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PETITIONER: KHATRI AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT19/12/1980

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

CITATION:  1981 SCR  (2) 408        1981 SCC  (1) 627

ACT:      Right to  free legal services to a person accused of an offence-Duty of  the State  explained Constitution of India, Articles 21 and 22.

HEADNOTE:      Expressing displeasure  over disregard  of the decision of the Supreme Court by the State of Bihar, the Court ^      HELD: (1)  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  is 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. The State should 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.  It cannot avoid its constitutional obligation to provide free  legal services  to a  poor accused by pleading financial or administrative liability. [412C-D, F-G]      Hussainara Khatoon  v State  of Bihar  [1979] 3  S.C.R. 532, reiterated.      Rhem v.  Malcolm, 377  F. Supp.  995; Jackson v. Bishop 404 F. Supp. 2d, 571, quoted with approval.      (2) The  State is  under a constitutional obligation to provide free  legal  services not only at the stage of trial but also  at the  stage when  the accused  is first produced before the  magistrate as also when he is remanded from time to time. [413C-D]      (3) 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 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

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obtain free  legal services at the cost of the State. Unless he is  not willing  to take  advantage, every other State in the country  should 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 incommunicado 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 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. [413D, E-F, H, 414A-B] 409      (4) The  State and its police authorities should see to it that the constitutional, and legal requirement to produce an arrested  person before  a judicial  magistrate within 24 hours of the arrest is scrupulously observed. [414C-D]      (5) The  provision inhibiting  detention without remand is a very healthy provision which enables the magistrates to keep check over the police investigation and it is necessary that the  magistrates should try to enforce this requirement and where it is found to be disobeyed come down heavily upon the police.[414F-G]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 5670 of 1980.            (Under Article 32 of the Constitution)      Mrs.  K.  Hingorani  and  Miss  Rekha  Tiwari  for  the Petitioner.      K. G. Bhagat and D. Goburdhan for the Respondent.      The Order of the Court was delivered by      BHAGWATI, J.-  This case  has now  come before us after service of  notice on the State of Bihar. When this case was taken up  for hearing  by  us  on  2nd  December,  1980,  we expressed our  displeasure that  the State  of Bihar had not chosen  to   appear  in  answer  to  the  notice,  but  this expression of  displeasure was  made by us on the assumption that the  notice was  served on  the State  of Bihar. We are however informed  by Mr.  K. G.  Bhagat,  learned  advocate, appearing on behalf of the State of Bihar that the notice of the writ  petition was  served upon  the State  only on  6th December, 1980  and that  is  the  reason  why  it  was  not possible for  the State to appear before us on 2nd December, 1980. We accept this explanation offered by Mr. K. G. Bhagat and  exonerate   the  State  of  Bihar  from  remissness  in appearing before the Court on 2nd December, 1980.      The State has filed before us a counter affidavit sworn by  Tarkeshwar   Parshad,  Under  Secretary,  Home  (Police) Department  of   the   State   Government   giving   various particulars required  by us by our order dated 2nd December, 1980. We  have also before us the counter affidavit filed by Jitendra Narain  Singh, Assistant  Jailer, Bhagalpur Central Jail, on  behalf of  the  State  and  this  affidavit  gives certain other particulars required by us. The State has also in addition  to these  particulars, filed  statements giving various particulars in regard to the blinded prisoners drawn from the  records of  the judicial  magistrates dealing with their cases.  The  District  and  Sessions  Judge  has  also addressed a letter to the Registrar (Judicial) of this Court stating that  for  the  reasons  given  in  his  letter,  no

