# MOHD. HUSSAIN @ JULFIKAR ALI v. THE STATE (GOVT. OF NCT) DELHI

- **Citation:** [2012] 1 S.C.R. 64
- **Court:** Supreme Court of India
- **Decided:** 2012-01-11
- **Case number:** Criminal Appeal No. 1091 of 2006
- **Bench:** H.L. Datiu, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-hussain-julfikar-ali-v-the-state-govt-of-nct-delhi-28086
- **Pages:** 64

## Headnote

Penal Code, 1860 - ss. 3021307 - Explosives Substances
Act, 1908 - s. 3 - Explosion in bus - Death of 4 persons and
C 24 persons sustained serious injuries - Capital punishment -
Conviction of appellant alongwith death sentence for offences
ulss. 3021307 and s. 3 of the 1908 Act by the courts below -
Challenged, on the ground that he was not given the
assistance of a lawyer to defend himself during the trial - Held:
o In view of difference of opinion as regards the issue whether
the matter requires to be remanded for de novo trial of the
appellant after giving him the assistance of a counsel, matter
referred to the larger Bench.
E
An explosion took place inside a bus in which four
passengers died and 24 persons sustained serious
injuries. Investigations were carried out and on the basis
of the information received suspicion arose as to
involvement of the appellant, national of Pakistan in the
incident. The appellant was convicted and sentenced to
F death for commission of offences under Sections 302/307
IPC and Section 3 of the Explosives Substances Act,
1908 by the trial court. The trial court filed a Reference
for confirmation of death sentence. The High Court
allowed the Reference and dismissed the appeal filed by
G the appellant.
The appellant pleaded before the trial court as also
the High Court that he was not given a fair and impartial
trial and was denied the right of a counsel. During the
H
64
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
65
OF NCT) DELHI
committal proceedings before the Magistrate, the
A
appellant was assisted by counsel 'V' employed by the
State. When the case was committed to the Court of
Sessions, counsel 'F' was employed by the State to
assist the appellant but he disappeared from the scene
before the conclusion of the trial. The court did not
B
appoint any counsel to defend his case. Examination of
56 witnesses including the eye-witnesses and the
investigating officer was done when accused was not
represented by an advocate. None of the 56 witnesses
were cross-examined by the appellant. During the last c
stages of the trial a counsel was appointed. She filed an
application to cross-examine only one of the prosecution
witnesses and the same was allowed.
Therefore, the appellant filed the instant appeal.
Referring the matter to the larger Bench, the Court
HELD:
Per Dattu J:
D
1.1. The records would disclose that during the
committal proceedings before the Magistrate, the
appellant was assisted by a counsel 'V' employed by the
State. He continued till the case was committed to the
Court of Sessions Judge. Before the said court, 'F' was
F
employed by the State to assist the appellant. He
participated in the proceedings before the Sessions
Judge only on few days of the trial. After he stopped
attending the proceedings, that too at the fag end of the
trial, another counsel was appointed to assist the G
appellant. The record further discloses that immediately,
on completion of the investigation, a charge .sheet
punishable under Section 302/307/120-B of the IPC read
with Section 3/4/5 of the Explosive Substances Act was
filed in the court of Metropolitan Magistrate against the
H
66
SUPREME COURT REPORTS
[2012) 1 S.C.R.
A appellant and others by the prosecuting agency. After
completing the necessary formalities, the case was
committed to the Court of Sessions by the Metropolitan
Magistrate. The Sessions Judge, after discharging the
other accused persons, had framed charges against the
B appellant under Section 302/307 of the IPC read with
Section 3/4 of the Explosive Substances Act, to which,
the a'lpellant denied his guilt and claimed to be tried. The
appellant was initially assisted by a counsel employed by
the Sessions Judge. However, in the mid way, the
c counsel disappeared from the scene, that is, before
conclusion of the trial. It is apparent from the records that
he was not asked whether he is able to employ counsel
or wished to have counsel appointed. When the parties
were ready for the trial, n

## Text

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A
B
[2012] 1 S.C.R. 64
MOHD. HUSSAIN @ JULFIKAR ALI
v.
THE STATE (GOVT. OF NCT) DELHI
(Criminal Appeal No. 1091 of 2006)
JANUARY 11, 2012
[H.L. DATIU AND CHANDRAMAULI KR. PRASAD, JJ.]
Penal Code, 1860 - ss. 3021307 - Explosives Substances
Act, 1908 - s. 3 - Explosion in bus - Death of 4 persons and
C 24 persons sustained serious injuries - Capital punishment -
Conviction of appellant alongwith death sentence for offences
ulss. 3021307 and s. 3 of the 1908 Act by the courts below -
Challenged, on the ground that he was not given the
assistance of a lawyer to defend himself during the trial - Held:
o In view of difference of opinion as regards the issue whether
the matter requires to be remanded for de novo trial of the
appellant after giving him the assistance of a counsel, matter
referred to the larger Bench.
