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PETITIONER: HUSSAINARA KHANTOON & ORS.

       Vs.

RESPONDENT: HOME SECRETARY, STATE OF BIHAR, PATNA

DATE OF JUDGMENT19/04/1979

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1979 AIR 1377            1979 SCR  (3) 760  1980 SCC  (1) 108  CITATOR INFO :  RF         1986 SC2130  (26,37)

ACT:      Legal Aid  to Poor-Administration  of Criminal Justice- Constitutional obligation  of  State  Government-Free  legal services-Absence of-Vitiation  of trial-Art. 21 Constitution of India.      Criminal Procedure  Code,  1973-S.  167(2)(a)-Right  of under-trial prisoner-Release  on bail-Entitlement to counsel an State expense.

HEADNOTE:      On further  hearing the  petition for release of under- trials in the State of Bihar. ^      HELD : 1. The State Governments do not seem to be alive to their  constitutional responsibility  in  the  matter  of provision  of   free  legal   services  in   the  field   of administration of  criminal justice.  If law  is not only to speak justice  but also  deliver justice,  legal aid  is  an absolute imperative.  Legal aid  is really  nothing also but equal justice in action It is in fact the delivery system of social justice. [765D]      2. Every  State Government  will have  to carry out its constitutional obligation  to provide free legal services to every accused  person who  is in peril of losing his liberty and who  is unable  to defend  himself through  a lawyer  by reason of  his poverty or indigence in cases where the needs of justice  so require.  If  free  legal  services  are  not provided to  such an  accused, the  trial itself may run the risk of  being vitiated  as contravening  Art. 21  and every State  Government  should  try  to  avoid  such  a  possible eventuality. [765F-G]      3. When  an under-trial  prisoner is  produced before a Magistrate and  he has  been in  detention for 90 days or 60 days as  the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the under-trial  prisoner that he is entitled to be released on bail. [762H, 763A]      4. The  Magistrate must take care to see that the right of the  under-trial prisoner  to the  assistance of a lawyer

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provided at  State cost  is secured  to him  with a  view to enable him  to apply for bail in exercise of his right under proviso (a)  to sub-section (2) of s. 167 Criminal Procedure Code. [763B]      5. The  Magistrate must  deal with  the application for bail in  accordance with  the guidelines  laid down  in  the Court’s order dated February 12, 1979. [763C]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.      Mrs. K. Hingorani for the Petitioner      U. P. Singh and S. N. Jha for the Respondent.      The Order of the Court was delivered by      BHAGWATI, J.  This writ  petition  has  again  come  up before us  for further  directions. Mr.  U.P. Singh, learned Advocate on  behalf of  the State of Bihar, has intimated to us that  pursuant to the directions given by us in our order dated 9th March, 1979(1), the State of Bihar 761 has already  released 70  undertrial prisoners  whose  names were set  out in  the chart  filed by  Mrs. Hingorani on 9th March, 1979.  It is highly regrettable that these undertrial prisoners should  have remained  in jail  without trial  for periods longer  than the  maximum term  for which they could have been  sentenced if convicted. We fail to see what moral or ethical  justification could  the State  have  to  detain these unfortunate persons for such unreasonably long periods of time  without trial.  We feel a sense of relief that they should once again be able to breathe the air of freedom. But we find  that there are still many more undertrial prisoners who fall  within this  category of  persons who have been in detention for  periods longer  than the maximum term without their trial  having been commenced. Mrs. Hingorani has filed before us at the hearing of the writ petition on 16th April, 1979 a second chart giving the names and particulars of some of these  under trial  prisoners who  have not  yet got  the benefit of  the earlier  order made  by  us.  There  are  59 undertrial prisoners whose names and particulars are set out in this  chart and  we direct  that they  should be released forthwith as  their continued  detention is  clearly illegal and in violation of their fundamental right under Art. 21 of the Constitution.  There are  also several  other undertrial prisoners who  are accused  multiple offences and even if we were to  proceed on  the assumption  that the State would be able to  secure their conviction and maximum sentences would be  imposed   on  them  and  such  sentences  would  not  be concurrent in accordance with the usual practice followed by the courts  but would  be  consecutive,  they  have  already suffered the aggregate imprisonment which could be inflicted on them, and there is no reason why they should be subjected to any  further  detention.  It  may  be  pointed  out  that ordinarily the  sentences imposed on conviction for multiple offences are concurrent and if we proceed on that assumption which is  more realistic,  it would  be found that there are many undertrial  prisoners who have already been in jail for periods exceeding the maximum term which could be imposed on them even  if they  were convicted  of the multiple offences with  which   they  are  charged.  We  have  requested  Mrs. Hingorani to  prepare a  chart showing  separately the above two categories  of undertrial  prisoners so that we can pass appropriate orders  in regard to them at the next hearing of the writ  petition. Mr.  U.P. Singh,  appearing on behalf of the State  Government, will help Mrs. Hingorani in preparing