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inspection of  the Bhagalpur  Central Jail  has been carried out by the District and Sessions Judge in the year 1980. The Registrar (Judicial)  has also furnished to us copies of the statements of the blinded prisoners 410 and B.  L.  Das,  former  Superintendent  of  the  Bhagalpur Central Jail,  recorded by him pursuant to the order of this Court dated  1st December, 1980. Full and detailed arguments have been advanced before us on the basis of the particulars contained in  these documents, but we do not, at this stage, propose to  deal with the arguments in regard to each of the blinded prisoners  and  we  shall  examine  only  the  broad contentions advanced  before us,  leaving the  arguments  in regard to each specific blinded prisoner to be dealt with at a later  stage when  the writ  petition again  comes up  for hearing.      Before we  deal with  the main contentions urged before us on  behalf of the parties, we must dispose of one serious question which  raises a  rather difficult problem and which has to  be resolved  with some immediacy. The problem is not so much a legal problem as a human one and it arises because the blinded  prisoners who  are under-going treatment in the Rajendra Prashad  Ophthalmic Institute, New Delhi are likely to be  discharged from  that Institute since their vision is so totally impaired that it is not possible to restore it by any medical  or surgical  treatment,  and  the  question  is wherever they  can go.  Mrs. Hingorani,  on  behalf  of  the blinded prisoners,  expressed the  apprehension that  it may not be  safe for  them to go back to Bhagalpur, particularly when investigation  into the  offences of blinding was still in progress  and some arrangement should, therefore, be made for housing  them in  New Delhi at the cost of the State. We cannot definitely  state that  the apprehension expressed by Mrs. Hingorani  is totally  unfounded nor  can we say at the present stage  that it  is justified,  but we  feel that  at least until  the next date of hearing, it would be desirable not to  send the  blinded prisoners  back to  Bhagalpur.  We would, therefore, suggest that the blinded prisoners who are discharged from  the Rajendra  Parshad Ophthalmic Institute, New Delhi  should be  kept in the Home which is being run by the Blind  Relief Association  of Delhi  on the  Lal Bahadur Shastri Marg,  New Delhi  and the State of Bihar should bear the cost of their boarding and lodging in that Home. We hope and trust and, in fact, we would strongly recommend that the Blind Relief  Association of Delhi will accept these blinded prisoners in  the Home run by them and look after them until the next  hearing of  the petition.  The State of Bihar will pay by  way of  advance or  otherwise as may be required the costs, charges  and  expenses  of  maintaining  the  blinded prisoners in such Home      The other  question raised  by Mrs. Hingorani on behalf of the blinded prisoners was whether the State was liable to pay compensation  to the  blinded prisoners for violation of their Fundamental Right 411 under Article 21 of the Constitution. She contended that the blinded prisoners  were deprived  of their  eye sight by the Police Officers who were Government servant acting on behalf of the  State and  since this constituted a violation of the constitutional right  under Article 21, the State was liable to pay  compensation to the blinded prisoners. The liability to compensate  a person  deprived of  his life  or  personal liberty  otherwise   than  in   accordance  with   procedure established  by   law  was,  according  to  Mrs.  Hingorani, implicit in  Article 21.  Mr. K.  G. Bhagat on behalf of the

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State, however,  contended that  it was  not yet established that the  blinding of  the prisoners  was done by the Police and that  the investigation  was in  progress and he further urged that even if blinding was done by the police and there was violation  of  the  constitutional  right  enshrined  in Article 21,  the State  could not  be  held  liable  to  pay compensation to  the persons  wronged. These rival arguments raised a  question of  great constitutional importance as to what  relief   can  a   court  give  for  violation  of  the constitutional right guaranteed in Article 21. The court can certainly injunct  the State  from depriving a person of his life or personal liberty except in accordance with procedure established by  law, but  if life  or  personal  liberty  is violated otherwise  than in  accordance with such procedure, is the  court helpless to grant relief to the person who has suffered such  deprivation ?  Why should  the court  not  be prepared to  forge new tools and devise new remedies for the purpose of  vindicating the  most precious  of the  precious Fundamental Right  to life  and personal liberty. These were the issues  raised before  us  on  the  contention  of  Mrs. Hingorani, and  to our  mind, they are issues of the gravest constitutional  importance   involving  as   they  do,   the exploration of  a new  dimension of  the right  to life  and personal liberty.  We, therefore,  intimated to  the counsel appearing on  behalf of  the  parties  that  we  would  hear detailed arguments  on these  issues at  the next hearing of the writ  petition and  proceed  to  lay  down  the  correct implications of  the constitutional  right in  Article 21 in the light  of the dynamic constitutional jurisprudence which we are evolving in this Court.      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 412 for it  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 Khatonn’s case. This Court has pointed out  in Hussainara  Khatoon’s case (supra) which was decided as  far back  as 9th  March, 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

