Punjab-Haryana High Court
Union Of India And Ors vs N. Saravanan on 14 October, 2014
Bench: Satish Kumar Mittal, Deepak Sibal
L. P. A. No. 585 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
L. P. A. No. 585 of 2014
Date of Decision : October 14, 2014
Union of India and others .... Appellants
Vs.
N. Saravanan .... Respondent
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE DEEPAK SIBAL.
* * *
Present : Mr. Kunal Dawar, Advocate
for the appellants.
Ms. Divya Sharma, Legal Aid Counsel
for the respondent.
* * *
DEEPAK SIBAL, J. :
The present intra-court appeal filed by the Union of India challenges order dated 26.07.2013 passed by a learned Single Judge of this Court allowing the writ petition filed by the respondent. The appeal further challenges the order dated 03.02.2014 passed by the learned Single Judge dismissing the Review Application filed by the appellants seeking review of the order dated 26.07.2013.
MONIKA
The factual matrix of the matter, in brevity, leading to the filing 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 2 of the present appeal are that the respondent, who was originally a resident of the State of Tamil Nadu joined the Border Security Force as a Constable. During the course of his duties, he was posted on the India-Pakistan Border in Punjab. On 05.08.2005, when the respondent along with other Constables and Head Constables was on duty, it was alleged that he had caused the death of a fellow Constable namely Constable Mr. Phurba Yalmo. Resultantly, a General Security Force Court was convened and the respondent was tried under Section 302 IPC. The proceedings of the General Security Force Court (hereinafter referred to as `the Court') show that the respondent, who was originally a resident of the State of Tamil Nadu, pleaded before the Court that he be allowed to engage a Civil Counsel from the State of Tamil Nadu as he could only communicate with him. He informed the Court that he had contacted one lawyer and he be permitted to engage him for defending him. He further informed the Court that the lawyer had told him that he would be available to defend him by the first or second week of August 2006. Shockingly, the Prosecutor objected to this request made by the respondent. Considering the request made by the respondent and objections of the Prosecutor, the Court granted only two days' time to the respondent i.e. 8th and 9th July 2006 to enable him to engage counsel. The Court re-assembled on July 10, 2006 and as virtually no reasonable time had been given to the respondent to engage a counsel, it was no surprise that the respondent could not engage the services MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 3 of a counsel. Pushed to the wall, the respondent, in these unavoidable circumstances, was apparently coerced to give up his claim to engage a counsel. At this stage, it may be observed that the Court made no attempt to provide free legal aid to the respondent. Further, it may be brought on record that the Defending Officer, provided to the respondent, was one Shri Satnam Singh, who was a Punjabi and apparently was not in the knowledge of the language of the respondent.
Predictably, the trial ended in conviction of the respondent and as a result of such conviction, the respondent was sentenced to life. He was taken in custody. We are told that till date, he has served a sentence of about nine years and is lodged in Central Prison at Madurai, Tamil Nadu.
Aggrieved by the order of conviction and sentence, as also his dismissal from service, the respondent approached this Court through Criminal Writ Petition No. 559 of 2007 titled N. Saravanan vs. Union of India and others. The writ petition was disposed of by this Court vide order dated 18.01.2008, granting liberty to the respondent to approach the Appellate Authority. In view of the liberty granted by this Court, the respondent filed a statutory petition/appeal dated 16.02.2008 before the Appellate Authority. The same was returned on 26.02.2008 on hyper- technical issues that there was no Power of Attorney on the record etc. Since the respondent was in jail, there was delay in re-filing of the appeal, MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 4 as the same was re-filed on 12.12.2011. Vide order dated 23.01.2012, the appeal was dismissed by the Appellate Authority being time barred. This action, on the part of the appellants, was challenged by the respondent through a writ petition filed before this Court, which was heard and allowed by a learned Single Judge vide order dated 26.07.2013. The learned Single Judge gave the following directions to the appellants :-
"In any case, to promote the cause of substantial justice the trappings of procedure should not be used to cause injustice and therefore, I would direct that the appeal as originally filed and now after the defects have been removed should be entertained by the Appellate Authority and decided on merits.
Consequently, the impugned order dated 23.1.2012 is set aside and the appeal would be taken as deemed properly filed before the Appellate Authority. Since the petitioner is confined in Central Jail Trichy, Tamilnaidu, undergoing imprisonment for life, notice be issued by the appellate authority to him through Jail Superintendent, Central Jail Trichy to inform him that his appeal would be heard and decided on MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 5 merits. He would be free to engage a counsel of his choice or to be represented by any counsel on the list maintained by the BSF or to request for a counsel to represent him in appeal through the State Legal Services Authority, New Delhi.