E
An explosion took place inside a bus in which four
passengers died and 24 persons sustained serious
injuries. Investigations were carried out and on the basis
of the information received suspicion arose as to
involvement of the appellant, national of Pakistan in the
incident. The appellant was convicted and sentenced to
F death for commission of offences under Sections 302/307
IPC and Section 3 of the Explosives Substances Act,
1908 by the trial court. The trial court filed a Reference
for confirmation of death sentence. The High Court
allowed the Reference and dismissed the appeal filed by
G the appellant.
The appellant pleaded before the trial court as also
the High Court that he was not given a fair and impartial
trial and was denied the right of a counsel. During the
H
64
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
65
OF NCT) DELHI
committal proceedings before the Magistrate, the
A
appellant was assisted by counsel 'V' employed by the
State. When the case was committed to the Court of
Sessions, counsel 'F' was employed by the State to
assist the appellant but he disappeared from the scene
before the conclusion of the trial. The court did not
B
appoint any counsel to defend his case. Examination of
56 witnesses including the eye-witnesses and the
investigating officer was done when accused was not
represented by an advocate. None of the 56 witnesses
were cross-examined by the appellant. During the last c
stages of the trial a counsel was appointed. She filed an
application to cross-examine only one of the prosecution
witnesses and the same was allowed.
Therefore, the appellant filed the instant appeal.
Referring the matter to the larger Bench, the Court
HELD:
Per Dattu J:
D
1.1. The records would disclose that during the
committal proceedings before the Magistrate, the
appellant was assisted by a counsel 'V' employed by the
State. He continued till the case was committed to the
Court of Sessions Judge. Before the said court, 'F' was
F
employed by the State to assist the appellant. He
participated in the proceedings before the Sessions
Judge only on few days of the trial. After he stopped
attending the proceedings, that too at the fag end of the
trial, another counsel was appointed to assist the G
appellant. The record further discloses that immediately,
on completion of the investigation, a charge .sheet
punishable under Section 302/307/120-B of the IPC read
with Section 3/4/5 of the Explosive Substances Act was
filed in the court of Metropolitan Magistrate against the
H
66
SUPREME COURT REPORTS
[2012) 1 S.C.R.
A appellant and others by the prosecuting agency. After
completing the necessary formalities, the case was
committed to the Court of Sessions by the Metropolitan
Magistrate. The Sessions Judge, after discharging the
other accused persons, had framed charges against the
B appellant under Section 302/307 of the IPC read with
Section 3/4 of the Explosive Substances Act, to which,
the a'lpellant denied his guilt and claimed to be tried. The
appellant was initially assisted by a counsel employed by
the Sessions Judge. However, in the mid way, the
c counsel disappeared from the scene, that is, before
conclusion of the trial. It is apparent from the records that
he was not asked whether he is able to employ counsel
or wished to have counsel appointed. When the parties
were ready for the trial, no one appeared for the accused.
0 The Court did not appoint any counsel to defend the
accused. Of course, if he had a defence counsel, it was
not necessary for the court appointing anybody as a
counsel. If he did not have a counsel, it is the mandatory
duty of the court to appoint a counsel to represent him.
The record reveals that the evidences of 56 witnesses,
E out of the 65 witnesses, examined by the prosecution in
support of the indictment, including the eye witnesses
and the Investigating Officer, were recorded by the trial
court without providing a counsel to the appellant. The
record also reveals that none of the 56 witnesses were
F cross-examined by the accused/appellant. It is only
thereafter, the wisdom appears to have dawned on the
trial court to appoint a counsel on 04.12.2003 to defend
the appellant. The evidences of the prosecution
witnesses from 57 to 65 were recorded in the presence
G of the freshly appointed counsel, who thought it fit not
to cross-examine any of those witnesses. Before the
conclusion of the trial, she had filed an application to
cross-examine only one prosecution witness and that
prayer in the application had been granted by the trial
H court and the counsel had performed the formality of
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
67
OF NCT) DELHI
cross-examining this witness. In this casual manner, the
A
trial, in a capital punishment case, was concluded by the
trial court. It would, thus, be seen that the trial court did
not think it proper to appoint any counsel to defend the
appellant/accused, when the counsel engaged by him did
not appear at the commencement of the trial oor at the
B
time of recording of the evidence of the prosecution
witnesses. The accused did not have the aid of the
counsel in any real sense, althoi.tg_!l, he was as much
entitled to such aid during the period of trial. The record
indicates that the appointment of counsel and her c
appearance during the last stages of the trial was rather
proforma than active. It cannot seriously be doubted at
this late date that the right of cross-examination is
included in the right of an accused in a criminal case, to
confront the witnesses against him not only on facts but 0
also to discredit the witness by showing that his
testimony-in-chief was untrue and unbiased. [Paras 8 and
9] [97-D-H; 98-A-H; 99-A-B]
1.2. Every person has a right to a fair trial by a
competent court in the spirit of the right to life and
E
personal liberty. The object and purpose of providing
competent legal aid to undefended and unrepresented
accused persons are to see that the accused gets free
and fair, just and reasonable trial of charge in a criminal
case. [Para 11] [100-D-E]
F
1.3. The prompt disposition of criminal cases is to be·
commended and encouraged. But in reaching that result,
the accused charged with a serious offence must not be
stripped of his valuable right of a fair and impartial trial.
