While speaking in a most simple, straightforward and suave manner, it must be mentioned right at the outset that the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of the Delhi High Court has in a most laudable, learned, landmark and latest judgment titled Sunil vs State in CRL.A. 273/2009 that was reserved on December 21, 2022 and then finally pronounced as recently as on January 5, 2023 while acquitting a man in a case of preparation for committing dacoity called it a classic case where canons of justice were kept aside by a Trial Court as the accused wasn’t provided any effective legal aid.

We thus see that while observing that the trial in the case was conducted in a most casual manner, Hon’ble Ms Justice Swarana said that the Trial Court did not deem it appropriate to appoint any counsel to defend the accused. The Bench clearly stated that:
Lawyers are empanelled and paid to prosecute and defend those who are unable to hire lawyers to defend themselves. Needless to say, lawyers in criminal Courts are absolute necessity and not luxury. No denying!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of the Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that:
The present appeal has been filed by appellant under Section 374 read with Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) seeking setting aside of the impugned judgment dated 19.03.2009 and order on sentence dated 30.03.2009 passed by the learned Additional Sessions Judge-01, South, Patiala House Court, New Delhi in the Sessions Case No. 124/07 vide which the appellant has been convicted for the offences punishable under Section 399/402 of the Indian Penal Code, 1860 (IPC) and Section 25 of Arms Act, 1959.

To put things in perspective, the Bench then envisages in para 2 that:
The facts upon which the present FIR was registered are that on 11.07.2007, Sub Inspector K.C. Kaushik alongwith other staff consisting of Head Constable Pritam Singh, Constable Ram Saran and Constable Maz Ahmed were on patrolling duty and later, were also joined by Constable Dev Lagan. A secret information was received by SI K.C. Kaushik that in MCD/ACC Park, Panchsheel Park, 5-6 miscreants are sitting intending to commit some crime.

The information was passed on to the S.H.O, Police Station Malviya Nagar on telephone. 4-5 passersby were requested to join raiding party but they did not join and left without revealing their names and addresses.

Thereafter, SI K.C. Kaushik alongwith raiding team reached at Badarpur Service Lane near Panchsheel Park near MCD/ACC Park at about 10.00 PM. SI K.C. Kaushik had directed the raiding party to go to South West corner carefully and HC Pritam Singh heard the conversation of accused persons and informed him that five accused persons were sitting while one had a country made revolver in his hand. He further revealed that they were talking to each other about tying the guard of one Sabharwal and then taking away the valuables kept in the kothi.

They were also saying that they will open fire if anyone will raise alarm. Thereafter, the raiding team surrounded the accused persons but they started running in different directions. Four accused named Omkar, Sukhpal, Sunil and Suraj were overpowered. One loaded country made revolver was recovered from accused Sukhpal. One buttondar knife was recovered from accused Sunil.

One raxine bag was also recovered from accused Sunil which contained 2.5 metres long plastic rope and a black coloured cloth. One knife was recovered from accused Omkar, however, fifth accused had escaped who could not be arrested by the police. Thereafter, investigation was carried out. Chargesheet was prepared for offences punishable under Section 399/402 IPC read with Section 25 of Arms Act and charges were framed against four accused persons mentioned above.

Vide the impugned judgment, four accused persons were convicted for committing offences punishable under Section 399/402 IPC as well as under Section 25 of Arms Act. As per prosecution story, no arms were recovered from accused Suraj, however, he was convicted for offence punishable under Section 25 of Arms Act.

Needless to say, the Bench then states in para 5 that:
The arguments of both the sides have been heard. Records of the case have also been perused.

While taking potshots at the prosecution case, the Bench states in para 6 that, In the present case, it is alleged by the prosecution that Head Constable Pritam Singh had overheard the accused persons making preparation and hatching conspiracy to commit offence of dacoity at house of one Sabharwal after tying his guard.

However, a perusal of material on record reveals that neither the place where the accused persons were allegedly preparing to commit the offence in question was identified nor the accused were made to point out the same during investigation. This casts serious doubt on the case of prosecution as to whether such a person or house was actually situated or located nearby or even existed for the commission of offence in question.

To be sure, the Bench then points out in para 7 that:
A perusal of the record also reveals that it is mentioned in the FIR that during search of present appellant Sunil, five black masks of cloth as well as plastic rope measuring 2.5 metres were recovered from him, however, the testimony of all the witnesses examined in the Court including the testimony of the Investigating Officer is completely silent on this point. In the testimony, there is nowhere stated that raxine bag, masks and plastic rope were recovered from the possession of appellant Sunil.

