Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J. allowed an application of revision filed for quashing an order passed by Additional Sessions Judge (POCSO Act) under Sections 376, 506, 377 of the Penal Code, 1860 and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In the present case, the revisionist Shadaan Ansari being unable to engage a lawyer was provided an amicus curie by the trial court at expense of the state. The prosecution carried out Examination-in-Chief of the witnesses before the trial court. The amicus curie refused to cross examine the witnesses stating that it was not real and effective in this case. The revisionist filed for an application under Section 311 of the Code of Criminal Procedure, 1973 to recall the witnesses for their cross examination but it was rejected by the court with the observation that the Amicus Curiae denied the cross-examination on the advise of the revisionist.

Counsel for the revisionist, Bipin Kumar Tiwari, submitted that the intention of Section 304 of CrPC. is for providing real and effective aid to an accused and it is the duty of the trial court to ensure proper compliance of the requirement as the accused also has the right to fair trial. In support of his submission he placed reliance on Mohd. Hussain & Julfikar Ali v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408. He further submitted that if adequate legal aid has not been provided, it is a violation of Article 21 of the Constitution of India.

Counsel for the State, Aniruddh Kumar Singh, submitted that there is nothing illegal in the order passed by the court in rejecting the recall of witnesses for cross examination as the opportunity for the same was already given to the amicus curiae and it was turned down. He further submitted that it was clear that the trial court while rejecting the impugned order observed that the opportunity to cross examine the witnesses was given to the amicus curie but he denied it on the advice of the revisionist

The Court allowed the application for revision and quashed the impugned order of Additional Sessions Judge. Placing reliance on Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 and Mohd. Hussain v. State (Govt. of NCT) of Delhi, (2012) 2 SCC 584, the Court held that that if the adequate legal aid has not been provided to the accused during the trial, then it is violative of Article 21 of the Constitution of India. 

It was opined that the legal aid provided to the revisionist by the amicus curie was not real and effective, as the amicus curie had denied cross-examination of the witness. In view thereof, the Court set aside the impugned order and ordered the trial court to recall all the prosecution witnesses, and cross-examine them. [Shadaan Ansari v. State of U.P., 2020 SCC OnLine All 19, decided on 14-01-2020]

Case BriefsSupreme Court

Supreme Court: Noticing that 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, the 3-judge bench of UU Lalit, Indu Malhotra and Krishna Murari, JJ has laid down the below mentioned norms to ensure the same.

  • In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused.
  • In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.
  • Whenever any counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast rule in that behalf. However, a minimum of seven days’ time may normally be considered to be appropriate and adequate.
  • Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the concerned accused.

The Court was hearing a case where the Amicus Curiae was called upon to defend the accused at the stage of framing of charges on the very day he was appointed. The Court was, hence, certain of the fact 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. Not only this, but the trial itself was concluded within a fortnight thereafter and the accused was awarded death sentence in the offence relating to murder of a 9-year-old girl.

The Court, hence, said that though expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial, however, 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 may be expedited, but fast tracking of process must never ever result in burying the cause of justice.”

It was hence, held that the Trial 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 the Trial Court may have expedited the conduct of trial, but did not further the cause of justice. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

“the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps.”

The Court, hence, set aside the conviction and directed a de novo consideration of the matter.

[Anokhilal v. State of Madhya Pradesh, 2019 SCC OnLine SC 1637, decided 18.12.2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Sanjay Karol, ACJ and Ajay Mohan Goel, J. declared that studying in private school cannot be a ground to remove such category from the BPL list.

A letter petitioned to the Court has requested to delete those families whose children were studying in private schools from the list of BPL families.

To look into the matter the Court appointed Abhilasha Kaundal as amicus curiae and after going through the matter it was of the view that there was no such resolution as alleged by the petitioner passed by the respondent. Further names of certain families were excluded and included in the list of BPL category by the concerned authority strictly following the procedure enshrined in the relevant rules in this regard.

Accordingly, the matter was disposed of. [State of H.P. (BPL list matter), In re, 2017 SCC OnLine HP 1715, decided on 12-12-2017]