Bhargava, J. - (1.)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 a. 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 surrendered himself in Court on 24th August, 1966. On 15th September, 1966, the challan was presented in the Court of the Magistrate who recorded some evidence, proceeded in accordance with Section 207-A of the Code of Criminal Procedure, and then, on 28th November, 1966, committed the appellant for trial to the Court of Session for the offence of committing the murder of his wife punishable under Section 302 of the Indian Penal Code. The Temporary Civil and Sessions Judge of Hamirpur fixed 28th February, 1967 as the date for starting the actual trial of the case. On that day, before beginning the trial, he appointed one Sri Sirish Chandra, Advocate, as amicus curiae counsel to represent the appellant. He amended the charge which was read out to the appellant who pleaded not guilty. Thereafter, on that very day, evidence of two principal prosecution witnesses was recorded. The first witness was Smt. Naziran, the mother of the appellant, who had lodged the F.I.R., and the second witness was Khan Bahadur, son of the appellant, who was the sole eye-witnesses of the incident of murder. The remaining evidence was recorded on 1st March, 1967, on which date the appellant was also examined under Section 342, Cr. P.C. The appellant stated that he would not produce any defence. A joint application of counsel for parties was presented on that day requesting the court to make a local inspection end 12th March, 1967 was fixed for local inspection. The Temporary Sessions Judge in that order directed that a suitable conveyance should be arranged for him as he had no conveyance of his own. On 8th March, 1967, the Public Prosecutor gave it in writing that no conveyance could be arranged and, therefore, prayed that the local inspection may be cancelled. The Judge cancelled the direction for local inspection and then fixed 10th March, 1967, for arguments. On that day, Sri Shukla, counsel representing the appellant presented an application praying for the recall of P.W. 2 Khan Bahadur for further cross-examination on the ground that there had been an omission in drawing his attention to a contradiction with his statement recorded in the Court of the Committing Magistrate. He added that there were many other things to be seen and made this request in the interest of justice. The Judge held that the ground for recall that the witness could not be cross-examined effectively would hardly justify the recall of the witness for further cross-examination. He further expressed his opinion that, even if the statement attributed to the witness as having been made by him in the Court of the Committing Magistrate is brought on the record. it would not help the appellant to any appreciable degree in his defence. On these grounds, the application was rejected. Arguments were then heard on the same day and judgment was delivered on 13th March, 1967, convicting the appellant for the offence of murder under S. 302, I.P.C. and sentencing him to death. The appellant appealed in the High Court of Allahabad and the Tempy. Sessions Judge also made a reference for confirmation of the sentence of death. The High Court dismissed the appeal, accepted the reference and confirmed the sentence of death. The appellant has now come up to this Court against that judgment of the High Court in appeal by special leave.
(2.)In this case, the principal ground urged on behalf of the appellant raises an important question of law. Learned counsel appearing for the appellant emphasised the circumstance that the amicus curiae counsel to represent the appellant was appointed by the Sessions Judge on the 28th February 1967 just when the trial was about to begin and this belated appointment of the counsel deprived the appellant of adequate legal aid, so that he was unable to defend himself properly. It was urged that the procedure adopted by the Court was not in accordance with law, so that, if the sentence of death, is carried out, the appellant will be deprived of his life in breach of his fundamental right under 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.
(3.)The main procedure for trial of a criminal case is laid down in the Code of Criminal Procedure and, in this case, there is no grievance that the procedure laid down therein was not followed by the Court of Session. The grievance, however, is that there are provisions supplementing the procedure laid down by the Criminal Procedure Code and the course adopted by the Court of Session was in breach of these supplementary rules. Reference was made to Rule 37 in Chapter V of the General Rules (Criminal) , 1957 (hereinafter referred to as 'Rs. the Rules") promulgated by the High Court of Allahabad in exercise of its powers under Article 227 of the Constitution and S. 554 of the Code of Criminal Procedure. These Rules were published under Notification No. 241/A/ VIII-a-1, dated September 4, 1956 in the Supplement to the Government Gazette of Uttar Pradesh dated 3rd November, 1956. The notification clearly mentions the powers under which the High Court promulgated the Rules and also contains a clear recitation that the Rules were being published with the previous approval of the Government of Uttar Pradesh. We have mentioned these details, because at one stage it was urged by learned counsel appearing for the respondent State Government that Rule 37 of the Rules had no statutory force at all. The notification in the Gazette makes it perfectly clear that these Rules were all framed by the High Court in exercise of the powers conferred on it by the Constitution or by the Code of Criminal Procedure. The Rules are, therefore, clearly statutory Rules and, as such, they form a part of the procedure for trial of criminal cases by courts subordinate to the High Court of Allahabad, in addition to the procedure laid down by the Code of Criminal Procedure.