BASHIRA versus STATE OF U.P.

Citation: [1969] 1 S.C.R. 32 · Decided: 19-04-1968 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

BASHIRA 
v. 
STATE OF U.P. 
April 19, 1968 
A 
IS. M. SIKRI, J. M. SHELAT AND v. BHARGAVA, JJ.] 
B 
c.·o,istitufion of India, 1950, Art, 21-Accused 
IT~!?d for offence of 
murder-Criminal Procedure Code (Act 5 of 1898), s. 340 and 
Rules 
made by the Jlig/J c·ourt, r. 37 Counsel appointed by SessioJ1s Co~rt f<;>r 
dt•fen<linf] accused-Not given enough lime to prepar.~ defence--lj v1olatzve 
of Article. 
· 
The :1ppellant \11a.s charged with the offence of murder uuder s .. 302 
C 
JPC. 
Just before the beginning of the trial, the Sessions Court appomted 
an advocate as atnicuJ Cllriae to represent •:he appellant. 
Af[cr the exami-
nation of ""'itnc<:iscs. on the day on which the case \\ras posted for argument, 
appellant's counsel prayed for the recall of 1hc sole eyc.·v.·itness for furrhcr 
cross-examination as the wiincss could not be cross-examined effectively. 
The application was r"e~ected, and after hearing arguments, the court con-
victed the appellant and sentenced him to death. 
·fhc conviction 
and 
D 
serli.t.'TICC were confirmed by the High Court. 
Jn appeal to this Court, it was contended that the belated appointment 
of counsel dcpnvcd the appellant of adequate legal aid and tha.: he would 
be deprived of hts life in breach of his fundamental right under Art. 21. 
HELD : The right on which the accused based his claim is based oo 
r. 37 of the Generafkules (Criminal)l957, promulgated by the High Court 
in exercise of its poW"ers under Art. 227 of .~he Constitution and s. 554 
of the Criminal Procedure Code. Therefore.., the rule b, a statutory rule 
aod forms pan of the procedure for trial of criminal cases. 
Its intention 
is that no accused person should remain unrepresen:cd by a Jawyer if he 
is bein.~ tried on a charge for which a capital sentence can be awarded. 
Notwithstanding the use of the word 'mav'. considering the purpose of the 
rule, it must be interpreted ac; laying down a mandatory direction to the 
Court to engage a counsel if the conditions laid down therein are satisfied. 
As tbe rule supplements the provision contained in s. 304 Cr. P.C. under 
which such appointment of counsel is oot mandatory, it is not in conflict 
with the section. The last clause of the role requires that the 
counsel 
appointed under the Rules shall he furnished with necessary papers free 
of cost and allowed sufficient time to prepare for the defence. (350--E; 
36--E; 38, D, E-F] 
In the present case, when the counsel \\'ac; appainted ius1 before the 
trial ~tarted, there was a failure to comply v.·ith the requiremcnt(j of (be 
rule. 
Even though counsel did not ask for time it was the duty of the 
cour-l, under the rule, 10 ~rant sufficient time to counsel. and. when suffi-
cient time \\'JS not .Qranted to counsel to prepare the 
defence, prejudice 
must necessarily he inferred and the trial held vitiated. 
Further, ac; the 
word 'l;i"'·' in Art. 21 includes suhordinate legislation 
promulgated 
by 
delegated authority there is a breach of An. 21. and therefore th~ question 
of prejudice docs not arise. [38C; 4-0B. G--H; 41B] 
Maqhoo/ Hussain v. State of Bamhay. 
[1953] 
S.C.R. 
730. 
Pandit 
M. S. M. Sharma v. Shri Sw Krishna Sinha, [195'1] Supp. I 
S.C.R. 806 
and Makhan Singh v. State of Punjah, [1964] 4 S.C.R. 797. followed . 
• 
• 
E 
F 
H 
-
-
A 
8 
BASHIRA v. STATE OF U.P. (Bhargava, J.) 
33 
A. K. Gopa/an v. State of Madras, [1950] S.C.R. 88, 
111-112; 
Janardan Reddy v. State of Hyderabad. [1951] S.C.R. 344 and Tara Smgh 
v. The State, [1951] S.C.R. 729, explained. 
, 
Re: Alla Nagesnara 
Rao, A.LR. 
1957 A.P. 505 and 
Mathai 
Tlwmmen v. State A.I.R. 1959 Kerala 241, referred to. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
25 of 1968. 
Appeal by special leave from the judgment and order, dated 
July 20, 1967 of the Allahabad High Court in Cr. A. No. 469 of 
1967 and Ref. No. 21 of 1967. 
K. K. Luthra, for the appellant. 
C 
0. P. Rana, for the respondent. 
D 
E 
F 
G 
H 
The Judgment of the Court was delivered by 
Hhargava, J. The appellant Bashira was convicted by the 
Court of Session for having committed the murder of his own 
wife Saira alias Mahobawali with an axe inside his house at about 
11 ?..m. on 22nd August, 1966. The First Information Report 
of this incident was lodged on the same day at 5-15 p.m. by 
Naziran, the mother of the appellant, who went to the Police 
Station accompanied by the Chaukidar. The investigation of the 
case began on 23rd August, 1966. 
The appellant sur

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