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Case Analysis: Anokhi Lal v. State of Madhya Pradesh AIR 2020 SC 232

In the last decade, India has seen an exponential rise in judicial activism advocating social change. The un-fateful Nirbhaya [i] case in 2012 paved the way for the creation of controversial fast track courts based on the recommendations of the Justice Verma Committee[ii]; in an attempt to deliver speedy justice in special cases.[iii] The present case is a straitjacket example wherein the Trial Court completed trial in 12 working days and inadvertently ended up circumcising the right of the accused to 'free' and 'sufficient' legal aid; in an attempt to deliver expeditious justice
 
The principles of criminal jurisprudence advocate that the 'right to a speedy trial' should not in any way curtail the 'right to a fair trial'.[iv] As observed by the Hon'ble Supreme Court in the present case, expeditious disposal of a case must not be pursued at the cost of a burial of the cause of justice. 
 
Facts Of The Case
An F.I.R was registered against the appellant on 30.01.2013 under Sections 363 and 366 of the Indian Penal Code, 1872 (hereinafter referred to as the IPC); after a minor girl from the neighborhood was found missing. The F.I.R mentioned that the appellant had sent the minor girl to purchase a bidi from a kirana shop but the victim never returned back. 
 
The body of the victim was found in an open field on 1.02.2013 and the appellant was arrested on 4.02.2013. On 13.02.2013, a charge sheet was filed in the concerned court and the case was committed to Sessions Court on 18.2.2013. The case was posted for 19.02.2013 for arguments on framing of charges. 
 
A learned advocate was appointed by the Legal Aid Services Authority a day prior; to represent the appellant on 19.02.2013. The said advocate failed to appear and hence, another advocate was appointed on the same day to the appellant. On the same day, charges were framed against the appellant under Sections 302, 363, 366, 376(2) (f) and 377 of the IPC and under Sections 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO). 
 
Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013. On 4.03.2013, the Trial Court pronounced the judgment whereby the accused was convicted under Section 363, 366, 377, 376(2) (f) and Section 302 IPC read with Section 6 of POCSO. 
 
On the same day, the Trial Court also heard arguments on sentencing and categorized the case as the rarest of the rare while citing Rajendra Prahladrao Vasnic[v] case. Resultantly, the appellant was awarded death sentence subject to the confirmation of death penalty by the Hon'ble High Court as per the provisions of Section 366 of the Code of Criminal Procedure, 1972 (hereinafter referred to as the CrPC). 
 
The Hon'ble High Court of Madhya Pradesh, reiterating that the Prosecution proved the last seen theory beyond any reasonable doubt, affirmed the view taken by the Trial Court and upheld the death sentence and other sentences imposed by the Trial Court. 
 
The judgment and order passed by the Hon'ble High Court was challenged before the Hon'ble Supreme Court through the present special leave petition. 
 
Question Of Law
In case, the discussion of the Hon'ble Supreme Court was purely confined to a single issue:
 
Whether the appellant was extended real and meaningful assistance while granting free Legal Aid?
 
Submissions On Behalf Of The Appellant
The learned Amicus Curiae challenged the fairness of the trial stating that the the interest of the appellant-accused was put to prejudice on more than one count. The following submissions were made by the amicus curiae on behalf of the accused:
 
A. Insufficient Opportunity to the Defense
The principal submission made by the learned Amicus Curiae before the Hon'ble Supreme Court was that the there was error on the part of the Trial Court to frame charges on the same day of appointment of amicus curiae; who did not get any opportunity interact or seek appropriate instructions from the accused.
 
In Bashira vs. State of Uttar Pradesh[vi] as well as in Ambadas Laxman Shinde and others vs. State of Maharashtra[vii], the Hon'ble Supreme Court held that making substantial progress in the matter on the very day after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance of 'sufficient opportunity' to the counsel.
 
In V.K. Sasikala vs. State Represented by Superintendent of Police [viii] a caution was expressed by this Court as under:
 
23.4 While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well-entrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time.
 
Non - Adherence to the Procedure Established By Law
The learned amicus curiae, relying upon the judgement in Bashira [ix], re-emphasized that the failure on the part of the Trial Court to allow sufficient time to the defence counsel to prepare his case and conduct it on behalf of the accused will amount to violation of Article 21 of the Constitution which lays down that no person shall be deprived of his life or personal liberty, except according to procedure established by law. As observed in Mathai Thommen v. State [x] that:
 
Practices like this would reduce to a farce the 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 him to prove his innocence. 
 
The Court in Mathai Thommen had consequently set aside the conviction of the accused because of the error in the procedure adopted at trial and directed for fresh trial of the accused after complying with the requirements of law. 
 
Denial of Equal Justice guaranteed under Free Legal Aid 
The learned amicus curiae also referred to Article 39-A of the Constitution and re-emphasized that right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 of the Indian Constitution. [xi] Additionally, it is not necessary for an accused to ask for legal assistance and the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid.[xii] 
 
The learned amicus curiae quoted Tyron Nazareth v. State of Goa[xiii] wherein the Hon'ble Supreme Court reiterated the decisions in Khatri (2) v. State of Bihar [xiv] and Sukh Das v. UT, Arunachal Pradesh [xv]; and observed that lack of awareness on behalf of the appellant concerning his punishment due to non-availability of free legal aid guaranteed under Section 304, CrPC was a ground for setting aside the conviction of the accused and ordering a de novo trial.
 