G
To do that, would be negation of concept of due process
of law, regardless of the merits of the appeal. The Cr.P.C.
provides that in all criminal prosecutions, the accused
has a right to have the assistance of a counsel and the
Cr.P.C. also requires the court in all criminal cases, where
H
68
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A the accused is unable to engage counsel, to appoint a
counsel for him at the expenses of the State. Howsoever
guilty the appellant upon the inquiry might have been, he
is until convicted, presumed to be innocent. It was the
duty of the court, having these cases in charge, to see
B that he is denied no necessary incident of a fair trial. In
the instant case, not only the accused was denied the
assistance of a counsel during the trial and such
designation of counsel, as was attempted at a late stage,
was either so indefinite or so close upon the trial as to
C amount to a denial of effective and substantial aid in that
regard. The court ought to have seen to it that in the
proceedings before the court, the accused was dealt with
justly and fairly by keeping in view the cardinal principles
that the accused of a crime is entitled to a counsel which
may be necessary for his defence, as well as to facts as
D to law. The same yardstick may not be applicable in
respect of economic offences or where offences are not
punishable with substantive sentence of imprisonment
but punishable with fine only. The fact that the right
involved is of such a character that it cannot be denied
E without violating those fundamental principles of liberty
and justice which lie at the base of all the judicial
proceedings. The necessity of counsel was so vital and
imperative that the failure of the trial court to make an
effective appointment of a counsel was a denial of due
F process of law. It is equally true that the absence of fair
and proper trial would be violation of fundamental
principles of judicial procedure on account of breach of
mandatory provisions of Section 304 Cr.P.C. [Para 17)
[111-H; 112-A-G]
G
1.4. After -carefully going through the entire records
of the trial court, it is found that the appellant/accused
was not provided the assistance of a counsel in a
substantial and meaningful sense. To hold a'nd decide
H otherwise, would simply to ignore actualities and also
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
69
OF NCT) DELHI
would be to ignore the fundamental postulates, already
A
adverted to. [Para 18] [112-G-H; 113-A]
1.5. The submission that since no prejudice is caused
to accused in not providing a defence counsel, this Court
need not take exception to the trial concluded by the
8
Sessions Judge and the conviction and sentence passed
against the accused, cannot be accepted. The Cr.P.C.
ensures that an accused gets a fair trial. It is essential that
the accused is given a reasonable opportunity to defend
himself in the trial. He is also permitted to confront the
C
witnesses and other evidence that the prosecution is
relying upon. He is also allowed the assistance of a
lawyer of his choice, and if he is unable to afford one, he
is given a lawyer for his defence. The right to be defended
by a counsel is a principal part of the right to fair trial. If
these minimum safeguards are not provided to an
D
accused; that itself is "prejudice" to an accused. [Para
19] [113-8-E]
Rafiq Ahmad alias Rafi vs. State of UP. (2011) 8 SCC
300 - referred to.
E
1.6. The judgments impugned cannot be sustained.
The conviction and sentence imposed by the Additional
Sessions Judge is set aside and the judgment and order
passed by the High Court and remand the case to the trial
court for fresh disposal in accordance with law with a
F
specific direction that the trial court would assist the
accused by employing a State counsel before the
commencement of the trial till its conclusion, if the
accused is unable to employ a counsel of his own
choice. Since the incident is of the year 1997, the trial
G
court is directed to conclude the trial as expeditiously as
possible at any rate within an outer limit of three months
from the date of communication of this order and report
the same to this Court. [Para 21] [115-D-E]
H
70
SUPREME COURT REPORTS
(2012] 1 S.C.R
A
Kartar Singh vs. State of Punjab (1994) 3 SCC 569:
1994 (2) SCR 375; Jayendra Vishnu Thakur Vs. State of
Maharashtra (2009) 7 SCC 104: 2009 (8) SCR 591; Zahira
Habibullah Sheikh (5) vs. State of Gujarat (2006) 3 SCC 37 4:
2006 (2 ) SCR 1081; M. H. Hoskot vs. State of Maharashtra
B 1978 (3) sec 544: 1979 (1) SCR 192; Mohd. Sukur Ali vs.
State of Assam (2011) 4 SCC 729: 2011 (3) SCR 209;
Hussainara Khatoon and Ors. vs. Home Secy., State of Bihar
(1980) 1 SCC 98 :1979 (3) SCR 532; Khatri Vs. State of Bihar
(1981) 1 SCC 627: 1981 (2) SCR 408; Ram Awadh vs. State
c of U.P. 1999 Cr.L.J. 4083 - referred to.
