KIRIT P.

MEHTA SCHOOL OF LAW

B.B.A, LL.B (Hons.)

Forth Semester

CRIMINAL PROCEDURE CODE

A PAPER ON:

“Mohd. Hussain vs. The State (Govt. of NCT) Delhi”

Submitted to:

Prof. Prosper D’Souza

School of Law, NMIMS (Deemed to be university)

Submitted by:

Ritesh Madrecha

D007

SY BBA LLB (D)

The concept of fair trial is based on the basic ideology that State and its agencies have the
duty to bring the offenders before the law. In their battle against crime and delinquency, State
and its officers cannot on any account forsake the decency of State behavior and have
recourse to extra-legal methods for the sake of detection of crime and even criminals. For
how can they insist on good behavior from others when their own behavior is blameworthy,
unjust and illegal? Therefore, the procedure adopted by the State must be just, fair and
reasonable. The Indian courts have recognized that the primary object of criminal procedure
is to ensure a fair trial of accused persons. Human life should be valued and a person accused
of any offense should not be punished unless he has been given a fair trial and his guilt has
been proved in such trial.

The Cr.P.C. entitles an accused of certain rights during the course of any investigation,
enquiry or trial of an offense with which he is charged. The requirement of fair trial involves
two things: a) an opportunity to the accused to secure a counsel of his own choice, and b)
the duty of the state to provide a counsel to the accused in certain cases. The Law
Commission of India in its 14th report has mentioned that free legal aid to persons of limited
means is a service which a Welfare State owes to it citizens. In India, right to counsel is
recognized as fundamental right of an arrested person under article 22(1)1 which provides,
inter alia, no person shall be denied the right to consult, and to be defended by, a legal
practitioner of his choice. Sections 3032 and 3043 of the Code are manifestation of this
constitutional mandate.

In Khatri v. State of Bihar,4 the court held that the accused is entitled to free legal services
not only at the stage of trial but also when first produced before the Magistrate and also when
remanded.

Further, article 39-A5 was also inserted in the Constitution as per the 42nd Amendment,
1976, which requires that the state should pass suitable legislation for promoting and
providing free legal aid. To fulfil this Parliament enacted Legal Services Authorities Act,
1987. Section 126 of the Act provides legal services to the persons specified in it.

1
Indian Consti. Art. 22(1)
2
§ 303, The Code Of Criminal Procedure, 1973, Act No. 2 of 1974, Acts of Parliament, 1980
3
§ 304, The Code Of Criminal Procedure, 1973, Act No. 2 of 1974, Acts of Parliament, 1980
4
(1981) 2 SCC 493
5
Indian Consti. Art. 39A
In Suk Das and Ors. v. Union Territory of Arunachal Pradesh,7 the court strengthened the
need for legal aid and held that free legal assistance at state cost is a fundamental right of a
person accused of an offense which may involve jeopardy to his life or personal liberty. The
exercise of this fundamental right is not conditional upon the accused applying for free legal
assistance so that if he does not make an application for free legal assistance the trial may
lawfully proceed without adequate legal representation being afforded to him. On the other
hand, the Magistrate or the Sessions Judge before whom the accused appears is under an
obligation to inform the accused that if he is unable to engage the services of a lawyer on
account of poverty is entitled to obtain free legal services at the cost of the State.

CASE ANALYSIS

Appellant: Mohd. Hussain

Respondent: The State (Govt. of NCT) Delhi

Citation: AIR 2012 SC 750

Type: Criminal Appeal No. 1091 of 2006

Coram: Justice H.L. Dattu and Justice C.K. Prasad

Decided on: January 11, 2012

FACTS OF THE CASE

 This was an appeal against a death sentence in a case of a bomb blast on a bus. The
facts were that the Appellant, i.e., Mohd. Hussain8 alias Julfikar Ali is an illiterate
foreign national. He was put on trial for offences under Section 302 9 and 30710 of the
Indian Penal Code and Section 311 and 412 of the Explosives Substances Act. He was
held guilty under Section 30213 and 30714 of the Indian Penal Code and Section 3 of
Explosives Substances Act and sentenced to undergo imprisonment for life each

6
§ 12, The Legal Services Authorities Act, 1987, No. 39 of 1987, Acts of Parliament, 1980
7
(1986) SCC 401
8
Mohd. Hussain vs. The State (Govt. of NCT) Delhi (11.01.2012 - SC) : MANU/SC/0012/2012
9
§ 302, Indian Penal Code, 1860, Act 45 of 1860, Acts of Parliament, 1980
10
§ 307, Indian Penal Code, 1860, Act 45 of 1860, Acts of Parliament, 1980
11
§ 3, The Explosive Substances Act, 1908 Act No. 6 Of 1908, Acts of Parliament, 1980
12
§ 4, The Explosive Substances Act, 1908 Act No. 6 Of 1908, Acts of Parliament, 1980
13
Supra Note No. 9
14
Supra Note No. 10
 under Section 307 of Indian Penal Code and Section 3 15 of the Explosives Substances
Act.
 The Appellant asked for engagement of a Counsel to defend him at 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. Fifty-six witnesses and investigating officer were examined without
appellant having a counsel and none were cross-examined by appellant. Only one
witness cross-examined to complete the formality.
 The trial court punished him with death for offence under Section 302 of the Indian
Penal Code and submitted the proceeding for confirmation to the High Court.
 The Appellant preferred appeal before the High Court against his conviction and
sentence. Both the appeal and the reference were heard together and by an impugned
common judgment the High Court has dismissed the appeal and confirmed the death
sentence.
 Thus, the Appellant challenges his conviction and sentence inter alia on the ground
that he was not given a fair trial, which alone vitiates his conviction and sentence.

