Surrinder Kumar vs State
1996 Latest Caselaw 51 Del

JUDGMENT

Jaspal Singh, J.

(1) Law is nothing unless close behind it stands a warm, living and a vigilant Judge. It is not for nothing that it is said that the world can be re- imagined and reinvented through the rule of law in the court room. Unfortunately what one notices in this case is not that hand that paints Rembrandt or a Van Gogh but a shadow. What is enshrined in Article 21 of the Constitution is consequently, the first victim.

(2) The appellant has been convicted under Section 392 of the Penal Code and has been sentenced to undergo rigorous imprisonment for five years. His grievance is that during the trial he was unrepresented and was made to conduct the proceedings and to defend himself without the assistance of a lawyer though he is illiterate and ignorant of the rules of the game and that the learned trial Judge neither thought of coming to his help by lending his own skills nor by even offering a lawyer at State expense. Unfortunately, the record supports him. The learned Judge just overlooked it. He probably took it to be of no consequence. He also took no serious note of the fact that the accused could not be credited with the skill and knowledge essential to prepare his defense and that he needed the guiding hand of a counsel at every step of the proceeding against him.

(3) As far back as in the year 1979 the Supreme Court had emphasised in Hussain Ara Khatoon vs. State of Bihar; that free legal service is an inalienable element of reasonable, fair and just procedure and that the right to free legal service must be held implicit in the guarantee of Article 21. In Khatri Vs. State of Bihar; 1981 Criminal Law Journal 470 the Supreme Court again laid emphasis to provide free legal services and termed it as a "Constitutional obligation". In Sukh Das v. Union Territory of Arunachal Pradesh 1986 Cri Lj 1084, it was re-emphasised by the Supreme Court that entitlement to free legal aid is not dependent on the accused making an application to that effect and that the court is obliged to inform the accused of his right to obtain free legal aid.

(4) The Judge can know no other master than the law, in its most objective sense. As Sir Robert Megany put it : "The Judge's duty is one of obedience to the law and to his judicial conscience. He must do not what he wants to do but what he ought to do."

(5) If the Judges fail, the rule of law will fail. It is as simple as that. Here one discerns that failure. What should then be done?

(6) The incident is of April 1991. The petitioner, I am informed, has already undergone a long period of incarceration extending to almost 21 months. I was faced with a similar situation in the above cited case of State (Delhi Admn.) Vs. Balram Singh. In that case the charge was framed on April 11, 1983 and I had observed :

"ALMOST ten years have rolled by since then. We are not prepared to keep the accused anymore under indefinite suspense because the trial Magistrate omitted to do his duty.(Manchander v. State of Hyderabad We feel that any further proceedings would be oppressive and unwarranted. (Abdal Rehman Antulay v. R.S.Nayak 1991 (6) Jt 431 at p. 461). Has not the Supreme Court observed:

"JUSTICE is not one sided. It has many facets and we have to daw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed.".(Machander v. State of Hyderabad (supra); See also Union of India v. G.k.Appte AlR 1971 Sc 1533 at 1537; Veerbhadra v. Ramaswamy Naickar 1959 Scr 1211; Chajju Ram v. Radhey Sham 1971 (Suppl) Scr 172."

TO ask the accused again to stand fresh trial would be like roasting him at slow fire. We would hate to see him undergo that ordeal again. The accused thus stands acquitted."

(7) I see no reason to take a different view. The conviction reached is clearly vitiated. (See Sukh Das v. Union Territory of Arunachal Pradesh 1986 Cri Lj 1084). The appeal is consequently accepted. The judgment and conviction and the order of his sentence stand set aside. Let the appellant be released forthwith, if not required in any other case.