Per Chandramauli Kr. Prasad, J:
1.1. The trial court, during all this long period, did not
realize that the appellant was not represented by any
D counsel and it is on 4th December, 2003 the appellant
brought to the notice of the trial court that for the last
several dates, the counsel appointed by the court was not
present and thus, a new counse.I be appointed. It is on
the appellant's prayer that 'SB', Advocate present in the
E court on the said date, was appointed to defend the
appellant at the expenses of the State. Thereafter, on
22nd December, 2003, in the presence of said 'SB',
counsel for the appellant, evidences of doctors-P.W.57
and 58; and P.W.59- ASI were recorded. Thereafter, the
F statements of the witnesses from P.Ws.60 to 65 were
recorded in the presence of appellant's counsel, 'SB'.
Ultimately the statement of the appellant was recorded on
6th October, 2004 and argument on behalf of prosecution
was heard in part. Next hearing took place on 8th
G October, 2004 when the argument on behalf of the
prosecution was concluded and the case was adjourned
to 12th October, 2004 for dP.fence argument. During all
this period the appellant was in custody. It is only when
the argument on behalf of the appellant was to be heard,
H
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
71.
OF NCT) DELHI
counsel representing him later i.e. 'SB' realized that the
A
witnesses were examined and discharged without crossexamination in the absence of the defence counsel and
accordingly, an application was filed for recall of P.W.1
for cross-examination. The said prayer was allowed and
P.W.1 was cross-examined and discharged on 23rd
B
October, 2004. The trial court recorded on said date that
the accused had not prayed for cross-examination of any
other witness and accordingly, it heard the argument and
posted the case for judgment on 26th October, 2004. The
appellant was held guilty and sentenced. [Para 7] [118- c
G-H; 119-A-F]
1.2. While holding the appellant guilty the trial court
has not only relied upon the evidence of the witnesses
who have been cross-examined but also relied upon the
evidence of witnesses who were not cross-examined.
D
The fate of the criminal trial depends upon the
truthfulness or otherwise of the witnesses and, therefore,
it is of paramount importance. To arrive at the truth, its
veracity should be judged and for that purpose crossexamination is an acid test. It tests the truthfulness of the
E
statement made by a witness on oath in examination-inc h ief. Its purpose is to elicit facts and materials to
establish that the evidence of witness is fit to be rejected.
The appellant in the instant case was denied this right
only because he himself was not trained in law and not
F.
given the assistance of a lawyer to defend him. Poverty
also came in his way to engage a counsel of his choice.
[Para 8] [119-G-H; 120-A-B]
1.3. The conviction and sentence can be inflicted only
on culmination of the trial which is fair and just. There is G
no manner of doubt that in the adversary system of
criminal justice, any person facing trial can be assured a
fair trial only when the co.unsel is provided to him. Its
roots are many and find places in manifold ways. It is
H
72
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A internationally recognized by covenants and Universal
Declaration of Human Rights, constitutionally guaranteed
and statutorily protected. [Para 9] [120-C-D]
1.4. Article 14 of the International Covenant on Civil
8 and Political Rights guarantees to the citizens of nations
signatory to that covenant various rights in the
determination of any criminal charge and confers on them
the minimum guarantees. Article 14(3)(d) entitles the
person facing the criminal charge either to defend himself
in person or through the assistance of a counsel of his
C choice and if he does not have legal assistance, to be
informed of his right and provide him the legal assistance
without payment in case he does not have sufficient
means to pay for it. It is accepted in the civilized world
without exception that the poor and ignorant man is
D equal to a strong and mighty opponent before the law.
But it is of no value for a poor and ignorant man if there
is none to inform him what the law is. In the absence of
such information that courts are open to him on the same
terms as to all other persons the guarantee of equality is
E illusory. The said International Covenant on Civil and
Political Rights guarantees to the indigent citizens of the
member countries the right to be defended and right to
have legal assistance without payment. Not only this, the
Universal Declaration ·on Human Rights ensures due
F process and Article 10 thereof provides that everyone is
entitled in full equality to a fair hearing by an independent
and impartial tribunal in the determination of his rights
and obligations and of any criminal charges against him.
Article 11 of Universal Declaration of Human Rights
G guarantees everyone charged with a penal offence all the
guarantees necessary for the defence. [Paras 10 and 11]
[120-E-F; 121-D-H; 122-A-B]
1.5. Article 21 of the Constitution of India commands
in emphatic terms that no person shall be deprived of his
H life or personal liberty except according to the procedure
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
73
OF NCT) DELHI
established by law and Article 22 (1) thereof confers on
A
the person charged to be defended by a legal practitioner
of his choice. Article 39 A casts duty on the State to
ensure that justice is not denied by .reason of economic
or other disabilities in the legal system and to provide free
legal aid to every citizen with economic or other
B
disabilities. [Para 12) [122-E-F]
1.6. Besides the International Covenants and
Declarations and the constitutional guarantees Section
303 Cr.P.C. gives right to any person accused of an
offence before a criminal court to b& defended by a C
pleader of his choice. Section 304 Cr.P.C. contemplates
legal aid to accused facing charge in a case triable by
Court of Sessions at State expense. From a plain reading
of Section 304 Cr.P.C., it is evident that in a trial before
the Court of Sessions if the accused is not represented
D
by a pleader and has not sufficient means, the court shall
assign a pleader for his defonce at the expense of the
State. The entitlement to free legal aid is not dependent
on the accused making an application to that effect, in
•
fact, the court is obliged to inform the accused of his right
E
to obtain free legal aid and provide him with the same.