ISSUES IN THE CASE

Right to legal aid: Whether the Appellant was given a fair and impartial trial and, whether
he was denied the right of a Counsel?

Remand of case: Whether it is a fit case in which direction be given for the de novo trial of
the Appellant after giving him the assistance of a Counsel.

LAWS INVOLVED

Section 304 of Code of Criminal Procedure (Cr.P.C.)

Articles 21, 22, 39A of the Constitution of India, 1950

FINDINGS

The court found that the legal aid counsel appointed failed to appear for much of the trial and
failed to cross-examine multiple witnesses against the accused. The court noted that the
Sessions Judge did not ask the accused whether he was able to appoint counsel or wished to
have counsel appointed. Another lawyer was appointed, but only at the end of the trial. The
15
Supra Note No. 11
representation provided was such that it was a denial of effective and substantial assistance of
counsel and was found to be a violation of the right to due process and a fair trial.

The matter was referred to a three-judge bench to determine whether it should be directed for
de novo consideration by the trial court, which the court held in favour of, in light of the
serious nature of the crime.

JUDGEMENT

Ratio Decidendi:

“Every person has a right to a fair trial by a competent court in the spirit of the right to life
and personal liberty.”

The Hon’ble Supreme Court has observed that the right to free legal services is considered to
be an essential right of the accused enshrined under the Constitution of India. The object
behind providing the undefended and unrepresented accused persons with competent legal
aid is to see that the accused gets free, fair, just and reasonable trial of his or her charge in a
criminal case. Howsoever guilty the appellant upon the inquiry might have been, he is still
presumed to be innocent till the final conclusion of the trial. Therefore, it the duty of the court
to see that the accused has been denied no necessary incident of a fair trial. The right to be
defended by a competent counsel is, no doubt, a principal part of right to fair trial. If these
safeguards are not provided then it will be a serious prejudice on the part of the accused.

Further, this right to be defended by a competent legal practitioner, which is flowing from
Article 22(1)16 of the Constitution, is further fortified by the introduction of Article 39A 17 in
the Directive Principles of State Policy by the 42nd Amendment Act of 1976 and enactment of
sub-sec. 1 of Section 304 of the Code of Criminal Procedure, 1973. Also, the right to free
legal services to a poor person facing trial is not only mandated under the Constitution of
India and the Code of Criminal Procedure but also it has been embodied under the
International Covenants and Human Rights Declarations. If an accused person who is too
poor to afford any lawyer, goes through the trial without any legal assistance, then such trial
cannot be considered as a ‘fair, just and reasonable’. The right to be heard in a criminal trial
would be inconsequential if does not include the right to be heard through a counsel. A
guiding hand of a counsel at each and every step of a criminal proceeding is very much

16
Supra Note No. 1
17
Supra Note No. 3
needed for a fair and impartial trial. The right of an accused person to have the services of a
lawyer is fundamental and essential to fair and impartial trial.

HELD

The Court allowed the appeal set aside the conviction and sentence passed by both the courts
below and remanded the matter to the trial court with a direction to assist a lawyer for the
accused at the cost of the state before the commencement of the trial till its conclusion. The
Court held that every person has a right to a fair trial by a competent court in the spirit of the
right to life and personal liberty.

Further, castigating the trial court for its “casual manner” in conducting a capital punishment
case, the division Bench split over whether to acquit the accused or to send the case for
retrial. The matter was referred to a three judge Bench which remanded the matter back for a
fresh trial, noting that the accused had been denied fair trial because of the denial of effective
legal representation. At this fresh trial Mohd. Hussain was found innocent of all charges and
was acquitted.

CONCLUSION

The concept of speedier justice has to comply with the principles of natural justice,
procedures prescribed under Criminal Procedure Code to be followed, law of evidence has to
be strictly adhered to, accused to be represented by a lawyer and an effective opportunity to
the accused to defend himself. The courts, while dispensing justice shall keep in mind not
only the liberty of the accused but also the interest of the victims and their dear and near and
above all the collective interest of the community and the safety of the nation so that public
may not lose faith in the system of judicial administration.18

18
Kartar Singh Vs. State of Pubjab, 1994 Cr L.J. SC P.3139