Full Judgment Text
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PETITIONER:
SUK DAS & ANR.
Vs.
RESPONDENT:
UNION TERRITORY OF ARUNACHAL PRADESH
DATE OF JUDGMENT10/03/1986
BENCH:
BHAGWATI, P.N. (CJ)
BENCH:
BHAGWATI, P.N. (CJ)
MADON, D.P.
OZA, G.L. (J)
CITATION:
1986 AIR 991 1986 SCR (1) 590
1986 SCC (2) 401 1986 SCALE (1)368
CITATOR INFO :
D 1988 SC1531 (183)
ACT:
Constitution of India, Art.21 - Accused on account of
poverty unable to afford legal representation - Duty of
court to inform him that he can have a lawyer at State
expense Effect of not providing legal representation to the
accused at State cost - Whether vitiates trial.
HEADNOTE:
The appellant and five other accused were charged in
the Court of Addl. Deputy Commissioner for an offence under
section 506 read with section 34 of the Indian Penal Code on
the allegation that they threatened an Assistant Engineer of
the Central Public Works Department with a view to
compelling him to cancel the transfer orders of the accused
which had been passed by him. The appellant was not
represented by any lawyer since he was admittedly unable to
afford legal representation on account of his poverty and
the result was that he could not cross-examine some of the
witnesses of the prosecution. At the end of the trial, four
of the accused were acquitted but the appellant and another
accused were convicted of the aforesaid offence and he was
sentenced to undergo simple imprisonment for a period of two
years.
The appellant thereupon preferred an appeal before the
High Court contending that he was not provided free legal
aid for his defence and the trial was, therefore, vitiated.
The High Court upheld the conviction of the appellant on the
ground that no application for legal aid was made by him
before the Addl. Deputy Commissioner and therefore, it could
not be said that failure to provide legal assistance
vitiated the trial.
Allowing the appeal,
^
HELD : (1) The conviction and sentence recorded against
the appellant is set aside and the order dismissing the
591
appellant from service passed on the basis of his conviction
by the learned Additional Deputy Commissioer must also be
quashed. [597 C]
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(2)(i) It is settled law that free legal assistance at
State cost is a fundamental right of a person accused of an
offence which may involve jeopardy to his life of personal
liberty and this fundamental right is implicit in the
requirement of reasonable, fair and just procedure
prescribed by Article 21. Of course, it must be recognised
that there may be cases involving offences, such as economic
offences or offences against law prohibiting prostitution or
child abuse and the like, where social justice may require
that free legal service may not be provided by the State.
[594 G-H]
Hussainara khatoon’s case, [1979] 3 S.C.R. 532 & M.H.
Hoskot V. State of Maharashtra [1978] 3 S.C.C. 544 followed
(2)(ii) The right to free legal service is a
constitutional right of every accused person who is unable
to engage a lawyer and secure legal service on account of
reasons, such as, poverty, indigence or incummunicado
situation and the State is under a mandate to provide a
lawyer to an accused person if the circumstances of the case
and the needs of the justice so require, provided, of
course, the accused person does not object to the provision
of such lawyer. It would make a mockery of legal aid if it
were to be left to a poor ignorant and illiterate accused to
ask for free legal services. Legal aid would become merely a
paper promise and it would fail of its purpose. [594 D-F;
595 G]
Khatri & Ors. v. State of Bihar & ors., [1981] 2 S.C.R.
408 referred to.
In the instant case, the Additional Deputy Commissioner
did not inform the appellant that he was entitled to free
legal assistance nor did he enquire from the appellant
whether he wanted a lawyer to be provided to him at State
cost. The result was that the appellant remained
unrepresented by a lawyer and the trial ultimately resulted
in his conviction. This was clearly a violation of the
fundamental right of the appellant under Article 21 and the
trial must accordingly be held to be vitiated on account of
a fatal constitutional
592
infirmity, and the conviction and sentence recorded against
the appellant must be set aside. [596 H; 597 A-B]
[In the facts and circumstances of the case, the Court
directed that the appellant shall be reinstated in service,
but he shall not be entitled to claim any back wages and no
fresh trial shall be held against him.] [597 F-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.725 of 1985.
From the Judgment and Order dated 9.8.84 of the Gauhati
High Court in Crl. Revision No. 205 of 1979.
Vijay Hansaria and S.K. Jain for the Appellant.
Abdul Khader, G. Chandra and Ms. A. Subhashini for the
Respondent.
The Judgment of the Court was delivered by
BHAGWATI, C.J. This appeal by special leave raises a
question of considerable importance relating to the
administration of criminal justice in the country. The
question is whether an accused who on account of his poverty
is unable to afford legal representation for himself in a
trial involving possibility of imprisonment imperilling his
personal liberty, is entitled to free legal aid at State
cost and whether it is obligatory on him to make an
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application for free legal assistance or the Magistrate or
the Sessions Judge trying him is bound to inform him that he
is entitled to free legal aid and inquire from him whether
he wishes to have a lawyer provided to him at State cost: if
he is not so informed and in consequence he does not apply
for free legal assistance and as a result he is not
represented by any lawyer in the trial and is convicted, is
the conviction vitiated and liable to be set aside? This
question is extremely important because we have almost 50%
population which is living below the poverty line and around
70% is illiterate and lange sections of people just do not
know that if they are unable to afford legal representation
in a criminal trial, they are entitled to free legal
assistance provided to them at State cost.
593
The facts giving rise to this appeal are not material
because the question posed for our consideration is a pure
question of law. But even so the broad facts may be briefly
set out since they provide the back-drop against which the
question of law arises for consideration.
The appellants and five other accused were charged in
the court of the Additional Deputy Commissioner, Dibang
Valley, Anini, Arunachal Pradesh for an offence under
section 506 read with Section 34 of the Indian Penal Code on
the allegation that the appellants and the other five
accused threatened Shri H.S. Kohli, Assistant Engineer,
Central Public Works Department, Anini with a view to
compelling him to cancel the transfer orders of the accused
which had been passed by him. The case was tried as a
warrant case and at the trial 8 witness, on behalf of the
prosecution, were examined. The appellant was not
represented by any lawyer since he was admittedly unable to
afford legal representation on account of his poverty and
the result was that he could not cross-examine the witnesses
of the prosecution. The appellants wished to examine 7
witnesses in defence but out of them two could not be
examined since they were staying far away and moreover, in
the opinion of the court, they were not material witnesses.
The remaining 5 witnesses were examined by the appellants
without any legal assistance. The result was that at the end
of the trial four of the other accused were acquitted but
the appellant and another accused were convicted of the
offence under Section 506 of the Indian Penal Code and they
were sentenced to undergo simple imprisonment for a period
of two years.
The appellant thereupon preferred an appeal before the
Gauhati High Court. There were several contentions urged in
support of the appeal but it is not necessary to refer to
them, since there is one contention which in our opinion
goes to the root of the matter and has invalidating effect
on the conviction and sentence recorded against the
appellant. That contention is that the appellant were not
provided free legal aid for his defence and the trial was
therefore vitiated. This self-same contention was also
advanced before the High Court in the appeal preferred by
the appellant but the High Court took the view that, though
it was undoubtedly the right of the appellant to be provided
free legal assistance, the appellant did no make any request
to the learned Additional Deputy
594
Commissioner praying for legal aid and since no application
for legal aid was made by him, "it could not be said in the
facts and circumstances of the case that failure to provide
legal assistance vitiated the trial". The High Court in the
circumstances confirmed the conviction of the appellant but
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in view of the fact that he was already in jail for a period
of nearly 8 months, the High Court held that the ends of
justice would be met if the sentence on the appellant was
reduced to that already undergone by him. The appellant was
accordingly ordered to be, set at liberty forthwith but
since the order of conviction passed against him was
sustained by the High Court, he preferred the present appeal
with special leave obtained from this Court.
It is now well established as a result of the decision
of this Court in Hussainara Khatoon’s case [1979] 3 S.C.R.
532 that "the right to free legal service is ..........
clearly an essential ingredient of reasonable, fair and just
procedure for a person accused of an offence and it must be
held to be implicit in the guarantee of Article 21. This is
a constitutional right of every accused person who is unable
to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado
situation and the State is under a mandate to provide a
lawyer to an accused person if the circumstances of the case
and the needs of justice so require, provided of course the
accused person does not object to the provision of such
lawyer". This Court pointed out that it is an essential
ingredient of reasonable, fair and just procedure to
prisoner who is to seek his liberation through the court’s
process that he should have legal service available to him.
The same view was taken by a Bench of this Court earlier in
M.H. Hoskot v. State of Maharashtra, [1978] 3 S.C.C. 544. It
may therefore now be taken as settled law that free legal
assistance at State cost is a fundamental right of a person
accused of an offence which may involved jeopardy to his
life or personal liberty and this fundamental right is
implicit in the requirement of reasonable, fair and just
procedure prescribed by Article 21. Of course, it must be
recognised that there may be cases involving offences, such
as economic offences or offences against law prohibiting
prostitution or child abuse and the like, where social
justice may require that free legal service may not be
provided by the State. There can in the circumstances be no
doubt that the
595
appellant was entitled to a free legal assistance at State
cost when he was placed in peril of their personal liberty
by reason of being accused of an offence which is proved
would clearly entail imprisonment for a term of two years.