[Para 13] [122-G-H; 123-A, G-H; 124-A]
1.7. The right of a person charged with crime to have
the services of a lawyer is fundamental and essential to
fair trial. The right to be defended by a legal practitioner,
F
flowing from Article 22 (1) of the Constitution has further
been fortified by the introduction of the Directive
Principles of State Policy embodied in Article 39 A of the
Constitution by the 42nd Amendment Act of 1976 and
enactment of sub-section 1 of Section 304 of the Code G
of Criminal Procedure. Legal assistance to a poor person
facing trial whose life and personal liberty is in jeopardy
is mandated not only by the Constitution and the Code
of Criminal Procedure but also by International
Covenants and Human Rights Declarations. If an accused
H
74
SUPREME COURT REPORTS
[2012) 1 S.C.R.
A too poor to afford a lawyer is to go thorough the trial
without legal assistance, such a trial cannot be regarded
as reasonable, fair and just. The right to be heard in
criminal trial would be inconsequential and of no avail if
within itself it does not include right to be heard through
B counsel. One cannot lose sight of the fact that even
intelligent and educated men, not trained in law, have
more than often no skill in the science of law if charged
with crime. Such an accused not only lacks both the skill
and knowledge adequately to prepare his defence but
c many a time looses his equilibrium in face of the charge.
A guiding hand of counsel at every step in the
proceeding is needed for fair trial. If it is true of men of
intelligence, how much true is it of the ignorant and the
illiterate or those of lower intellect! An accused without
0 the lawyer faces the danger of conviction because he
does not know how to establish his innocence. [Para 14)
[124-8-G]
1.8 The accused is a Pakistani and seems illiterate.
He asked for engagement of a counsel to defend him at
E State expenditure which was provided but unfortunately
for him the counsel so appointed remained absent and
a large number of witnesses have been examined in the
absence of the counsel. Those witnesses have not been
cross-examined and many of them have been relied upon
F for holding the appellant guilty. The judge in seisin of the
trial forgot that he has an overriding duty to maintain
public confidence in the administration of justice, often
referred to a duty to vindicate and uphold the majesty of
law. He failed to realize that for an effective instrument in
G dispensing justice he must cease to be a spectator and
a recording machine but a participant in the trial evincing
·intelligence and active interest so as to elicit all relevant
materials necessary for reaching the correct conclusion,
to find out the truth and administer justice with fairness
H and impartiality both to the parties and to the community
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
75
OF NCT) DELHI
itself. Fundamental principles based on reason and
A
reflection in no uncertain term recognize that the
appellant haled into court in the adversary system of
criminal justice and ultimately convicted and sentenced
without a fair trial. [Para 15) [124-H; 125..A-D]
B
Hussainara Khatoon & Ors. v. Home Secy. State of Bihar
(1980) 1 sec 98:1979 (3) SCR 532- referred to.
1.9. The direction for his de novo trial cannot be
given at such a distance of time. For an occurrence of
1997, the appellant was arrested in 1998 and since then
C
he is in judicial custody. The charge against him was
framed on 18.02.1999 and it took more than five years for
the prosecution to produce its witnesses. True it is that
in the incident four persons have lost their lives and
several innocent persons have sustained sev~ injuries.
C
Further, the crime was allegedly committed by a Pakistani
but these factors do not cloud the reason. After all, India
is a democratic country and governed by rule of law. The
appellant must be seeing the hangman's noose in his
dreams and dying every moment while awake from the
E
day he was awarded sentence of death, more than seven
years ago. The right of speedy trial is a fundamental right
and though a rigid time limit is not countenanced but in
the facts of the instant case, after such a distance of time
it would be travesty of justice to direct for the appellant's
de novo trial. By passage of time, it is expected that many
of the witnesses may not be found due to change of
address and various other reasons and few of them may
not be in this world. Thus, any time limit to conclude the
trial would not be pragmatic. [Para 16) [126-B-F]
1.10. The conviction and sentence of the appellant is
vitiated, not on merit but on the ground that his trial was
not fair and jusl [Para 17] [126-G]
F
G
H
76
SUPREME COURT REPORTS
[2012] 1 S.C.R.