Though the seizure memo regarding the seizure of bag, plastic rope and masks is on record, the witnesses have neither spoken about it nor has the said case property been produced before the Court or identified by any of the witnesses including the Investigating officer. Since it was not produced before the Court and neither of the witnesses have spoken about the same despite it being a crucial piece of evidence against the accused persons, it has made the case of the prosecution doubtful.

The IO has also not explained in his statement or in the FIR, where the entire proceedings are mentioned, as to how the rope was measured to be 2.5 metres in length which has been mentioned in the seizure memo. The above discussion makes it clear that the learned Trial Court failed to take note of the above said while appreciating evidence.

Briefly stated, the Bench discloses in para 8 that:
The Court while deciding the present appeal also notes that the learned Trial Court failed to provide effective legal aid to the present accused/applicant. A perusal of the record of the learned Trial Court reveals that total five witnesses were examined in the present case who were police witnesses. None of the witnesses has been cross-examined in this case.

Quite ostensibly, the Bench then mentions in para 9 that:
This makes it clear that in the present case, opportunity was granted to the accused persons to cross-examine the witnesses as they were not represented by their counsel nor were provided legal aid counsel. But the order dated 03.09.2008 mentions that the accused persons had requested to be provided with legal aid counsel. However, prior to that, all the five witnesses in this case stood examined.

It cannot be glossed over that the Bench then discloses in para 10 that:
Order sheet dated 18.02.2008 only mentions that counsel for accused was present with the accused. The name of the counsel is not mentioned and interestingly, two material witnesses i.e. PW1 Constable Maz Ahmed and PW2 HC Pritam Singh were examined on the said date. The evidence so recorded on that day does not mention the presence of their counsel but mentions that opportunity was given to the accused to cross-examine the witness (evidence mentions XXXX by accused.

Nil. Opportunity given). The non cross-examination of the major witnesses, thus, makes it clear that no counsel was present on that day as in case the counsel would have been present, it was the duty of counsel to cross-examine the material witness and in case they were not examined, it was essential for the learned Trial Court to have mentioned the name of the counsel and the fact that though the witnesses were tendered for cross-examination, the counsel for accused did not avail the said opportunity. Similar is the fact regarding the examination of PW-3 HC Charan Singh and PW-4 ASI Gopi Chand.

That on the day when PW-5 Investigating Officer was examined, there is no mention even of the word accused present with counsel. The order sheets, thereafter, do not mention the presence of the counsel when PW-5 was examined. It is, therefore, clear that it was only on 03.09.2008 when the accused persons requested that they are unable to engage a lawyer, that Sh. Mittal was appointed as Amicus Curie for accused persons at State’s expenses. In a nutshell, except at the time of recording of statement under Section 313 Cr.P.C. and hearing arguments on sentence, the Amicus Curie was not present, even on the day when final arguments were heard as his presence is not marked.

It is also not mentioned that he had addressed arguments when the final arguments were heard on 07.03.2009. Thus, learned Amicus Curie was not present on the dates fixed for final arguments and also prior to that. On 04.12.2008, when it is recorded that the accused persons, who had earlier expressed their desire to lead defence evidence, stated before the learned Court that they did not want to lead defence evidence, the learned Amicus Curie was not present. It is, thus, a case where the accused remained unrepresented and unaided during the entire effective stages of trial.

There can be no gainsaying what the Bench then observes in para 11 that:
Even the Constitution of India guarantees certain fundamental rights to the accused which stand unfettered during the trial as well as imposes certain duties upon the State, which are reproduced herein below:

Article 21 reads as under:
21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22 reads as under:
22. Protection against arrest and detention in certain cases.— (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice...

Article 39A reads as under:
39A. Equal justice and free legal aid:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Most lamentably, the Bench then makes no bones to point out in para 12 that, The trial in this case for a heinous offence which attracts punishment upto 10 years was, therefore, conducted in most casual manner. The Trial Court did not deem it appropriate to appoint any counsel to defend the appellant/accused, neither when the counsel engaged by him did not appear at the commencement of the trial (which is not clear from the order sheets unfortunately), nor at the time of recording of evidence of the prosecution witnesses. The accused, therefore, did not have legal aid of a counsel in real sense, at any stage of trial.

Needless to say, the accused was entitled to such legal aid during the entire period of trial. As already mentioned above, the appointment of the Amicus Curie was at a much later stage after the entire evidence had been recorded and even thereafter, learned Amicus Curie appeared only twice. This Court notes with regret that even at the stage of final arguments, he was not present to defend the appellant who he had been asked to defend at the State’s expense. There is no doubt that right of cross-examination to any accused in a criminal case to discredit the witnesses and to test veracity of the statement is the most vital part of a criminal trial.