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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  Article  141  that  the  law declared by  this Court  shall be  binding  through-out  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 difficulty 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 indigenous and whatever is necessary  for his  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 413 any Government  to deprive  its citizens  of  constitutional rights on  a plea  of poverty"  and to  quote the  words  of Justice Blackmum  in Jackson  vs. Bishop,  404 F.  Supp. 2d, 571: "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 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.      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 lack of legal awareness that  it has  always been recognised as one of the principal items  of the  programme of the legal aid movement in 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

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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 Session 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 every 414 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 incommunicado 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 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.      There are  two other  irregularities appearing from the record to  which we  think it  is necessary to refer. In the first place in a few cases the accused persons do not appear to have been produced before the Judicial Magistrates within 24 hours  of their  arrest as  required by  Art. 22  of  the Constitution. We do not wish to express any definite opinion in regard  to this irregularity which prima facie appears to have occurred  in a  few cases,  but we  would strongly urge upon the  State and  its police authorities to see that this constitutional and  legal requirement to produce an arrested person before  a Judicial  Magistrate within 24 hours of the arrest must  be scrupulously observed. It is also clear from the particulars  furnished to  us from  the   records of the Judicial Magistrates  that in  some cases particularly those relating to  Patel Sahu,  Raman Bind,  Shaligram Singh and a few others  the accused persons were not produced before the Judicial Magistrates  subsequent to  their first  production and they  continued to  remain in  jail without  any  remand orders being  passed by  the Judicial  Magistrates. This was plainly contrary  to law.  It is difficult to understand how the State  continued to detain these accused persons in jail without any remand orders. We hope and trust that the State, Government will  inquire as  to why  this  irregularity  was allowed to  be perpetrated and will see to it that in future no such  violations of the law are permitted to be committed by the  administrators of  the law. The provision inhibiting detention without  remand is  a very healthy provision which enables the  Magistrates  to  keep  check  over  the  police investigation and  it  is  necessary  that  the  Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police.      We also  cannot help  expressing our unhappiness at the lack of  concern shown  by the  judicial magistrates  in not enquiring from  the blinded  prisoners, when they were first produced before the judicial magistrates and thereafter from time to time for the purpose of remand, 415