A
1.11. Appellant admittedly is a Pakistani, he has
admitted this during the trial and in the statement under
Section 313 of the Code of Criminal Procedure. His
conviction and sentence is found illegal and the natural
consequence of that would be his release from the prison
B but in the facts and circumstances of the case, it is
directed that he be deported to his country in accordance
with law and till then he would remain in jail custody.
Appellant's conviction and sentence is set aside with the
aforesaid direction. [Paras 18 and 19] [126-H; 127-A-B]
c
Case Law Reference:
Per H.L. Dattu J
1994 (2) SCR 375
Referred to.
Para 9
D
2009 (8) SCR 591
Referred to.
Para 10
2006 (2) SCR 1081
Referred to.
Para 11
1979 (1) SCR 192
Referred to.
Para 12
E
2011 (3) SCR 209
Referred to.
Para 13
1979 (3) SCR 532
Referred to.
Para 14
1981 (2) SCR 408
Referred to.
Para 15
1999 Cr.L.J. 4083
Referred to.
Para 16
F
(2011 > 8 sec 300
Referred to.
Para 19
Per Chai1dramauli Kr. Prasad J
1979 (3) SCR 532
Referred to.
Para 15
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1091 of 2006.
From the Judgment & Order dated 04.08.2006 of the High
Court of Judicature at Delhi Bench in Criminal Appeal No. 41
H of 2005.
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 77
OF NCT) DELHI
Md. Mobin Akhtar, Arun Kumar Beriwal for the Appellant.
A
J.S. Airy, V.K. Biju, Rahul Kaushik, Anil Katiyar, D.S.
Mahra for the Respondent.
The Judgments & order of the Court was delivered by
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H. L. DATIU, J. 1. A convict, who is facing the threat of
death gallows, is before us in this appeal. He is an illiterate
foreign national and unable to engage a counsel to defend
himself. He is tried, convicted and sentenced to death by the
Additional Sessions Judge, Delhi in Sessions Case No.122 of C
1998 dated 03.11.2004 without assignment of counsel for his
defence. Such a result is confirmed by the High Court on a
reference made by the Trial Court for confirmation of death
sentence and has dismissed the appeal filed by the appellant
vide its order dated 04.08.2006.
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2. The convict, (hereinafter referred to as "appellant") is
charged, convicted and sentenced under Sections 302/307 of
Indian Penal Code (in short, "IPC") and also under Section 3
of The Explosive Substances Act, 1908. The case of the
prosecution, as noticed by the High Court, which appears to
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be accurate statement of facts, proceeds on these lines :
"2. On 30-12-1997 at about 6.20 p.m. one blueline bus
No.DL-IP-3088 carrying passengers on its route to Nangloi
from Ajmeri Gate stopped at the Ram Pura Bus Stand on
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Rohtak Road for passengers to get down. The moment that
bus stopped there an explosion took place inside the bus
because of which its floor got ripped apart. Four
passengers of that bus, namely, Ms. Tapoti, Taj Mohd.
Narain Jha and Rajiv Verma died and twenty four G
passengers including the conductor of that bus were
injured due to that explosion. Two policemen (PWs 41 &
52) were on checking duty at that but stop at the time of
blast. On their informing the local police station police
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team reached the spot. Crime team and bomb disposal
squad were also called and the damaged bus was
inspected and from the spot debris etc. were lifted and
sealed.
3. On the basis of the statement of Head Constable
Suresh (PW-41), who was one of the two policemen on
duty at the bus stop of Rampura, a case under Section 307
IPC and Section 3, 4 and 5 of the Explosive Substances
Act was registered at Punjabi Bagh police station.
Investigation commenced immediately. With the death of
some of the injured persons on the day of the incident itself
Section 302 IPC was also added. Hunt for the culprits
responsible for that macabre incident also started.
However, for over two months nobody could be nabbed.
4. It appears that as a result of different incidents of bomb
blasts in Delhi including the present one the intelligence
agencies became more active and started gathering
information about the incidents of bomb blasts in the city.
It came to light that some persons belonging to terrorist
organizations were actively operating in the city of Delhi
for causing terror by killing innocent people and causing
damage to public property by exploding bombs. On the
basis of secret information the police raided some houses
in different parts of Delhi on 27.02.1998 and from those
houses hand grenades and material used for making
bombs was recovered in large quantity. The chemicals
recovered were sent to CFSL, which confirmed that the
same were potassium chlorate and sulphuric acid and
were opined to be constituents of low explosives. Some
persons were arrested also and during interrogation they
had disclosed to the police that they were members of a
terrorist organization and their aim was to create terror and
panic in different parts of the country by exploding bombs
to take revenge for the killings of innocent muslims (sic.)