Submissions On Behalf Of The State
The State submitted that the evidence on record, without any doubt, pointed towards the guilt of the accused and as such the order of conviction recorded by the Courts below was correct and did not call for any interference. 
 
The Judgement
The three-judge bench of Justices UU Lalit, Indu Malhotra and Krishna Murari set aside the final judgments and orders passed by the Trial Court & the High Court of Madhya Pradesh; and directed a de novo consideration of the case. The decision was based on the submission that the appellant in the present case ought to have been afforded sufficient opportunity to study the matter and the infraction in that behalf resulted in miscarriage of justice.
 
The Hon'ble Supreme Court held that an attempt at expeditious disposal of a case should not be done at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. The Apex Court observed that:
 
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.
 
Additionally, the Hon'ble Supreme Court laid down certain norms so that similar infirmities are not repeated in the upcoming cases:
 
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 the death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.
Whenever any learned 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 on 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. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan vs. State of Maharashtra.[xvi]
 
Critical Analysis Of The Case
The present case is an honest reflection of the Indian judicial system; adding equally to the agony of both the victim and the accused. An attempt at delivering expeditious justice within 12 working days made justice seem far-fetched in reality as the Apex Court ordered a de novo trial after 6 years of the Trial Court judgement. As the fairness of the trial was challenged in appeal before the Hon'ble High Court of Madhya Pradesh and eventually before the Hon'ble Supreme Court, the accused was left hanging by the nook awaiting death sentence over a period of 6 years. 
 
The Controversial FTC Scheme
The fast track courts (FTC) [xvii] lack central legislation to specify procedures in cases concerning crimes against women such as sexual violence.[xviii] The FTCs have the accelerated timeline associated with the specialized subject matter, to complete the trials within two months after initiation and allow adjournment only when absolutely necessary.[xix] Consequently, the FTCs contain gaps in their day-to-day procedures, staffing, and training of personnel that pose challenges to their very raison d'ętre (deterrence of sexual crimes).[xx] These shortcomings present problems for the credibility, accessibility, consistency and viability of the FTC system. 
 
Conclusion
The paradigm of balancing the FTC scheme with the constitutional mandates as specified in Brij Mohan Lal v. UnionOf India & Ors to provide for fair and expeditious trial to all litigants and citizens of the country is yet a long mile away. In casu, a handful of guidelines issued by the Hon'ble Supreme Court concerning free legal aid only resolve a limited set of infirmities. 
 
The Centre and the State Governments should create additional judicial posts accompanied with special training to balance speedy justice with fair procedure as directed by the Hon'ble Supreme Court in the Brij Mohan case [xxi]. While creating additional judicial posts can help in immediate redressal of the issue at hand, formulation of a special legislation to regulate the procedures of the fast track courts is the long term solution that still needs to be worked out by the legislative authorities.
 
End-Notes:
  1. Mukesh and Anr. v State for NCT of Delhi and Ors., AIR 2017 SC 2161.
  2. Justice Verma Committee Report, 'Amendments to Criminal Law', January 23, 2013, available at: http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf.
  3. Pradeep Thakur, States set up 164 fast-­‐track courts to try sex crimes, more to follow, The Times of India, December 3 2013, available online at .
  4. Supra Note 1.
  5. Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37.
  6. (1969) 1 SCR 32 .
  7. (2018) 14 SCALE 730.
  8. (2012) 9 SCC 771.
  9. Id.
  10. AIR 1959 Kerala 241.
  11. Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi), (2012) 9 SCC 408.
  12. Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.
  13. 1994 Supp (3) SCC 321.
  14. (1981) 1 SCC 627.
  15. (1986) 2 SCC 401.
  16. (2018) 9 SCC 160.
  17. See Nita Bhalla, 'India Opens Fast-Track Courts After Delhi Gang Rape', THOMSON REUTERS FOUNDATION (Apr. 10, 2013), available at http://www.trust.org/item/?map=india-opens-fast-track-courts-after-delhi-gang-rape-report/.
  18. See Jayna Kothari & Aparna Ravi, Centre For Law & Research Policy, 'The Myth of Speedy And Substantive Justice: A Study of the Special Fast Track Courts for Sexual Assault and Child Sexual Abuse Cases in Karnataka 4 (2015), available at http://clpr.org.in/wp-content/uploads/2015/06/Fast-Track-Courts-Report-Final.pdf.
  19. Criminal Law (Amendment) Act, 2013, ¶ 21 [amending CODE CRIM. PROC. § 309 (1973) (India)].
  20. Vandana Peterson, 'Speeding up Sexual Assault Trials: A Constructive Critique of India's Fast-Track Courts', 18 Yale Hum. Rts. & Dev. L.J.(2016),  available at https://digitalcommons.law.yale.edu/yhrdlj/vol18/iss1/2.
  21. [2012] 5 S.C.R. 305.

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