The petition is allowed accordingly with the above directions."
Surprisingly, the appellants felt aggrieved by the above stated directions and filed an application before the Single Judge praying that the above reproduced directions be reviewed and that the order be modified to the extent that no hearing be allowed to the respondent before his statutory appeal/petition is to be decided by the competent authority. Finding the application to be frivolous, the learned Single Judge dismissed the same with exemplary costs by holding as under :-
"This application for review is patently frivolous. Rules of natural justice have to be read into all statutory rules. If the intention of the BSF is to decide the statutory appeal without associating the petitioner then this review application deserves to be dismissed with costs of Rs.20,000/- to be paid to the UT State Legal Services Authority.
MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 6
Ordered accordingly.
Ms. Divya Sharma, Advocate appears at this stage for the non-applicant/petitioner and submits that there has been enough delay on the part of the respondent-BSF in deciding the statutory appeal and then by coming to this Court in the present review petition. She seeks a time bound direction to the BSF to decide the statutory appeal within a reasonable time.
The request is fair and reasonable and sufficient in the review jurisdiction of this Court to further order that the statutory appeal will be heard within two months from the date of receipt of a certified copy of the order after giving effective opportunity of personal hearing to the petitioner even if it means that the statutory Appellate Authority holds the proceedings in Trichy Jail. The non-applicant/petitioner may avail services of counsel from the State Legal Services Authority available at Trichy in case proceedings are held there, or accordingly at New Delhi."
MONIKA Aggrieved by the above reproduced orders passed by the 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 7 learned Single Judge, the Union of India is in appeal before us.
We have heard learned counsel for the parties and with their valuable assistance, have also gone through the record.
Learned counsel appearing on behalf of the appellants submits that the appellants have no objection to deciding the appeal/petition preferred by the respondent. However, the appellants are aggrieved by the direction passed by the learned Single Judge to give effective opportunity of personal hearing to the respondent before deciding his appeal/petition. In support of his submission, learned counsel relies on a judgment of the Apex Court in Union of India and others vs. Ex-Constable Amrik Singh reported as 1991 (1) SCC 654.
The facts as enumerated above show that the respondent, who is an original resident of Tamil Nadu, was tried by General Security Force Court under Section 302 IPC. The proceedings of the General Security Force Court clearly show that he requested for being granted permission to engage a Civil Lawyer from his Home State i.e. State of Tamil Nadu. This was primarily for the reason that he wanted legal assistance and that too, from a person with whom he could communicate. Record of the trial further reveals that he had been able to contact one such lawyer, who had consented to represent the respondent, but was available only in the first/second week of August 2006. Accordingly, a request was made by him to the Court requesting that the trial be adjourned to the first/second week MONIKA of August 2006 so that he could get effective legal assistance. The Court 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 8 did not accept the request made by the respondent and granted him an unreasonable two days' time to engage a counsel. The matter was adjourned for two days, on which date, as it was practically impossible for the respondent to engage a counsel, the matter was taken up and he was forced into making a statement that he did not want to engage a counsel. The proceedings of the trial further reveal that no legal assistance from a Legal Aid Counsel was even offered by the Court and the respondent was simply provided with a Defending Officer, who was a Punjabi, with whom the respondent could not communicate at all. Thus, the respondent was not granted any legal assistance and the Defending Officer, who was provided, was also ineffective. The trial was conducted leading to the predictable conviction of the respondent under Section 302 IPC and the award of sentence of life imprisonment to him. Challenging his conviction and sentence, the respondent had preferred a statutory appeal/petition.
The learned Single Judge has directed that the appeal/petition filed by the respondent, even though time barred, be heard by the competent authority. The learned Single Judge further directed that before the appeal/petition filed by the respondent is decided, the competent authority may grant personal hearing to the respondent or hear his counsel. We are shocked that the direction to hear the respondent or his counsel before deciding his petition/appeal by the competent authority aggrieves the Union of India. The conscience of this Court shakes when the Union of India MONIKA vehemently presses the present appeal and urges this Court to set aside the 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 9 direction given by the learned Single Judge to grant personal hearing or hear the counsel for the respondent before deciding his appeal/petition. All that the respondent wants is that he may be heard or that his counsel may be heard before a statutory appeal/petition is decided by the competent authority. We wonder what is illegal and objectionable about this, especially in the facts of the case in hand.