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
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OF NCT) DELHI [H.L. DATIU, J.]
in India and further that they had come to India for Jehad. A
On 27.02.1998 itself the police had registered a case vide
FIR No.49 of 1998 under Sections 121/121-A IPC and
Sections 3, 4 & 5 of the Explosive Substances Act as well
under Section 25 of the Arms Act at Main Delhi Railway
Station. On the basis of information provided by the B
apprehended terrorists the police made more arrests
including that of one Mohd. Hussain (who now is the
appellant before us in Crl. A. No.41 of 2005 and reference
to him will now onwards be made as 'the appellant'). The
appellant was apprehended when his house in Lajpat c
Nagar was raided pursuant to the information given by
other apprehended terrorists. As per the prosecution case
the appellant himself had opened the door on being
knocked by the police and on seeing the police party he
had tried to fire at the policemen from the pistol which he D
was having in his hand at that time but could not succeed
and was apprehended. His pistol was seized. It appears
that during the interrogation by the police the appellant and
three more persons, namely, Abdul Rehman, Mohd. Ezaz
Ahmed and Mohd. Maqsood confessed about their E
involvement in the present incident of bomb blast in the bus
on 30.12.1997. That information was then passed over to
Punjabi Bagh police station on 18.03.1998 by the Crime
Branch and accordingly all these four persons were
formally arrested for the present case also on 21.3.1998
for which date the investigating officer of the present case
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had sought their production in court by getting issued
production warrants from the court seized of the above
referred case of FIR No.49/1998. The investigating officer
moved an application before the concerned court on the
same day for holding of Test Identification Parade (TIP) in G
respect of the appellant in view of the suspicion expressed
by PW-1 Darshan Kumar, the conductor of the bus
involved in the blast regarding one passenger who hact -
boarded his bus from Paharganj bus stop along with a
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rexine bag for going to Nangloi but instead of going upto
Nangloi he had got down from the bus at Karol Bagh
leaving his rexine bag underneath the seat which he had
taken and which was near the seat of the conductor. The
conductor had given the description of that passenger. As
per the prosecution case the explosion had taken place
below that seat which that passeng.er had occupied and
underneath which he had kept his rexine bag. Although on
21-03-98 the appellant did not object to holding of
identification parade but he refused to joint test
identification parade which was fixed for 23-03-98 stating
that police had taken his photographs.
5. During the investigation of the present case the debris
collected from the place of bomb blast and some
damaged pieces of the bus etc. were sent to Central
Forensic Laboratory (CFSL) and after examination it was
revealed that in the seized material contained explosive
mixture of chlorate, Nitrate, Sulphate and sugar were
detected. Mixture of these chemicals, as per CFSL, report
Ex. PW-34/A, is used for making explosives/bombs and
the mixture could have been initiated by the action of
sulphuric acid and the mixture was "explosive substance".
6. On completion of investigation of the present case the
police filed a charge-sheet in Court against four accused
persons for the commission of offences under Sections
302/307/120-B IPC and Sections 3 and 4 of the Explosive
Substances Act. In due course the four persons were
committed to Sessions Court. The learned Additional
Sessions Judge vide order dated 18.2.1999 discharged
three accused persons namely, Abdul Rehman, Mohd.
Maqsocid and Ezaz Ahmed while against fourth accused
Mohd. Hussain @ Julfikar (the appellant herein) charges
under Sections 302/307 IPC and Section 3 and in the
alternative u/s 4(b) of the Explosive Substances Act were
framed. The appellant had pleaded not guilty to the
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
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OF NCT) DELHI [H.L. DATTU, J.]
charges framed against him and claimed to be tried."
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3. The prosecution had examined as many as 65
witnesses and on conclusion of prosecution evidence,
statement of the appellant was recorded under Section 313 of
the Code of Criminal Procedure (in short, "Cr.P.C"), who had
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denied his guilt and pleaded false implication. The Trial Court,
upon appreciation of evidence of the prosecution witnesses,
held the appellant guilty of the charges and accordingly,
imposed death penalty. The conviction and sentence is affirmed
by the High Court. At this stage itself, it is relevant to notice that C
the appellant had pleaded, both before the Trial Court and the
High Court, that he was not given a fair and impartial trial and
he was denied the right of a counsel. The High Court has
noticed this contention and has answered against the appellant.
In the words of the High Court :
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"45. Faced with this situation Mr. Luthra came out with an
arguments that this case, in fact, needs to be remanded
back to the trial back for a fresh trial because the trial court
record would reveal that the accused did not have a fair
trial inasmuch as on most of the hearing when material
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witnesses were examined he was unrepresented and the
trial court did not bother to provide him legal aid at State
expense and by not doing that the Trial Court, in fact, failed
to discharge its pious duty of ensuring that the accused ·
was defended properly and effectively at all stages of the
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trial either by his private counsel or in the absence of
private counsel by an experienced and responsible amicus
curiae. Mr. Luthra also submitted that, in fact, the learned
Additional Ses&ions Judge himself should have taken
active part at the time of recording of evidence of G
prosecution witnesses by putting questions to the
witnesses who had been examined in the absence of
counsel for the accused. It was contended that the right of .
the accused ensured to him under Articles 21 and 22 of
the Constitution of India for a fair trial has been, thus,
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violated. In support of this argument which, in fact, appears
to us to be the sheet anchor for the appellant, Mr. Siddharth
Lutha cited some judgments also of the Hon'ble Supreme
Court which are reproduced as AIR 1997 SC 1023, 1994
Supp. (3) sec 321, AIR 1986 sc 991and1983 (Ill) sec
307. Onejudgment of Gauhati High Court reported as 1987
(1) Crimes 133, "Arjun Karmakar Vs. State of Assam"was
also relied upon by Mr. Luthra.