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this chart  since Mrs.  Hingorani has undertaken this public interest litigation  as a  matter of  public  duty  and  her resources are therefore, bound to be limited.      We are  informed that  amongst the undertrial prisoners there are  some who are lunatics or persons of unsound mind. It is difficult to under- 762 stand how  such persons  could possibly  be kept in the same jail along  with other  undertrial prisoners. We should like to know  from the  State Government,  in an  affidavit to be filed before  the next  hearing of  the writ petition, as to what are  the circumstances in which these persons have been kept as  undertrial prisoners in the ordinary jails and what the State  Government proposes to do in regard to them. Mrs. Hingorani  will   prepare  a  list  showing  the  names  and particulars of  these persons  and Mr. U. P. Singh on behalf of the  State Government  will render  the necessary help in this connection.  The list may be filed by Mrs. Hingorani at the next hearing of the writ petition so that we may be able to  pass   final  orders  in  regard  to  this  category  of undertrial prisoners.      We find  that pursuant to the directions given by us in our order  dated 9th  March, 1979, Bageshwari Prasad Pandey, Superintendent of  the  Patna  Central  Jail  has  filed  an affidavit dated  4th April,  1979 along with a chart showing the dates  on which petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and  17 confined  in the Patna Central Jail prior to their release  on   personal  bond,   were  produced   before  the Magistrates in compliance with the proviso to section 167(2) of the Code of Criminal Procedure. A similar affidavit dated 4th April,  1979  has  also  been  filed  by  Pradeep  Kumar Gangoli, Superintendent  of Muzaffarpur  Jail along  with  a chart showing  the dates  on which  petitioners Nos. 10, 11, 12, 13,  15, 16  and 18  who were previously confined in the Muzaffarpur Central  Jail prior to their release on personal bond, were  produced before  the Magistrates  in  compliance with the  requirement of  the  proviso  to  section  167(2). Bhuvan Mohan  Munda, Superintendent  of the  Ranchi  Central Jail has  also filed  an affidavit  dated 12th  April,  1979 together with a chart showing the dates on which some of the undertrial prisoners  referred to  in our  Order  dated  9th March,  1979   were  produced   before  the  Magistrates  in compliance with  the requirement  of the  proviso to section 167(2). It  is apparent  from these  charts that some of the petitioners and  other undertrial  prisoners referred  to in these charts  have been  produced numerous  times before the Magistrates and the Magistrates have been continually making orders of  remand to  judicial custody.  It is  difficult to believe that  on each  of the  countless occasions  on which these  undertrial   prisoners  were   produced  before   the Magistrates and  the Magistrates made orders of remand, they must have  applied their  mind to the necessity of remanding those undertrial  prisoners to judicial custody. We are also very doubtful  whether on  the expiry of 90 days or 60 days, as the  case may  be, from the date of arrest, the attention of the  undertial prisoners  was drawn to the fact that they were entitled  to be  released on  ball under proviso (a) of sub-section (2)  of section 167. When an undertrial prisoner is produced before a Magistrate and he has been in deten- 763 tion for  90 days  or 60  days, as  the  case  may  be,  the Magistrate must, before making an order of further remand to judicial custody,  point out to the undertrial prisoner that he is  entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial

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prisoner with  a view  to enable  him to  apply for  bail in exercise of  his right  under proviso (a) to sub-section (2) of section 167 and the Magistrate must take care to see that the right  of the undertrial prisoner to the assistance of a lawyer provided  at State cost is secured to him and he must deal with  the application  for bail  in accordance with the guidelines laid down by us in our Order dated 12th February, 1979.(1) We  hope and  trust that  every Magistrate  in  the country and  every State  Government will  act in accordance with this  mandate of  the Court. This is the constitutional obligation of the State Government and the Magistrate and we have no  doubt that  if this  is strictly carried out, there will be  considerable improvement in the situation in regard to undertrial  prisoners and there will be proper observance of the rule of law.      The State  Government has also filed an affidavit of B. Srinivasan, Superintendent of Police (C.I.D.), Government of Bihar, giving  in Annexure  (I) particulars regarding number of cases  pending investigation  by the  police in each sub- division of  the State  as on  31st December,  1978  and  in Annexure (II), particulars regarding number of cases pending investigation for more than six months. These annexures show that a  total number  of  10,339  cases  relating  to  major offences and  17,687 cases  relating to  minor offences were pending  investigation   in  the  State  of  Bihar  on  31st December, 1978  and out  of these,  5835 cases  relating  to major offences  and 7228  cases relating  to minor  offences were pending  investigation for  a period  of more  than six months. It  is a  matter of  great regret  that such a large number of cases should be pending investigation for a period of more  than six  months and  the number  of such  cases in relation to minor offences should be over seven thousand. It is difficult to understand why as many as seven thousand and odd cases  relating to  minor offences should remain pending investigation for  more than six months. It is no doubt true that  reasons   have  been  attempted  to  be  given  by  B. Srinivasan in  a statement  annexed to his affidavit, but we are not  at  all  satisfied  about  the  validity  of  these reasons, particularly in so far as investigation in relation to minor  offences is concerned. One of the reasons given by B. Srinivasan in his statement is that in 10 per cent of the cases investigation  is held  up because of delay in receipt of opinions from experts. We find it difficult to appreciate this reason.  We fail to see why the State Government cannot employ more experts or set up a larger num- 764 ber of  testing  laboratories  or  establish  more  forensic laboratories. It  is also  necessary to  have more  than one serologists in  the State.  This is  a situation  which  the State Government  can  certainly  remedy  by  taking  prompt action. There  are also  many other  measures which  can  be taken  by   the  State   Government  for   the  purpose   of accelerating the  pace of the investigating machinery but it would not  be proper  for this Court to suggest or recommend any such  measures because  this Court has not the requisite expertise of material for doing so and moreover the National Police Commission  appointed by  the Government  of India is seized of this question and it is considering what steps and measures should  be taken  for the purpose of expediting the investigative process  and making qualitative improvement in it. But we would be failing in our duty if we do not express our sense  of amazement  and horror  at  the  leisurely  and almost lethargic manner in which investigation into offences seems to  be carried  on in  the State  of Bihar. It is high time that  the State  of Bihar  took steps  to overhaul  and

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streamline  its   investigative   machinery   so   that   no investigation may  take more  than  the  bare  minimum  time required for  it and  the judicial  process may  be  set  in motion without any unnecessary delay.      We directed  by our Order dated 9th March, 1979 that on the next  date when  the undertrial  prisoners, charged with bailable offences,  are produced before the Magistrates, the State Government  should provide  them with  a lawyer at its own cost  for the purpose of making application for bail and if any  application for bail is made, the Magistrates should dispose of  the same in accordance with the broad guidelines set out  by us in our Judgment dated 12th February, 1979. We are told  by Mr. U. P. Singh that the necessary instructions to this  effect have  been issued by the State Government to the District  Magistrate, but  we do not know whether and to what extent  these instructions  have been  carried out  and lawyers  at   State  expense   have  been  provided  to  the undertrial prisoners  accused of  bailable offences  for the purpose of  making application  for bail on their behalf. We should like  the  State  Government  to  file  an  affidavit stating how many undertrial accused of bailable offences who have been  in jail for a period of more than 18 months as on 1st February,  1979 have  been  provided  lawyers  at  State expenses and  whether or not they have been released on bail in accordance  with the  directions given  by us.  The State Government  will  also  file  an  affidavit  giving  similar information in regard to those undertrial prisoners who have been in  jail for  periods longer than half the maximum term of imprisonment  for which  they  could,  if  convicted,  be sentenced, because  we had  given direction of a like nature also in regard to these undertrial prisoners in our judgment dated 9th March, 1979. 765      We may point out that according to the law as laid down by us  in our  judgment dated  9th March,  1979, it  is  the 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, to  have free  legal services  provided to him by the State and the State is under a constitutional mandate to provide a  lawyer to  such accused  person if  the needs  of justice so  require.  We  do  not  know  whether  the  State Government has  set up  any machinery  for  the  purpose  of providing free  legal services to persons who are accused of offences involving  possible deprivation  of liberty and who are unable  to engage  a lawyer  on account  of  poverty  or indigence. This  constitutional obligation  cannot wait  any longer for  its fulfilment,  since more  than 30  years have passed from the date of enactment of the Constitution and no State  Government  can  possibly  have  any  alibi  for  not carrying out  this  command  of  the  Constitution.  We  are repeating  this   observation  once  again  in  the  present judgment because  we find  that barring  a few,  many of the State  Government   do  not   seem  to  be  alive  to  their constitutional responsibility  in the matter of provision of free legal  services in  the  field  of  ’administration  of criminal justice’.  Let it  not be  forgotten that if law is not only  to speak  justice but  also deliver justice, legal aid is  an absolute  imperative. Legal aid is really nothing else but  equal justice  in action. Legal aid is in fact the delivery system  of social  justice. It is intended to reach justice to the common man who, as the poet song:           "Bowed by the weight of centuries he leans           Upon his hoe and gazes on the ground,           The emptiness of ages on his face,