The Courts have a duty to maintain public confidence and to uphold the majesty in the law. The Court is to act as an effective instrument in dispensing justice and not a mute spectator. Public confidence would be shattered if a citizen of our Country is not heard before he is convicted or that his appeal/petition against such conviction is decided without giving him any opportunity of being heard. An important ingredient of fair procedure to a prisoner, who has a right to seek his liberation through a process established by law, is to hire the services of a lawyer. A layman is usually ignorant of his legal rights and is not well-versed with procedural laws. There can be no other opinion that a prisoner is entitled to legal assistance. Grant of hearing and legal assistance to a prisoner, according to us, is embodied in the right to life and personal liberty, as enshrined under Article 21 of the Constitution of India. In case a litigant, especially a prisoner, is not capable of engaging the services of a lawyer, the State should provide it. In the case in hand, no such legal assistance was provided at the time of trial and unfortunately, the same, when ordered to be MONIKA provided to the respondent by learned Single Judge, is objected to by the 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 10 appellants. At this stage, it would also be useful to refer to Article 39-A of the Constitution of India, wherein a provision has been made for equal justice and free legal aid. As per Article 39-A, the State is, thus, put under an obligation to secure that the operation of legal system promotes justice on the basis of equal opportunity and is in particular required to provide free legal aid by suitable legislation or scheme or any other way, to ensure that opportunities to secure justice are not denied to any citizen by reasons of economic or other disabilities.
Since the case in hand pertains to a member of Border Security Force, Rule 123 of the Border Security Force Rules, 1969 can also be usefully referred to. The same is reproduced below :-
"Requirements for appearance of counsel. (1) An accused person intending to be represented by a counsel shall give to his Commandant or to the Convening Officer the earliest applicable notice of such intention, and, if no sufficient notice has been given the court may, if it thinks fit, on the application of the prosecutor, adjourn to enable him to obtain a counsel on behalf of the prosecutor at the trial.
(2) Where the convening Officer so MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 11 directs, counsel may appear alongwith the prosecutor, but in that case, unless the notice referred to in sub-rule (1) has been given by the accused, notice of the direction for counsel to appear shall be given to the accused at such time (not in any case less than seven days) before the trial as would, in the opinion of the Court, have enabled the accused to obtain counsel to. assist him at the trial.
(3) The counsel, who appears, before a Court on behalf of the prosecutor or accused, shall have the same rights as the prosecutor or accused for whom he appears to call, and orally examine, cross-examine, and re-examine witnesses, to put in any plea, and to inspect the proceedings and shall have the right otherwise to act in the course of the trial in place of the person on whose behalf he appears, and he shall comply with these rules as if he were that person and in such a case that person shall MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 12 have no right himself to do any of the aforesaid matters except as regards the statement allowed by sub- rule (2) of rule 93 and sub-rule (4) of Rule 101 or except so far as the court permits him so to do. (4) When counsel appears on behalf of the prosecutor, the prosecutor if called as witness, may be examined and re-examined as any other witness."
The facts of the case clearly reveal that in the case in hand, the provisions of the above reproduced rule have been given a complete go-bye.
In Hussainara Khatoon and others vs. Home Secretary, State of Bihar, Patna reported as AIR 1979 Supreme Court 1369, the trial and conviction was set aside only on the ground that the accused was not offered any legal aid, where he was unable to engage a lawyer. It was held that the procedure, which does not make available legal services for the accused cannot possibly be regarded as reasonable, fair and just. Reference can also be made to Madhav Hayawadanrao Hoskot vs. State of Maharashtra reported as AIR 1978 Supreme Court 1548. Similarly, in Sukh Das and another vs. Union Territory of Arunanchal Pradesh reported as 1986 (2) RCR (Criminal) 132 : 1986 (2) RCR (Criminal) 437 : AIR 1986 Supreme Court 991 and Khatri and others MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 13 vs. State of Bihar and others reported as AIR 198 Supreme Court 928, where the trial without offering legal aid to an indigent accused at State cost was held to be vitiated and conviction set-aside.
In a recent judgment, the Apex Court in Mohd. Hussain @ Julfikar Ali vs. The State (Govt. of NCT) Delhi reported as 2012 (2) SCC 584 has held as under :-
"11. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, 2006(2) R.C.R.(Criminal) 448 : 2006 (1.) Apex Criminal 649 : (2006)3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated:
"35. This Court has often MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 14 emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 15 protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording. machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."