46. There can be no dispute about the legal proposition
put forward by the learned counsel for the appellant that it
is the duty of the Court to see and ensure that an accused
in a criminal trial is represented with diligence by a
defence counsel and in case an accused during the trial
remains unrepresented because of poverty etc., it
becomes the duty of the Court to provide him legal aid at
State expense. We find from the judgment of the trial Court
that this point was raised on behalf of the accused during
the trial also by the amicus curiae provided to the accused
when his private counsel stopped appearing for him. The
learned trial Court dealt with this arguments in para no.101
of the judgment which is as under:-
"lt is next submitted that material witnesses have not been
cross examined by the accused and as such, their
testimony cannot be read against him. I may add that from
the very beginning of the trial, the accused has been
represented by a counsel Sh. Riaz Mohd. and he had
cross-examined some of the witnesses. Later on, when
Sh. Riaz Mohd. did not appear in the Court on some dates,
Mrs. Sadhna Bhatia was appointed as Amicus-Curiae to
defend the accused at State expenses. If the accused did
not choose to cross examine some witnesses, he cannot
be forced to do so. Moreover, later one accused prayed
for cross-examination of PW-1 Sh. Darshan Kumar, which
was allowed though it was filed at a belated stage after a
long period of time. The accused did not desire any other
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
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OF NCT) DELHI [H.L. DATTU, J.]
witness to be cross examined. Not only this, statement of A
PW-1 Sh. Darshan Kumar was recorded on 18-05-1999
and he was also present on 3-6-1999 and 13-08-1999, but
on all three dates, the cross-examination of this witness
was deferred at the request of the accused, who was
ultimately discharged with nil cross-examination. This
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shows that accused himself was not interested in crossexamining the witnesses. As such, this submission is also
without merit."
47. We have ourselves also perused the trial court record
and we are convinced that it is not a case where it can be
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said that the accused did not have a fair trial or that he
had been denied legal aid. We are in full agreement with
the above quoted views of the learned Additional Sessions
Judge on this objection of the accused and we refuse to
accept the plea of the appellant that this case should be D
remanded back for a re-trial."
4. I have heard learned counsel Mr. Mobin Akhtar for the
appellant and Mr. J.S. Atri, learned senior counsel for the State.
5. In this Court, the judgments are assailed, apart from the
merits, that the appellant is denied due process of law and the
conduct of the trial is contrary to procedure prescribed under
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the provisions of Cr. P.C. and, in particular, that he was not .
given a fair and impartial trial and was denied the right of a
counsel. Since the aforesaid issue is of vital importance, I have
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thought it fit to answer that issue before I discuss the merits of
the appeal. Therefore, firstly, I will consider the issue; whether
the appellant was given a fair and impartial trial and, whether
he was denied the right of a counsel. To answer this issue, it
may not be necessary to discuss the facts of the case or the
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circumstances surrounding the prosecution case except so far
they reflect upon the aforesaid issue.
6. To answer the aforesaid issue, it is necessary to look
at the proceedings of the Trial Court which are as under:
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"6.7.98
Pr:
APP
All accused in j/c.
All accused stated that they are not in position to engage
any lawyer and be provided with a lawyer from legal .aid.
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Legal assistance be provided to all accused from legal aid.
All accused requested further time for making scrutiny of
documents. Allowed. Put up on 20.7.98 for scrutiny ..
Sd/-
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MM/Delhi
2017198
Pr:
APP
0
All accused in judicial custody with Sh. V.K. Jain.Adv.
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Sh. Jain requested time for making scrutiny of documents.
Sh. Jain sates that he is applying for further time
(illegible). __
Allowed.
Put up on 29/7/98 for scrutiny.
2917/98
Pr:
APP
Sd./-
MM/Delhi
20.7.98
All accused in j/c with Sh. V.K. Jain.Adv. from Legal Aid.
Shri Jain requests for further time.
Allowed. Put up on 6/8/98 for scrutiny.
Sd./-
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT.
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OF NCT) DELHI [H.L. DATIU, J.]
MM/Delhi
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29.7.98
6.8.98
Pr: APP
All accused in j/c with Sh. Vijay Kr. Jain,Adv.
Sh. Jain stated that all accused have been supplied with
complete copies of documents filed alongwith the
chargesheet. Hence provision of Sec. 207 Cr.P.C. are
complied with.
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Present case also pertains to offence punishable u/s. 302/
307 IPC & 3, 4, 5 Explosive Substances Act which are
exclusively triable by Court of Sessions. Present case is
liable to be commit to court of sessions.