Summary
In a death-sentence case under the IPC and the POCSO Act, the trial court appointed a legal aid defence counsel for the indigent accused and, on the same day, recorded the complete deposition and cross-examination of the star prosecution witness, the child victim's mother. Holding that failure to give an appointed legal aid counsel reasonable time to prepare vitiates the proceedings as a mistrial, the Court exercised powers under Sections 408 and 432 BNSS (Sections 367 and 391 CrPC) and remitted the matter for further cross-examination of that witness under witness-protection and other safeguards, keeping the appeal pending.
Issues
- Whether recording the deposition and cross-examination of the principal prosecution witness on the very day a legal aid defence counsel was appointed, without time to prepare, denied the accused a fair trial.
- What remedy is appropriate for such an infirmity in a capital case: a de novo trial or recall of the witness for further examination, and under which provisions.
Provisions considered
- Article 22(1), Constitution of IndiaProviding an experienced legal aid defence counsel to an unrepresented accused falls within the fundamental right guaranteed by Article 22(1) and accords with NALSA's Legal Aid Defence Counsel Scheme, 2022. (¶¶ 16, 17)
- Section 408 (corresponding to Section 367 CrPC), Bharatiya Nagarik Suraksha Sanhita, 2023Power, when a death sentence is submitted for confirmation, to direct further inquiry or additional evidence on any point bearing on guilt or innocence; invoked to remit the matter for further examination of PW-1. (¶¶ 21, 22, 25)
- Section 432 (corresponding to Section 391 CrPC), Bharatiya Nagarik Suraksha Sanhita, 2023Power of an appellate court to take additional evidence itself or direct a Court of Session to take it; read with Section 408 to recall PW-1 rather than order a retrial. (¶¶ 21, 22, 25)
- Section 207 (corresponding to Section 230 BNSS), Code of Criminal Procedure, 1973Supply of copies of the police report and prosecution documents to the accused; the trial court's order sheet did not even show that the legal aid counsel was given these copies before cross-examining PW-1. (¶ 19)
- Section 366, Code of Criminal Procedure, 1973Reference of the death sentence by the trial court to the High Court for confirmation; the confirmation proceeding is a continuation of the trial with wide powers (Atma Ram). (¶¶ 7, 22)
Held
- Denial of a competent and experienced defence counsel amounts to deprivation of a fair trial, and the concern is magnified where the accused faces life imprisonment or death; providing an experienced legal aid defence counsel to an unrepresented accused is within the fundamental right under Article 22(1) and in line with the Legal Aid Defence Counsel Scheme, 2022. (¶¶ 15, 16, 17)
- Once a legal aid defence counsel is appointed, particularly in a case carrying capital punishment, the trial court must ensure that the counsel gets a reasonable opportunity to prepare and conduct the case; failure to do so vitiates the proceedings as a mistrial. (¶ 18)
- Appointing legal aid counsel and, on the same day, recording the complete deposition including cross-examination of the star prosecution witness, where the order sheet did not show that copies under Section 207 CrPC were supplied and vital aspects of the case went unquestioned, caused grave prejudice through undue haste, even though the trial was otherwise conducted with precision and completed within six months of the chargesheet. (¶¶ 19, 20, 21, 23, 24)
- An order of retrial is exceptional; the powers of the confirmation court and the appellate court to take or direct additional evidence (Sections 367 and 391 CrPC, now Sections 408 and 432 BNSS) permit the lesser remedy of recalling a witness for further examination to cure such an infirmity (Atma Ram). (¶¶ 21, 22, 25)
- Directions on remand: PW-1 to be summoned for further cross-examination with appropriate witness protection and counselling by a senior or special public prosecutor; an experienced legal aid defence counsel to be appointed if desired, with the complete record supplied at least 15 days in advance; the prosecution may re-examine; the accused may engage his own counsel or Project 39A counsel and attend virtually from jail following POCSO trial procedure; the record with the additional statement to be forwarded to this Court. (¶¶ 26, 27, 28, 29)
Result
Matter remitted to the trial court (Second ASJ and Special Judge (POCSO Act), Jaora, District Ratlam) under Sections 408 and 432 BNSS (Sections 367 and 391 CrPC) for further examination and cross-examination of PW-1 on 11.06.2025 with the directions recorded; Registry to return the original trial record; appeal kept pending and listed for hearing on 17.07.2025.