12. In M.H. Hoskot v. State of Maharashtra, 1978(3) SCC 544, this Court has MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 16 held:
"14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo- American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said:
"What does it profit a poor and ignorant man that he is equal to his strong antagonist MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 17 before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?"
15. In the case of Khatri v. State of Bihar, (1981) 1 SCC 627, this Court has held:
"5. That takes us to one other important issue which arises in this case. It is clear from the particulars supplied by the State from the records of the various judicial Magistrates dealing with the blinded prisoners from time to time that, neither at the time when the blinded prisoners were produced for the first time before the Judicial Magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners. The records of the Judicial Magistrates show that no legal representation was provided to the blinded prisoners, because none of them asked for it MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 18 nor did the Judicial Magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it. The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail. It is difficult to understand how this state of affairs could be permitted to continue despite the decision of this Court in Hussainara Khatoon (IV) case. This Court has pointed out in Hussainara Khatoon (IV) case which was decided as far MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 19 back as March 9, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional 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. It is unfortunate that though this Court declared the right to legal aid as a fundamental right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. We regret this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 20 Article 141 that the law declared by this Court shall be binding throughout the territory of India. Mr K.G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficult to do so owing to financial constraints. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem v. Malcolm "the law does not permit any MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 21 Government to deprive its citizens of constitutional rights on a plea of poverty"
and to quote the words of Justice Blackmum in Jackson v. Bishop "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations". Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 22 reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time.
6. But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. There is so much tack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 23 this country to promote legal literacy. 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. The Magistrate or 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.
Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 24 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, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicable situation. The only qualification would be that the offence charged against the 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 the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 25 law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State."
It may be mentioned that in the case of Vijay Kumar vs. State of Punjab reported as 2012 (4) PLR 130, a Division Bench of this Court has also held that the conviction of an accused is liable to be set aside if he is not offered legal assistance. In that case, it has been held as under :-
"12. Every accused has a fundamental right to be defended by a counsel and to have a fair and impartial trial. The right to be heard is fundamental and essential for every judicial system. If the person is charged with a criminal offence and he is incapable, generally of determining for himself whether the indictment is good or bad and when is unfamiliar with the rules of evidence, then the aid of a competent counsel is must for a fair trial. Normally, an accused lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 26 it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Therefore, the competent legal assistance to the accused is mandatory for a fair trial.
15. Article 11 of the UDHR guarantees everyone charged with a penal offence all the guarantees necessary for the defence. The same reads as under:
"11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed."MONIKA
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16. These salutary features forming part of the International Covenants and UDHR are deep rooted in our constitutional scheme. Article 21 of the Constitution of India commands in emphatic terms that no person shall be deprived of his life or personal liberty except according to the procedure established by law and Article 22 (1) thereof confers on the person charged to be defended by a legal practitioner of his choice. Article 39 A of the Constitution of India casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other disabilities.
18. The right of a person charged with crime to have the services of a lawyer is . fundamental and essential for fair trial. The trial to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 28 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. The right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through counsel. One cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. Such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time looses his equilibrium in face of the charge. A guiding hand of counsel at every step in the proceeding is needed for fair trial. If it is true of MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 29 men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect. An accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence."
In Karnail Chand vs. State of Punjab reported as 2011 (3) PLR 174, a very similar issue came up for consideration of this Court. In that case also, the petitioner was a member of Border Security Force, who was, like the respondent, accused of murdering a Constable while on duty. He was also tried by the General Security Force Court and sentenced to life imprisonment. In his case as well, he was unable to defend himself as no counsel was provided to defend him. It was held that due to this, he suffered great prejudice and resultantly, holding that he had not been given a fair trial, his conviction was set aside. In his case also, this Court relied on Articles 21, 22 and 39-A of the Constitution of India along with Rule 123 of the Border Security Force Rules, 1969 to set aside his conviction. While allowing the Criminal Writ Petition preferred by Karnail Chand, this Court held as under :-
"14. The petitioner thereafter, informed the Court the he did not wish to engage any , counsel. The plea of the petitioner for providing a counsel at the State expense in the light of what is MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 30 recorded above would need to be appreciated. Having made substantive provision under the BSF Act, 1968 , the procedure is provided in the BSF Rules, 1969. Rule 123 of the Rules is relevant in this regard. So far as appearance of a counsel before the GSFC is concerned, this Rule provides that accused person intending to be represented by a counsel shall give to his own commandant or the convening officer the earliest practicable notice of such intention and if no sufficient notice has been given the Court may, if thinks fit, on the application of the prosecutor, adjourn to enable him to obtain a counsel on behalf of the prosecutor at the trial. Similarly, where the convening officer so directs, the counsel may appear on behalf of the prosecutor or accused, and the prosecutor then is under a corresponding obligation to give advance notice to the accused person intending to engage a counsel to represent the prosecution at the trial. Then the Rule also makes a provision in regard to the right of the counsel, who appears on behalf of the prosecutor MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 31 or the accused. The provisions of Rule 123 are as under :-
" 123.