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as to how they had received injuries in the eyes. It is true that most  of the  blinded  prisoners  have  said  in  their statements before  the Registrar that they were not actually produced before the judicial magistrates at any time, but we cannot, without  further inquiry  in that behalf, accept the ex  parte   statement  of   the  blinded   prisoners.  Their statements may  be true  or may  not be true; it is a matter which may require investigation. But one thing is clear that in the  case  of  almost  all  the  blinded  prisoners,  the forwarding report  sent by  the  Police  Officer  In  Charge stated that  the accused  had sustained injuries and yet the judicial magistrates  did not  care to  enquire  as  to  how injuries had  been caused.  This can  give rise  only to two inferences; either the blinded prisoners were not physically produced before  the judicial  magistrates and  the judicial magistrates mechanically signed the orders of remand or they did not  bother to  enquire even  if  they  found  that  the prisoners before  them had received injuries in the eyes. It is also  regrettable that no inspection of the Central Jail, Bhagalpur was  carried out  by the District & Sessions Judge at any  time during the year 1980. We would request the High Court to  look into  these matters  closely and  ensure that such remissness  on the  part of  the judicial officers does not occur in the future.      We would  also like to advert to one more matter before we close  and that  is rather  a serious  matter. It appears from the  record that  one blinded  prisoner by  the name of Umesh Yadav  sent a  petition to  the District  and Sessions Judge, Bhagalpur, on 30th July, 1980 complaining that he had been blinded  by Shri  B. K. Sharma, District Superintendent of Police and since he had no money to prosecute this police officer, he  should  be  provided  a  lawyer  at  Government expense so  that he  might  be  able  to  bring  the  police atrocities before  the court  and seek  justice.  Ten  other blinded prisoners also made a similar petition and all these petitions were forwarded to the District & Sessions Judge on 30th July, 1980. The District & Sessions Judge by his letter dated 5th  August, 1980,  addressed to the Superintendent of the  Bhagalpur   Central  Jail  stated  that  there  was  no provision in  the Code  of Criminal  Procedure  under  which legal assistance  could be provided to the blinded prisoners who had  made a  petition to  him and  that he had forwarded their  petitions   to  the  chief  judicial  magistrate  for necessary  action.   The  Chief   Judicial  Magistrate  also expressed his  inability to  do anything  in the  matter. It appears that  the Superintendent  of the  Bhagalpur  Central Jail also  sent the  petitions of these blinded prisoners to the Inspector  General of  Prisons, Patna on 30th July, 1980 with a  request that  this matter  should be  brought to the notice of  the State  Government. The  Inspector General  of Prisons, forwarded  these petitions  to the Home Department. The Inspector 416 General of  Prisons  was  also  informed  by  three  blinded prisoners on  9th September  1980 when  he visited the Banka Jail that  they had  been blinded  by  the  police  and  the Inspector General of Prisons observed in his inspection note that it  would be  necessary to  place the matter before the Government so that the police atrocities may be stopped. The facts disclose  a very  disturbing state  of affairs. In the first place we find it difficult to appreciate why the Chief Judicial Magistrate  to whom  the petitions of these blinded prisoners had  been. forwarded  by the  District &  Sessions Judge did  not act  upon the  complaint contained  in  these petitions and either take cognizance of the offence revealed

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in these  petitions or  order investigation  by  the  higher police  officers.   The  information   appearing  in   these petitions disclosed  very serious  offences alleged  to have been  committed   by  the  Police  and  the  Chief  Judicial Magistrate  should   not  have  nonchalantly  ignored  these petitions and  expressed his inability to do anything in the matter. But  apart from  that, one  thing  is  certain  that within a few days after 30th July 80 the Home Department did come to  know from  the Inspector  General of  Prisons  that according to  the  blinded  prisoners  who  had  sent  their petitions, they had been blinded by the Police, and from the inspection note  of the Inspector General of Police it would seem reasonable  to assume  that he  must have  brought  the matter to  the notice  of the  Government. We should like to know from the Inspector General of Prisons as to who was the individual  or   which  was  the  department  of  the  State Government to  whose notice  he brought this matter and what steps did  the State  Government  take  on  receipt  of  the petitions  of   the  blinded   prisoners  forwarded  by  the Inspector General  of Prisons  as also  on the  matter being brought to  their attention  by  the  Inspector  General  of Prisons as observed by him in his inspection note. We should like the State Government to inform us clearly and precisely as to  what steps  they took  after 30th July, 1980 to bring the  guilty   to  book   and  to  stop  recurrence  of  such atrocities. We  want to  have this  information  because  we should like to satisfy ourselves whether the blindings which took place  in October 1980 could have been prevented by the State Government  by taking  appropriate steps on receipt of information in  regard  to  the  complaint  of  the  blinded prisoners from the Inspector General of Prisons.      We would direct the State Government to furnish us full and detailed  particulars in  this behalf  before  the  next hearing of the writ petition.      The writ  petition will  now be  taken up  for  further hearing on 6th January, 1981. S.R.                                     Petition adjourned. 417