Madras High Court
Chandra Prakash Gajurel vs The Inspector Of Police on 24 August, 2005
Author: D.Murugesan
Bench: D.Murugesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:24/08/2005
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
W.P.No.26833 of 2005
and
W.P.M.P.No.29279/2005
Chandra Prakash Gajurel .. Petitioner
-Vs-
1. The Inspector of Police
Airport Police Station
Meenambakkam, Chennai.
2. The Tamil Nadu State Legal
Services Authority represented
by its Administrative Officer
North Fort Road, Chennai-104
3. The Judicial Magistrate
Alandur, Chennai.
..Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
seeking to issue a Writ of Mandamus, directing respondents 2 and 3 to
forthwith nominate C.Vijayakumar, Advocate to defend the petitioner in CC
No.736/2004 pending before the 3rd respondent and direct the 3rd respondent to
conduct the examination in chief afresh after the nomination of the said
lawyer to appear on behalf of the petitioner.
For Petitioner :: Mr.K.Chandru
Senior Counsel for
Mr.D.Hariparanthaman
For Respondents:: Mr.K.Doraisamy,
Public Prosecutor,
assisted by
Mr.E.Sampathkumar
Govt. Advocate
:ORDER
Heard. Mr. K.Chandru, learned senior counsel appearing for the petitioner and Mr.K.Doraiswmy, learned Public Prosecutor for the respondents.
2. The petitioner was arrested on 20.8.2003 in Chennai in connection with the case in Cr.No.145/2003 for the alleged offences under Passport Act. Final report was filed after investigation and was taken on file in C.C. No.736/2004 for the alleged offences under Section 12(1)(b) and (d)(e) and 12(1A)(a) of Indian Passport Act. As the petitioner is a Nepali citizen and he does not have sufficient means to engage a lawyer of his choice, he made a request to the learned Magistrate to provide a lawyer of his choice at the cost of the State. For the said purpose, he filed a petition under Section 304 of the Code of Criminal Procedure. The said Section contemplates that in a trial before the Court of Session, in the event of the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expenses of the State. In this context, the petitioner has also quoted the name of an advocate Mr.C. Vijayakumar, having his office at l134, Thambu Chetty Street, Chennai-1 to defend him in the trial. The learned Magistrate, however, refused to accept his request on the ground that the name of the said advocate is not included in the panel of advocates of that court. Hence, the present Writ Petition is filed to issue a Writ of Mandamus to direct respondents 2 and 3 to nominate the said advocate to defend the petitioner in the said case, pending before the 3rd respondent and to direct the 3rd respondent to conduct the chief examination afresh.
3. Mr.K.Chandru, learned senior counsel appearing for the petitioner would submit that though the application was filed under Section304 of the Code of Criminal Procedure, the right to engage the lawyer of the choice of the petitioner could be traced under Section 303 of the Code of Criminal Procedure, which contemplates that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice. Hence, the petitioner may be permitted to engage the services of the lawyer of his choise.
4. Mr.K. Doraisamy, learned Public Prosecutor appearing for the respondents, on the other hand, would submit that in exercise of power under section 304 of the Code of Criminal Procedure, the State has identified names of Advocates and included them in the panel for each Court. The petitioner has requested an advocate, by name, Mr.C. Vijayakumar, to defend his case, though his name has not been included in the Court before which the petitioner is tried. Hence, the learned Public Prosecutor submitted that the petitioner cannot seek assistance of a lawyer in the event that the lawyers name does not find a place in the panel for the Court in question.
5. I have given my due consideration.
6. The right of an individual for assistance of a lawyer of his choice could be traced to Articles 21 and 22 of the Constitution of India. Article 21 provides that no person shall be deprived of his 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. The procedure which does not make available legal services to an accused person who is poor to afford a lawyer or has no sufficient means to engage a lawyer and therefore, he is compelled to face the trial without legal assistance, cannot positively be regarded as "reasonable, fair and just". The "reasonable, fair and just procedure" to an accused would be to make him available a legal service through an advocate of his choice.
7. The Apex Court in M.H. HOSKOT VS STATE OF MAHARASHTRA ( 1978 (3) SCC 544) while considering what is reasonable, fair and just procedure has held as follows:
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 which such supportive skill is absent for one side Free legal services to the poor and the needy is an essential element of any reasonable, fair and just procedure without a service of a lawyer an accused person would be denied reasonable, fair and just procedure.