Requirements for appearance of counsel.
(1) An accused person intending to be represented by a counsel shall give to his Commandant or to the Convening Officer the earliest applicable notice of such intention, and, if no sufficient notice has been given the court may, if it thinks fit, on the application of the prosecutor, adjourn to enable him to obtain a counsel on behalf of the prosecutor at the trial.
(2) Where the convening Officer so directs, counsel may appear alongwith the prosecutor, but in that case, unless the notice referred to in sub-rule (1) has been given by the accused, notice of the direction for counsel to appear shall be given to the accused at such time (not in any case less than seven days) before the trial as would, in the opinion of the Court, have enabled MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 32 the accused to obtain counsel to. assist him at the trial.
(3) The counsel, who appears, before a Court on behalf of the prosecutor or accused, shall have the same rights as the prosecutor or accused for whom he appears to call, and orally examine, cross-examine, and re-examine witnesses, to put in any plea, and to inspect the proceedings and shall have the right otherwise to act in the course of the trial in place of the person on whose behalf he appears, and he shall comply with these rules as if he were that person and in such a case that person shall have no right himself to do any of the aforesaid matters except as regards the statement allowed by sub- rule (2) of rule 93 and sub-rule (4) of Rule 101 or except so far as the court permits him so to do.
(4) When counsel appears on behalf of the prosecutor, the prosecutor if called as witness, may be examined and re-examined MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 33 as any other witness."
15. This regulates the general provision for requirement of appearance of a counsel before the GSFC. This Rule would not directly attend to the submission as has been advanced by the counsel for the petitioner. A similar provision exists under the Rules of procedure applicable to Army, Air Force etc. Rather the provisions of BSF Act have almost been borrowed from the similar provision of the Army Act. The provisions under the Army Rules are little elaborate as compared to those contained in the BSF Rules. The similar rule is made under the Army Rules 1957. Besides Army Rules 1957 makes a provision for allowing counsel to appear before the General and District Court Martial. Then there is specific provision made for counsel for the prosecution and, counsel for the accused and so also in regard to the general rules as to the counsel unlike Border Security Force Rules. There is a specific Section under the Army Act, 1950 empowering the authority to make rules in addition powers to MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 34 make regulation. Pursuant to this enabling provision, regulations known as Regulations for the Army have been framed by the Central .
Government and para 479 of the Regulation for Army, 1987(Revised edition), makes a provision of defence counsel for an accused of an offence, charged which is punishable with death. The provision has now been made even in terms of policy issued by the Army Headquarters that a person, who is accused of an offence punishable with death can be provided a counsel at the State expense. In this background, requirement has to seen, if the petitioner suffered any prejudice on account of a clear fiat issued to him that if he wishes to engage a counsel, he has to do so at his own cost. In other words it is required to be seen that if there was any legal obligation on the part of the respondentUOI to make a provision of the counsel at the State expense for the petitioner, who was accused of an offence for which he could be awarded a death penalty. In this context, only the right to fair trial, part of which would be a legal MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 35 assistance to an accused, who is indignant or who cannot afford a counsel, would arise.
