Case Summary
| Citation | Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012) 9 SCC 408 |
| Keywords | Fair trial, speedy trial, sec 386 crpc |
| Facts | It occurred in a public transport bus when that bus was carrying passengers and stopped at a bus-stand. The moment the bus stopped an explosion took place inside the bus that ultimately resulted in death of four persons and injury to twenty-four persons. The nature of the incident and the circumstances in which it occurred speak volume about the very grave nature of offence. As a matter of fact, the appellant has been charged for the offences under Sections 302/307 IPC and Section 3 and, in the alternative, Section 4(b) of the ES Act. It is true that the appellant has been in jail since 9-3-1998 and it is more than 14 years since he was arrested and he has passed through mental agony of death sentence and the retrial at this distance of time shall prolong the culmination of the criminal case. The appellant contended that was denied the assistanceof a counsel in substantial and meaningful manner in the course of trial although necessity ofcounsel was vital and imperative and that resulted in denial of due process of law. |
| Issues | whether an order for retrial can be given when prejudiced has been caused to the accused due to unfair trail? |
| Contentions | |
| Law Points | “Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case. |
| Judgement | The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative that justice is secured after providing the appellant with the legal practitioner if he does not engage a lawyer of his choice. |
| Ratio Decidendi & Case Authority |
Full Case Details
R.M. Lodha, J.—1. We are called upon to decide in this appeal the issue on reference by a
two-Judge Bench [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584],
whether the matter requires to be remanded for a de novo trial in accordance with law or not?
16. The two-Judge Bench [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC
584] that heard the criminal appeal, was unanimous that the appellant was denied the assistance
of a counsel in substantial and meaningful manner in the course of trial although necessity of
counsel was vital and imperative and that resulted in denial of due process of law. In their
separate judgments, the learned Judges agreed that the appellant has been put to prejudice
rendering the impugned judgments unsustainable in law. They, however, differed on the course
to be adopted after it was held that the conviction and sentence awarded to the appellant by the
trial court and confirmed by the High Court were vitiated. As noted above, H.L. Dattu, J.
ordered the matter to be remanded to the trial court for fresh disposal in accordance with law
after providing to the appellant the assistance of the counsel before the commencement of the
trial till its conclusion if the accused was unable to engage a counsel of his own choice. On the
other hand, C.K. Prasad, J. for the reasons indicated by him held that the incident occurred in
1997; the appellant was awarded the sentence of death more than seven years ago and at such
distance of time it shall be travesty of justice to direct for the appellant’s de novo trial.
40. “Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article 21.
There is, however, qualitative difference between the right to speedy trial and the accused’s
right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial
does not per se prejudice the accused in defending himself. The right to speedy trial is in its
very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion
of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of
several years since the commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The factors concerning the accused’s
right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures rights to an accused but it does
not preclude the rights of public justice. The nature and gravity of crime, persons involved,
social impact and societal needs must be weighed along with the right of the accused to speedy
trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial
should not operate against the continuation of prosecution and if the right of the accused in the
facts and circumstances of the case and exigencies of situation tilts the balance in his favour,
the prosecution may be brought to an end. These principles must apply as well when the appeal
court is confronted with the question whether or not retrial of an accused should be ordered.
41. The appellate court hearing a criminal appeal from a judgment of conviction has power to
order the retrial of the accused under Section 386 of the Code. That is clear from the bare
language of Section 386(b). Though such power exists, it should not be exercised in a routine
manner. A de novo trial or retrial of the accused should be ordered by the appellate court in
exceptional and rare cases and only when in the opinion of the appellate court such course
becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the
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prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is
continuation of the same trial and same prosecution. The guiding factor for retrial must always
be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the
Code, will depend on the facts and circumstances of each case for which no straitjacket formula
can be formulated but the appeal court must closely keep in view that while protecting the right
of an accused to fair trial and due process, the people who seek protection of law do not lose
hope in legal system and the interests of the society are not altogether overlooked.
43. We have to consider now, whether the matter requires to be remanded for a de novo trial in
the facts and the circumstances of the present case. The incident is of 1997. It occurred in a
public transport bus when that bus was carrying passengers and stopped at a bus-stand. The
moment the bus stopped an explosion took place inside the bus that ultimately resulted in death
of four persons and injury to twenty-four persons. The nature of the incident and the
circumstances in which it occurred speak volume about the very grave nature of offence. As a
matter of fact, the appellant has been charged for the offences under Sections 302/307 IPC and
Section 3 and, in the alternative, Section 4(b) of the ES Act. It is true that the appellant has been
in jail since 9-3-1998 and it is more than 14 years since he was arrested and he has passed
through mental agony of death sentence and the retrial at this distance of time shall prolong the
culmination of the criminal case but the question is whether these factors are sufficient for the
appellant’s acquittal and dismissal of indictment. We think not.
44. It cannot be ignored that the offences with which the appellant has been charged are of very
serious nature and if the prosecution succeeds and the appellant is convicted under Section 302
IPC on retrial, the sentence could be death or life imprisonment. Section 302 IPC authorises the
court to punish the offender of murder with death or life imprisonment. Gravity of the offences
and the criminality with which the appellant is charged are important factors that need to be
kept in mind, though it is a fact that in the first instance the accused has been denied due process.
While having due consideration to the appellant’s right, the nature of the offence and its gravity,
the impact of crime on the society, more particularly the crime that has shaken the public and
resulted in death of four persons in a public transport bus cannot be ignored and overlooked. It
is desirable that punishment should follow offence as closely as possible. In an extremely
serious criminal case of the exceptional nature like the present one, it would occasion in failure
of justice if the prosecution is not taken to the logical conclusion. Justice is supreme. The retrial
of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative
that justice is secured after providing the appellant with the legal practitioner if he does not
engage a lawyer of his choice.
47. In what we have discussed above we answer the reference by holding that the matter
requires to be remanded for a de novo trial. The Additional Sessions Judge shall proceed with
the trial of the appellant in Sessions Case No. 122 of 1998 from the stage of prosecution
evidence and shall further ensure that the trial is concluded as expeditiously as may be possible
and in no case later than three months from the date of communication of this order.
