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
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
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
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
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
the Hon'ble Supreme Court reiterated the decisions in Khatri (2) v. State of
[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
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 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.
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
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.
- Mukesh and Anr. v State for NCT of Delhi and Ors., AIR 2017 SC 2161.
- 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.
- 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 .
- Supra Note 1.
- Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37.
- (1969) 1 SCR 32 .
- (2018) 14 SCALE 730.
- (2012) 9 SCC 771.
- AIR 1959 Kerala 241.
- Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi),
(2012) 9 SCC 408.
- Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.
- 1994 Supp (3) SCC 321.
- (1981) 1 SCC 627.
- (1986) 2 SCC 401.
- (2018) 9 SCC 160.
- 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/.
- See Jayna Kothari & Aparna Ravi, Centre For Law & Research Policy,
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
- Criminal Law (Amendment) Act, 2013, ¶ 21 [amending CODE CRIM. PROC. § 309
- 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.
-  5 S.C.R. 305.