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         And on his back the burden of the World."      We hope and trust that every State Government will take prompt steps  to carry  out its constitutional obligation to provide free  legal services  to every accused person who is in peril  of losing  his liberty and who is unable to defend himself through  a  lawyer  by  reason  of  his  poverty  or indigence in cases where the needs of justice so require. If free legal  services are not provided to such an accused the trial  itself   may  run  the  risk  of  being  vitiated  as contravening Article  21 and  we have  no doubt  that  every State  Government   would  try  to  avoid  such  a  possible eventuality.      We have  no report  from the  State  Government  as  to whether women  under "protective custody" in jails have been transferred to  remand or  welfare homes  conducted  by  the social welfare  department as  directed by  us by  our Order dated 26th  February, 1979.  Mr. U.P. Singh on behalf of the State of Bihar stated before us that this direc- 766 tion has  been carried  out by  the State Government, but we should like to have an affidavit of some responsible officer of the State Government stating that women who were confined in jail  under the  label of  "protective custody" have been transferred to welfare homes and that necessary instructions have been  issued by the State Government to the effect that women or  children who  are  victims  of  offence  or  whose presence is  required for giving evidence should not be kept in jail under so called "protective custody". This affidavit may be  filed by  the State  Government within ten days from today.      We  had   given  direction  by  our  Order  dated  26th February, 1979 that the State Government should enquire into cases where the offence charged against undertrial prisoners are  triable   as  summons   cases,  for   the  purpose   of ascertaining whether  there has  been  compliance  with  the provision enacted  in section  167, sub-section  (5) of  the Code of  Criminal Procedure. It is clear from this provision that if  in any case tried by a Magistrate as a summons case the investigation  is not  concluded within  a period of six months from  the date on which the accused was arrested, the Magistrate must make an order stopping further investigation into  the   offence,   unless   the   officer   making   the investigation satisfies  the  Magistrate  that  for  special reasons and  in the interest of justice, the continuation of the  investigation  beyond  the  period  of  six  months  is necessary. With  a view  to securing  compliance  with  this provision we  directed that  if, in  a  case  triable  by  a Magistrate as a summons case, it is found that investigation has been  going on  for a  period of  more than  six  months without satisfying  the Magistrate that, for special reasons and in  the interest  of justice,  the continuation  of  the investigation beyond  the period of six months is necessary, the State  Government will  release the undertrial prisoner, unless the  necessary orders  of the Magistrate are obtained within a  period of  one month.  The reason  for giving this direction was that in such a case the Magistrate is bound to make an  order stopping  further investigation  and in  that event, only  two courses  would be  open: either  the police must immediately  proceed to  file  a  chargesheet,  if  the investigation conducted till then warrants such a course, or if no case for proceeding against the undertrial prisoner is disclosed by the investigation, the undertrial prisoner must be released  forthwith from  detention. The State Government has not  filed before  us any report of compliance with this direction  and   we  would,  therefore,  require  the  State

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Government to  do so within a period of ten days from today. We would  also request  the High Court to draw the attention of the  Magistrates to  the provision  in section  167, sub- section (5)  and ensure  compliance with  the requirement of this provision by the Magistrate. 767      We find  that pursuant  to the direction given by us in our Order dated 9th March, 1979, the High Court of Patna has forwarded to  us a compilation containing particulars giving the location of courts of Magistrates and courts of Sessions in the  State of  Bihar together  with the  total number  of cases pending  in each  of these courts as on 31st December, 1978 with  yearwise break  up  of  such  pending  cases  and briefly explaining  the reasons why it has not been possible to dispose  of these  cases within  a reasonable  period  of time. The  figures of pending cases given in the compilation are staggering  and it  is distressing  to find that quite a few of  these cases  have been  pending for  more than  five years, sometimes  extending even  to seven  or nine  or  ten years. We  shall  examine  the  position  arising  from  the pendency of  such a  large number  of cases  for  such  long periods of  time at  the next  hearing of the writ petition, with a  view to considering what directions are necessary to be given  to the  State Government by way of taking positive action for  the  purpose  of  securing  enforcement  of  the fundamental right  of the accused to speedy trial. We would, however, require  for this purpose information from the High Court of  Patna as  to the  norms of  disposals fixed by the High Court  for the  different categories of Magistrates and Sessions Judges  in the  State of  Bihar, since without this information, it  would not  be possible  for  us  to  decide whether the  existing strength  of courts  and judges in the State of  Bihar is  adequate for  the  purpose  of  ensuring speedy trial  to the  accused or  it is  necessary  to  have additional courts  and judges.  We would  request  the  High Court to  furnish this  additional information  to us at the next hearing of the writ petition.      We will  proceed with  the further  hearing of the writ petition on 24th April, 1979. N.V.K. 768