8. Article 22(1) guarantees that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. To ensure the above guarantee, Article 39(A) was inserted as one of the directive principles by the Constitution (42nd Amendment Act 1976). The said Article directs The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities". While considering the scope of Article 39(A) the Apex Court in the judgment reported in HUSSAINARA KHATOON VS STATE OF BIHAR ( A.I.R. 19 79 SC 1369) has held as follows:
This Article also emphasizes that free legal service is an unalienable element of reasonable, fair and just procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, 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. 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 required, provided of course the accused person does not object to the provision of such lawyer
9. The above Article emphasis that the free legal service is an unalienable element of reasonable, fair and just procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
10. The Apex court in judgment reported in KHATRI VS STATE OF BIHAR ( A.I.R. 1981 SC 928) while considering the same Article has also further emphasised that the State Government cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability as 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 Apex Court in the said judgment has also quoted RHEM VS MALCOLM ( 377 F Supp 995) wherein the Court said that the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty. The Apex Court also quoted th e words of Justice Blackmum in JACKSON VS BISHOP (404 F Supp 2d 571) that "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations".
11. Infact, the Apex Court has also held in the above judgment that the Magistrate or the Sessions Judge before whom the accused appears, is 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. As the directive principles of the State policy enshrined under Article 39(A) cannot be enforced by a writ of mandamus, the accused must apply to the Court before whom he is tried under Section 304 of Code of Criminal Procedure for assignment of a pleader for his defence at the expense of the State The said Section c ontemplates that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. Of course, Section 30 4 relates to trial before the Court of Session and it does not relate to the trial in other Courts, particularly a Magistrate Court as in the case on hand, but it cannot be said that when the right of an accused person is guaranteed to engage a lawyer of his choice for his defence, of course, on an application by him, by virtue of the obligation of the state enshrined under Article 39(A), the State is obligated to provide legal assistance even in case of a trial before Magistrate or other Courts where an accused after trial may be convicted and sentenced to undergo imprisonment or to pay fine. Considering the right enshrined under Article 22(1) coupled with the directive principles of the State Policy enshrined under Article 39(A) of the constitution, the right of accused to engage a lawyer of his choice at the expenses of the State before the Magistrate Court could be traced under Section 303 of Code of Criminal Procedure. The said Section contemplates that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice.
12. The State has taken steps for providing free legal aid to accused person and has formulated certain procedure to identify and empanell advocates for each Court so as to enable the accused to engage an advocate, if he faces trial in that Court. The learned Public Prosecutor would submit that the counsel Mr.C. Vijayakumar whose services are opted by the petitioner to defend his case, is not one of the advocates empanelled in that Court and therefore, the accused cannot insist for his services to defend him. In my opinion, the said submission shall fall to the ground in view of the constitutional mandate for providing free legal services under Article 39(A) of the Constitution whereby the State has an obligation to render free legal service to the accused person who could not afford to defend his case. The said directive principles should be read in consonance with Article 2 2(1) of the Constitution where the accused has got a right to defend his case through a legal practitioner of his choice. If the procedure adopted by the State is to be accepted, the accused who faces the trial in a particular court, will be deprived of his right to engage a lawyer of his choice and such procedure would not be "reasonable, fair and just". It must be kept in min d that when the State has an obligation to provide legal assistance to accused person, who faces trial before Sessions Court, the same benefit must be extended to the accused person to engage a lawyer of his choice before the Magistrate Court also under Section 303 of Code of Criminal Procedure.
13. The petitioner who is facing trial before the learned Magistrate, though has filed a petition under Section 304 of Code of Criminal Procedure, would be entitled to engage a lawyer of his choice to defend his case,as such application could be considered an application filed under Section 303 of Code of Criminal Procedure and the petitioner must be permitted to engage a lawyer of his choice viz., Mr.C. Vijayakumar to defend his case. It must also be noted that the said Advocate viz., Mr.C.Vijayakumar, is also one of the Advocates who is empanelled by the State for providing legal assistance.
14. For the reasons stated above, this Writ Petition is allowed. The Petitioner would be entitled to engage the services of Mr.C. Vijayakumar, Advocate having his office at 134, Thambu Chetty Street, Chennai-1 to defend him in the trial and he will be paid the fees applicable to the counsel nominated by the State Legal Services Authority, High Court Compound, Chennai-104. No costs . Consequently, W.P.M.P.No.2927 9/2005 is closed.
Index: yes Website: Yes vbs To
1. The Inspector of Police Airport Police Station Meenambakkam, Chennai.
2.The Administrative Officer Tamil Nadu State Legal Services Authority North Fort Road, Chennai-104
3.The Judicial Magistrate Alandur, Chennai.