at the cost of the State to defend an accused
pctson in a case where a sentence of death could be passed. It
was held by Subba Rao. Chief Justice as he then was, speaking
for the Bench, that :
"a mere formal compliance with this Rule will not
carry out the object underlying the rule.
A sufficient
time should be given to the advocate engnged on behalf
of the accused .to prepare his ca~e and conduct it on
behalf of bis client.
We arc satisfied that the
tin1e
given was insufficient and, in the circumstances, no real
opportunity was given to the accused to defend himself.''
This view was expressed on the basis of the fact found that the
advocate had been engaged for the accused two hours prior to
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the trial.
In Mathai Tlwmmen v. State('), the
Kcrala
High
Court was dealing with a Sessions trial in which the counsel was
engaged to defend the accused on 2nd August, 1958, w'ien the
H
trial was posted to bfgin on 4th August, 1958.
showing that
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(1) A.LR. 1957 A.P. 505.
(2) A.LR. 1959 Kcrala 241.
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BASHIRA v. STATE OF U.P. (Bhargava, J.)
39
barely more than a day was allowed to the counsel to g~t prepared
and obtain instructions from the accused.
Commenting on the
procedure adopted by the Sessions Court, the High Court finally
expressed its opinion by saying :
';Practices like this would reduce to a
farce
t:ie
engagement of counsel under rule 21 of the Criminal
Rules of Practice which has been made for the purpose
of effectively carrying out the duty cast on courts of
law to see that no one is deprived of life and liberty
without a fair and reasonable opportunity being afforded
to hm to prove his innocence.
We consider that in
cases like this counsel should be engaged at least some
10 to 15 days before the trial and should also be furnished with copies of the records."
In our opinion, no hard and fast rule can be laid down as to the
time. which must elapse between the appoint~ent of Jie counsel
and the beginning of the trial; but, on the curumsiances of each
ca~e, the Court of Session must ensure that !he time granted to
the counsel is sufficient to prepare for the defeL~e. In the present case, when the counsel was appointed just before the trial
started, it is clear that there was failure to comply with the
requirements of the rule of procedure in this behalf.
Learned counsel for the State urged before us that we should
not hold that the award of the sentence of death to the appellant
in this case is in breach of the fundamental rigl).t conferred by
Art. 21 of the Constitution, beg,__use, he submitted, r. 37 of the
Rules was not enacted by any legislature and, consequently, it
should not be held to be a part of the procedure established by
law.
In this connection, he relied on the view expressed .. by
Kania, CJ., in A. K. Gopalan v. The State of Madras( 1 ), where
he held:-
"No extrinsic aid is needed to interpret the words of
article 21, which in my opinion, are not ambiguous.
llformally read, and without thinking of other CoClstitutions, the expression 'procedure prescribed by law'
must mean procedure prescribed. by the law of the
State."
'
This interpretation was given in order to exclude from the scope
of Art. 21 rules of natural justice which are not incorporated in
any law. Proceeding further, he dealt with the language of Art.
31 where the expression used is "by authority of law" and held :
"It is obvious that in that clause 'law' must mean
enacted law".
•
(!) [1950) S.C.R. 88, 111-12.
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SUPREME COt.;RT REPORTS
[ 1969] I S.C.R.
We do not think that, in expressing these views, the learned Chief
Justice intended to explain the full scope of the word "law" as
used in Art. 21.
What he was concerned with was to examine
whether rules of natural justice could also be covered by that
word in this article and he held that this will not be justified.
In later cases, the Court has clarified the position and has held
that the word "law" in Art. 21 includes subordinate legislation
not enacted by the legislature, but promulgated by the delegated
authority in exercise of its statutory powers.
Thus, in Maqbool
Hussain v. The State of Bombay & Connected Cases('), the Punjab Communist Detenus Rules, J 950 framed by the Government
of Punjab under section 4 (a) of the Preventive Detention Act,
1950 were held to be covered by the word "law".
In Pandit
M. S. M. Sharma v. Shri Sri Krishna Sinha and Others,(') Rules
made by the Legislature under Arts. 118 ( 1) and 208 ( 1) and
the privileges of each House under Arts. 105(3) and 194(3)
were held to be law justifying deprivation of personal liberty
guaranteed by Art. 21. In the case of Makhan Singh v. State of
P11111ab & Connected Appeals('), the Defence of India Rules
made by the Central Government under section 3 of the Defence
of India Ordinance, 1962 were held to be "law" for purpo>es of
Article 21. Thus, this Court has clearly laid it down that Rules
made by a subordinate legislative authority in exercise
of
its
delegated power of legislation granted by the Constitution or a
Statute enacted by the lei;islaturc arc "law" for purposes of Art.
21, though, of course, it is always open to the person affected to
challenge the validity of those Rules.
In the present case, we
have already
held that r. 37 of the Rules has been framed in
exercise of the powers of the High Court under Art. 227 of the
Constitution and section 554 of the Code of Criminal Procedure,
and is a valid Rule.
In these circumstances, the conviction of
the appellant in a trial held in violation of that Ruic and the
award of sentence of death will result in the deprivation of his
life in breach of the procedure established by law.
Learned counsel also urged that we should not hold the conviction and sentence to be void when it is not shown that there
was any prejudice to the appellant by the failure of the court to
observe the procedure laid down by the Rule.
In our opinion,
in such a case. the question of prejudice does not arise when a
citizen is deprived of his life without complying with the procedure
prescribed by law.
We may. however, add that, in this case, the
facts indicate that there was. in foct, prejudice to the accused
caused by the non-compliance with the requirement of r. 37 of
the Rules.
The two principal witnesses.
Naziran
and
Khan
Bahadur, were examined immediately after the appointment of
(i}[i95i-1s.c.R. 730.
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(2) l19S9) Supp. I SC.R. 806.
(J) [1%4] .1 S.C.R. 7'17 .
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B
c
D
E
F
G
H
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A
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B
c
BASHIRA v. STATE OF U.P. (Bhargava, J.)
4l
amicus curiae counsel and the application presented on behalf of
the accused on 10th March, 1967, to which we have referred above
clearly shows that the counsel felt that he had not been able to
cross-examine at least the sole eye-witness Khan Bahadur properly.
That is why he presented an application for recall of that witness.
It is obvious that, in rejecting that application, the Sessions ~udge
failed to notice that the counsel had been appointed on the very
day when that witness was examined and suflicient time had not
been granted to him to prepare the defence.
In fact, we feel
that, in such cases, if sufficient time is not granted to the counsel
to prepare defence, prejudice must nece§sarily be inferred and
the trial will be vitiated.
As a consequence, we set aside the conviction and sentence
of the appellant.
Since we are holding that the conviction is
void because of an error in the ~rocedure adopted at the trial,
we direct that the appellant shall be tried afresh for this charge
after complying with the requirements of law, so that the case is
remanded to the Court of Session for iliis purpose.
D
V.P.S.
Appeal allowed and retrial order .
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L!OSup. C. I. /68-4
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