Most glaringly, the Bench enunciates in para 18 that:
Despite there being catena of judgments emphasizing the need and importance of legal aid, no effective legal aid was provided to the accused persons in present case. Order sheets were written in most indifferent manner by the learned Trial Court. At most places, the name of the counsel is not mentioned in the order sheets. The name, presence or absence of the counsel was not mentioned in any of the evidence recorded. The problem does not end here. The present case was being tried for an offence of preparation of dacoity which attracts punishment upto 10 years.

No legal aid was available to the accused almost throughout the trial, most glaringly, at the time of final arguments and recording of evidence. The Trial Court itself should have realized the duty cast on it to provide effective legal aid to an accused who is poor and marginalized and could not defend himself. The Courts are the guardians of a person’s liberty and are duty bound by Constitution as well as their oath to ensure fair trial to an accused which is the constitutional goal set by the Indian Constitution itself.

Most significantly, the Bench minces no words to underscore in para 19 stating that:
Vast sums of money are disbursed to establish legal aid centres, and State Legal Services Authorities to help those who fail to hire the best lawyers due to their poverty. Lawyers are empanelled and paid to prosecute and defend those who are unable to hire lawyers to defend themselves. Needless to say, lawyers in criminal Courts are absolute necessity and not luxury.

Equally significant is what is then added in para 20 holding that:
The right to fair trial is a fundamental right. This noble goal will fail in case if poor man charged with an offence is unable to defend himself without lawyer to assist him. As already mentioned above, the more serious offence, the likely consequences are greater. The Court should have kept in mind the decision of the Hon’ble Apex court in Hussainara Khatoon (4) v. State of Bihar (1980) 1 SCC 98. The right of free legal services is essential ingredient of reasonable, fair and just procedure for a person accused of an offence and same has been held implicit in the guarantee of Article 21. It is most unfortunate that despite such mandate, at times, as in the present case, there is utter disregard of the decision of the highest Court as well as the constitutional mandate.

While citing the most relevant case law, the Bench then hastens to add in para 21 that:
It has been held in the case of Khatri (2) v. State of Bihar (1981) 1 SCC 627 that legal aid would become merely a fake promise and it would fail of its purpose, if it were to be left to a poor ignorant and illiterate accused to ask a for free legal services. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

No less significant is what is then specified in para 22 that:
In the present case, the absence of cross-examination has resulted in gross miscarriage of justice and the Court has to guard against such an eventuality. It is to be remembered that in India, the absence of fair and proper trial is not only violation of fundamental principles of judicial procedure and constitutional mandate, but also violation of mandatory provisions of Section 304 Cr.P.C. The assistance of a legal counsel, in a meaningful way, was absent throughout the trial. Judiciary has a crucial role to play in ensuring enforcement of human rights and has to meet the great challenge towards making justice accessible in practical terms to the poor in the country.

Be it noted, the Bench emphasizes in para 23 that:
It is important to understand the reality of disadvantage of an individual and ensure proactive steps to prevent injustice by providing effective legal aid in order to deliver equality in justice. The constitutional guarantees of free and fair trial should remain meaningful to the poor of the country and the judiciary has to remain vigilant to protect the interest of the disadvantaged groups also.

Most remarkably, the Bench holds in para 24 that:
This is a classic case where all cannons of justice were kept aside while passing the impugned judgment as the accused was not provided legal aid which he was entitled to get under the Constitution of India as well as under Cr.P.C. The accused has faced trial for last 15 long years. At times, though the agony of a person undergoing trial is not mentioned on the paper while a Judge writes a judgment, the trial which has been prolonged beyond 15 years is an agony itself. The stress of facing a criminal trial is punishment unannounced in a case, as the present one.

As a corollary, the Bench mandates in para 25 that:
Considering the overall facts and circumstances of the case, this Court’s judicial conscience does not permit to now remand back the matter and direct the learned Trial Court to again conduct a fresh trial. In view thereof, the accused is acquitted of all the charges since the trial in itself was vitiated due to non-assistance of accused by legal aid counsel, besides existence of several inconsistencies and lacunae in the case of prosecution before the learned Trial Court.

Furthermore, the Bench mentions in para 26 that:
Bail bond, if any, stands cancelled. Surety stands discharged.

Finally, the Bench concludes by directing in para 28 that:
A copy of this judgment be circulated by learned Registrar General of this Court to all the District Courts in Delhi and be also sent to the learned Director (Academics), Delhi Judicial Academy for doing the needful.

All told, we thus see that the Single Judge Bench comprising of Hon’ble Ms Swarana Kanta Sharma has made it indubitably clear that lawyers in criminal courts for the accused is an absolute necessity and not luxury. We thus see that the Delhi High Court so very rightly acquits the man who had to face trial without any legal aid! Of course, it merits no reiteration that all the Judges in India must definitely emulate such worthy and commendable judgment when confronted with similar cases! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh