Kisan Devka Pawar vs State Of Maharashtra
2002 Latest Caselaw 756 Bom

JUDGMENT

Smt. V.K. Tahilramani, J.

1. We have heard Mrs. Shobha Gopal learned advocate appointed amicus curiae for the appellant and the learned A.P.P. for the State. By consent, matter is finally heard at the admission stage itself. Paper books are dispensed with.

2. The appellant has preferred this appeal through jail. The appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to life imprisonment in Sessions Case No. 100 of 1999 by judgment and order dated 11th July, 2001 by the ad-hoc Additional Sessions Judge, Thane.

3. In this appeal, the appellant has prayed for re-trial. The contention of the appellant is that he was not provided legal aid for his defence and the entire trial was completed in the absence of any defence advocate who was representing the appellant.

4. We have also perused the entire record and proceedings of the present appeal. On perusal of the record, the facts which are revealed are as under:

That the appellant-accused was arrested on 11th February, 1998. His case was committed to the Sessions Court on 27th January 1999. The appellant had not engaged any advocate. On 22nd May, 1999 an application (Exhibit-4) was filed by the appellant for engaging advocate at Government costs (Legal aid). Thereafter, Shri S. B. Vaishampayan was appointed to defend the appellant by an order dated 11th June, 1999.

On 14th July 1999, Shri S. B. Vaishampayan appeared for the appellant. Thereafter the case was adjourned from time to time. On at least half of the occasions, the learned Advocate Shri S. B. Vaishampayan remained absent.

5. Thereafter, on 16th February, 2000 Shri S.B. Vaishampayan for the appellant was present. On that day, the A.P.P. filed an application under Section 294 of the Code of Criminal Procedure and certain documents came to be admitted in evidence. Thereafter witness summons were issued. However, on the next date as the learned advocate for the appellant was absent, the witnesses were discharged.

6. Thereafter on many occasions Shri S.B. Vaishampayan remained absent. On llth October 2000 the appellant again preferred an application (Exhibit-11) that he may be provided counsel from legal aid panel. Hence, a letter was issued to the learned advocate Shri S. B. Vaishampayan that if he is not willing to work another advocate can be appointed. However, thereafter, on 13th February, 2001 the advocate remained present. Again on the next two occasions i.e. on 13th March 2001 and 10th April 2001 he remained absent. Hence, a letter was issued to the advocate informing him that the case is fixed for hearing on 9th May, 2001. Thereafter, on 9th May, 2001 four witnesses were present, however, the said witnesses were discharged as the learned advocate was absent.

7. Thereafter, by an order dated 9th May, 2001, the case came to be transferred to 1st ad-hoc Additional District Judge and Additional Sessions Judge, Thane for disposal. The summons were issued to the witnesses on 12th June, 2001. On 28th June, 2001 the learned advocate for the appellant was again absent.

8. On 4th July, 2001, the learned advocate for the appellant was absent though the case was repeatedly called out. On that day four witnesses came to be examined. The case was then adjourned to 9th July 2001. Again the learned advocate for the appellant was absent when the case was called out repeatedly. On that day, the witnesses No. 5 and 6 were examined and then the application (pursis) was preferred by the A.P.P. for closing the case. On both the days the appellant was asked to cross-examine the witnesses. The appellant cross-examined P.W. Nos. 1, 2, 3, 4, and 6 and declined to cross-examine P.W. 5. The cross-examination mostly consists of one sentence only. Thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The case was adjourned for judgment to 11th July 2001. On 11th July 2001, the judgment was delivered and the accused came to be convicted under Section 302 of the Indian Penal Code and sentenced of life imprisonment. It is in these circumstances that the accused came to be convicted and sentenced.

9. On 4th July, 2001, when the first four witnesses were examined, it appears that the appellant did not make any fresh request to the trial Judge praying for appointment of another counsel from the legal aid panel. It appears that the trial Court on its own also did not appoint another counsel from the legal aid panel, which in our opinion, the Trial Court ought to have done.

10. It is undoubtedly the right of the appellant to be provided with free legal assistance. It is now well established as a result of the decision of the Apex Court in Hussainara Khatoon's case, 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 a 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 the Apex Court earlier in M.H. Hoskot v. State of Maharashtra, . 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 involve jeopardy to his life or personal liberty and this fundamental reasonable, fair and just procedure prescribed by Article 21."

11. The Apex Court has observed in the case of Suk Das and Anr. v. Union Territory of Arunachal Pradesh, , that "this fundamental right is available to the accused even if he does not make any application for free legal assistance. 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 service. Legal aid would become merely a paper promise and it would fail of its purpose."

12. The Apex Court has ruled in the Case of Khatri v. State of Bihar, , that the Sessions Judge before whom the accused appears, must be held to be under an obligation to inform the 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. The Apex Court directed in the aforesaid case that "the Magistrates and Sessions Judges in the country to inform every accused who appears 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."

13. The right of a person who is charged with a crime, to get services of a counsel is deemed fundamental and essential to a fair trial in our country. In the present case, the result was that the appellant virtually remained unrepresented by a lawyer and the trial ultimately resulted in his conviction. This in our view, is 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 fatal constitutional infirmity and the conviction and sentence recorded against the appellant, must be set aside.

14. In the present case, when the counsel Shri S.B. Vaishampayan provided from the legal aid panel, did not turn up to defend the accused during the trial, in our opinion, it was the duty of the trial Court to get another counsel appointed from the legal aid panel in order to defend the accused. In our opinion, the procedure adopted by the trial Court was totally improper and incorrect. The appellant should have been given a fair chance to defend himself especially looking to the fact that the accused was facing a serious charge of Section 302. When Article 21 provides that no person shall be deprived of the life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be "reasonable, fair and just". Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through a trial without legal assistance, cannot possibly be regarded as "reasonable, fair and just". It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the Court's process that he should have legal services available to him.

15. The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even an intelligent and educated layman has small and sometimes no skill in the field of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of a counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he may have a perfect one. He requires the guiding hand of a counsel at every step in the proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence.

16. Therefore, in our opinion, the present trial without legal assistance cannot possibly be regarded as reasonable, fair and just. The trial is clearly vitiated on account of this fatal infirmity and therefore, the conviction and sentence recorded against the appellant deserves to be set aside.

Before parting with this judgment, we would like to record our severe displeasure at the conduct of the learned Advocate Shri S.B. Vaishampayan who was appointed from the legal aid panel to defend the appellant. Besides the dates specifically mentioned by us, he has remained absent on a large number of days during the course of the trial of this case. We were aghast at the casual, cavalier, callous and totally indifferent approach of the learned Advocate.

For the reasons stated as above, the Appeal is allowed.

The conviction and sentence recorded against the appellant is set aside. The case is remanded back to the trial Court for fresh trial. The trial to be completed expeditiously. The Record and Proceedings to be sent back to the trial Court forthwith. The appellant to be produced before the concerned Sessions Judge on 23-8-2002. The office to communicate this order to the Jailor and the appellant who is in Yerawada Jail.