16. Let us see if the State i.e. UOI has any obligation to provide a counsel at the State expense. The submission by the counsel for the petitioner is that not only a counsel was , required to be provided at the State expenses, but keeping in view the gravity of the offence such a counsel had to be a competent counsel and the counsel, who would be in a position to communicate with the. accused and take instructions from him. The counsel has placed before me a decision of a Division Bench of Delhi High Court in C. W.P. No. 2937 of 1995 (Ranjit Singh, Ex Sepoy v. Union of India), decided on 18.5.2002. It was a case where the counsel was provided to the accused of an offence under Section 302 Indian Penal Code at the State expense. The accused therein had made a request for . engaging the counsel, which was engaged by his father and was to be brought. His request was declined and counsel assigned at the State expense allowing to appear before the court MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 36 to defend the accused person. The submissions were made before the Court on the ground that the accused therein suffered prejudice as he did not know Hindi, English or Assamees, the language which was known to and was used by the counsel. The accused person knew only the Punjabi language and thus, he could not communicate with his counsel. In this context, the submission was that the petitioner was not provided with a counsel of his own choice, which violated his fundamental right under Article 21 of the Constitution of India. In this case, also, initially the accused person was asked to engage the counsel and he had declined to bear the expenses, but at later stage, the accused person was informed that counsel shall be provided to him where the fee of the counsel will be Rs. 250/- per day for the days counsel appeared before the General court Martial. The submission was that the defence counsel with requisite competence was not engaged to appear on behalf of the accused person. Reliance was placed on number of MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 37 decisions of the Supreme Court like Ranchod Mathur v. State of Gujarat, 1974 Cri. LJ 799, Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, 1979 Cri. LJ 1045, and Suk Das and another v. Union Territory of Arunachal Pradesh,1986 Cri. L.J. 1084 in support. The writ petition filed by the said petitioner was allowed by accepting this contention of the petitioner accused therein that he suffered a prejudice on account of not being given opportunity to engage the counsel of his own choice, which in a way violated his fundamental right as granted under Article 21 of the Constitution of India.
17. Question in regard to providing of counsel came up for consideration before this Court in Criminal Revision No. 1273 of 2007 (Boota Ram and another v. State of Punjab). This was a case where the appeal filed by an accused person was decided in 1 the absence of counsel engaged, who could not appear when the appeal was heard. The submission was that the decision MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 38 of the appellate court while deciding the appeal only after hearing the public prosecutor in absence of the counsel representing the appellants or the appellants therein was illegal procedure.
23. Apart from the right to counsel being part of right of life and liberty, the State is under obligation to provide equal justice and free legal aid. This Article in this regard clearly provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in a particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The manner in which Article 21 has received wide and extended interpretation would have extended scope in the light of the provisions made in Article 39A of the Constitution of India. It would be safe to say that by now it would be difficult to hold that the substance of doctrine of due process as well is not infused into the context of this Article, though MONIKA 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 39 it may otherwise appear conservative in nature." So far as the opportunity of hearing at the time of hearing of appeal is concerned, the Apex Court in Ram Naresh Yadav vs. State of Bihar reported as AIR 1987 Supreme Court 1500 has held that in criminal cases, the facts must be heard before the cases are decided on merits. That was a case where the High Court had dismissed a Criminal Appeal without hearing the appellant or his counsel, despite having noticed the fact that when the criminal appeals are called, none appeared. The Apex Court went on to hold that the convicts or accused must be heard before their cases are decided. The Apex Court observed that criminal cases can be disposed of on merits only and that too after hearing the accused or his counsel. It was directed that if no one came present, then the Court might appoint a counsel at the State expense to argue on behalf of the accused appellant.
The reliance of the appellants on Union of India and others vs. Ex-Constable Amrik Singh (supra) is misconceived. In that case, the Apex Court was considering the requirement of personal hearing against an order of the Summary Security Force Court and not General Security Force Court. Further, in that case, the accused in question had pleaded guilty. That being the position on facts of that case, the same cannot be applied to the case in hand.
In view of the above, the present appeal deserves to be MONIKA dismissed. It is further directed that the competent authority would permit 2014.11.05 14:09 I attest to the accuracy and integrity of this document L. P. A. No. 585 of 2014 40 the respondent/his counsel to raise all pleas in his appeal/petition, which are available to him in law including the plea to challenge his conviction on the ground that he was granted no legal assistance during his trial. The appellate authority would consider the appeal/petition and decide the same within a period of three months from the date of receipt of a certified copy of this order. It is expected by us that the appellate authority, while deciding the appeal/petition of the respondent, will consider the settled law by the Apex Court regarding the consequences of not providing legal help to an accused during his trial.
Costs are quantified at ` 50,000/- to be paid by the appellants to the respondent.
( SATISH KUMAR MITTAL ) ( DEEPAK SIBAL )
JUDGE JUDGE
October 14, 2014
monika
MONIKA
2014.11.05 14:09
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integrity of this document