But the question is whether this fundamental right
could lawfully be denied to the appellant if he did not
apply for free legal aid. Is the exercise of this
fundamental right conditioned 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? Now it is common knowledge that about 70% of the
people living in rural areas are illiterate and even more
than that percentage of the people are not aware of the
rights conferred upon them by law. Even literate people do
not know what are their rights and entitlements under the
law. It is this absence of legal awareness which is
responsible for the deception, exploitation and deprivation
of rights and benefits from which the poor suffer in this
land. Their legal needs always stand to become crisis
oriented because their ignorance prevents them from
anticipating legal troubles and approaching a lawyer for
consultation and advise in time and thier poverty magnifies
the impact of the legal troubles and difficulties when they
come. Moreover, because of their ignorance and illiteracy,
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they cannot become self-reliant: they cannot even help
themselves. The law ceases to be their protector because
they do not know that they are entitled to the protection of
the law and they can avail of the legal service programme
for putting an end to their exploitation and winning their
rights. The result is that poverty becomes with them a
condition of total helplessness. This miserable condition in
which the poor finds themselves can be alleviating to some
extent by creating legal awareness amongst the poor. That is
why it has always been recognised as one of the principal
items of the programme of the legal aid movement in the
country to promote legal literacy. It would in these
circumstances make a mockery of legal aid if it were to be
left to a poor ignorant and illiterate accused to ask for
free legal services. Legal aid would become merely a paper
promise and it would fail of its purpose. This is the reason
why in Khatri & Ors. v. State of Bihar & Ors., [1981] 2
S.C.R. 408, we ruled that the Magistrate or the Sessions
Judge before whom an accused appears must be held to be
under an obligation to inform the
596
accused that if he is unable to engage the services of a
lawyer on account of poverty or indigence, he is entitled to
obtain free legal services at the cost of the State. We
deplored that in that case where the accused were blinded
prisoners the Judicial Magistrate failed to discharge
oblligation and contented themselves by merely observing
that no legal representation had been asked for by the
blinded prisoners and hence none was provided. We
accordingly directed "the Magistrates and Sessions Judges in
the country to inform every accused who appear before them
and who is not represented by a lawyer on account of his
poverty or indigence that he is entitled to free legal
services at the cost of the State" unless he is not willing
to take advantage of the free legal services provided by the
State. We also gave a general direction to every State in
the country "........ to make provision for grant of free
legal service to an accused who is unable to engage a lawyer
on account of reasons such as poverty, indigence or
incommunicado situations," the only qualification being that
the offence charged against an accused is such that, on
conviction, it would result in a sentence of imprisonment
and is of such a nature that the circumstances of the case
and that the needs of social justice require that he should
be given free legal representations. It is quite possible
that since the trial was held before the learned Additional
Deputy Commissioner prior to the declaration of the law by
this Court in Khatri & Ors. v. State of Bihar (supra), the
learned Additional Deputy Commissioner did not infrom the
appellant that if he was not in a position to engage a
lawyer on account of lack of material resources he was
entitled to free legal assistance at State cost nor asked
him whether he would like to have free legal aid. But it is
surprising that despite this declaration of the law in
Khatri & Ors. v. State of Bihar & Ors. (supra) on 19th
December 1980 when the decision was rendered in that case,
the High Court persisted in taking the view that since the
appellant did not make an application for free legal
assistance, no unconstitutionality was involved in not
providing him legal representation at State cost. It is
obvious that in the present case the learned Additional
Deputy Commissioner did not inform the appellant that he was
entitled to free legal assistance nor did he inquire from
the appellant whether he wanted a lawyer to be provided to
them at State cost. The result was that the appel-
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597
lant remained unrepresented by a lawyer and the trial
ultimately resulted in his conviction. This was clearly a
violation of the fundamental right of the appellant under
Article 21 and the trial must accordingly be held to be
vitiated on account of a fatal constitutional infirmity, and
the conviction and sentence recorded against the appellant
must be set aside.
The appellant contended that if the conviction and
sentence recorded against him is set aside, the order
dismissing the appellant from service passed on the basis of
his conviction by the learned Additional Deputy Commissioner
must also be quashed and he must be reinstated in service
with back wages. Now it is true that the appellant was
dismissed from service without holding an inquiry on account
of his being convicted for a criminal offence and since the
conviction of the appellant is being set aside by us, the
order of dismissal must also fall and the appellant must be
reinstated in service with back wages. But the result of our
quashing the conviction of the appellants would be that the
appellant would have to be tried again in accordance with
law after providing free legal assistance to him at State
cost and that would mean that the appellant would continue
to be exposed to the risk of conviction and imprisonment and
the possibility cannot be ruled out that the offence charged
may ultimately be proved against him and he might land-up in
jail and also lose their service. We therefore felt that it
would not only meet the ends of justice but also be in the
interest of the appellant that no fresh trial should be held
against him and he should be reinstated in service but
without back wages. We accordingly direct that the appellant
shall be reinstated in service but he shall not be entitled
to claim any back wages and no fresh trial shall be held
against him. The appeal will stand disposed of in these
terms.
M.L.A. Appeal allowed.
598