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PETITIONER: SUK DAS & ANR.

       Vs.

RESPONDENT: UNION TERRITORY OF ARUNACHAL PRADESH

DATE OF JUDGMENT10/03/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MADON, D.P. OZA, G.L. (J)

CITATION:  1986 AIR  991            1986 SCR  (1) 590  1986 SCC  (2) 401        1986 SCALE  (1)368  CITATOR INFO :  D          1988 SC1531  (183)

ACT:      Constitution of  India, Art.21  - Accused on account of poverty unable  to afford  legal representation  -  Duty  of court to  inform him  that he  can have  a lawyer  at  State expense Effect  of not providing legal representation to the accused at State cost - Whether vitiates trial.

HEADNOTE:      The appellant  and five  other accused  were charged in the Court  of Addl. Deputy Commissioner for an offence under section 506 read with section 34 of the Indian Penal Code on the allegation that they threatened an Assistant Engineer of the  Central   Public  Works   Department  with  a  view  to compelling him  to cancel the transfer orders of the accused which  had  been  passed  by  him.  The  appellant  was  not represented by  any lawyer since he was admittedly unable to afford legal  representation on  account of  his poverty and the result  was that  he could not cross-examine some of the witnesses of  the prosecution. At the end of the trial, four of the  accused were acquitted but the appellant and another accused were  convicted of  the aforesaid offence and he was sentenced to undergo simple imprisonment for a period of two years.      The appellant  thereupon preferred an appeal before the High Court  contending that  he was  not provided free legal aid for  his defence and the trial was, therefore, vitiated. The High Court upheld the conviction of the appellant on the ground that  no application  for legal  aid was  made by him before the Addl. Deputy Commissioner and therefore, it could not  be  said  that  failure  to  provide  legal  assistance vitiated the trial.      Allowing the appeal, ^      HELD : (1) The conviction and sentence recorded against the appellant is set aside and the order dismissing the 591 appellant from service passed on the basis of his conviction by the  learned Additional  Deputy Commissioer  must also be quashed. [597 C]

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    (2)(i) It  is settled law that free legal assistance at State cost  is a fundamental right of a person accused of an offence which  may involve  jeopardy to his life of personal liberty and  this  fundamental  right  is  implicit  in  the requirement  of   reasonable,  fair   and   just   procedure prescribed by  Article 21.  Of course, it must be recognised that 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 service  may not  be provided by the State. [594 G-H]      Hussainara khatoon’s  case, [1979]  3 S.C.R. 532 & M.H. Hoskot V. State of Maharashtra [1978] 3 S.C.C. 544 followed      (2)(ii)  The   right  to   free  legal   service  is  a constitutional right  of every  accused person who is unable to engage  a lawyer  and secure  legal service on account of reasons,  such   as,  poverty,  indigence  or  incummunicado 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  the  justice  so  require,  provided,  of course, the  accused person does not object to the provision of such  lawyer. 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. [594 D-F; 595 G]      Khatri & Ors. v. State of Bihar & ors., [1981] 2 S.C.R. 408 referred to.      In the instant case, the Additional Deputy Commissioner did not  inform the  appellant that  he was entitled to free legal assistance  nor did  he  enquire  from  the  appellant whether he  wanted a  lawyer to  be provided to him at State cost.  The   result  was   that   the   appellant   remained unrepresented by  a lawyer and the trial ultimately resulted in his  conviction. This  was clearly  a  violation  of  the fundamental right  of the appellant under Article 21 and the trial must  accordingly be held to be vitiated on account of a fatal constitutional 592 infirmity, and  the conviction and sentence recorded against the appellant must be set aside. [596 H; 597 A-B]      [In the  facts and circumstances of the case, the Court directed that  the appellant shall be reinstated in service, but he  shall not be entitled to claim any back wages and no fresh trial shall be held against him.] [597 F-G]

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION  :  Criminal  Appeal No.725 of 1985.      From the Judgment and Order dated 9.8.84 of the Gauhati High Court in Crl. Revision No. 205 of 1979.      Vijay Hansaria and S.K. Jain for the Appellant.      Abdul Khader,  G. Chandra and Ms. A. Subhashini for the Respondent.      The Judgment of the Court was delivered by      BHAGWATI, C.J.  This appeal  by special  leave raises a question  of   considerable  importance   relating  to   the administration of  criminal  justice  in  the  country.  The question is whether an accused who on account of his poverty is unable  to afford  legal representation  for himself in a trial involving  possibility of imprisonment imperilling his personal liberty,  is entitled  to free  legal aid  at State cost and  whether  it  is  obligatory  on  him  to  make  an

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application for  free legal  assistance or the Magistrate or the Sessions Judge trying him is bound to inform him that he is entitled  to free  legal aid and inquire from him whether he wishes to have a lawyer provided to him at State cost: if he is  not so  informed and in consequence he does not apply for free  legal  assistance  and  as  a  result  he  is  not represented by  any lawyer in the trial and is convicted, is the conviction  vitiated and  liable to  be set  aside? This question is  extremely important  because we have almost 50% population which is living below the poverty line and around 70% is  illiterate and  lange sections of people just do not know that  if they are unable to afford legal representation in a  criminal  trial,  they  are  entitled  to  free  legal assistance provided to them at State cost. 593      The facts  giving rise  to this appeal are not material because the  question posed  for our consideration is a pure question of  law. But even so the broad facts may be briefly set out  since they  provide the back-drop against which the question of law arises for consideration.      The appellants  and five  other accused were charged in the court  of the  Additional  Deputy  Commissioner,  Dibang Valley,  Anini,  Arunachal  Pradesh  for  an  offence  under section 506 read with Section 34 of the Indian Penal Code on the allegation  that  the  appellants  and  the  other  five accused threatened  Shri  H.S.  Kohli,  Assistant  Engineer, Central Public  Works  Department,  Anini  with  a  view  to compelling him  to cancel the transfer orders of the accused which had  been passed  by him.  The case  was  tried  as  a warrant case  and at  the trial  8 witness, on behalf of the prosecution,  were   examined.   The   appellant   was   not represented by  any lawyer since he was admittedly unable to afford legal  representation on  account of  his poverty and the result was that he could not cross-examine the witnesses of the  prosecution. The  appellants  wished  to  examine  7 witnesses in  defence but  out of  them  two  could  not  be examined since  they were  staying far away and moreover, in the opinion  of the court, they were not material witnesses. The remaining  5 witnesses  were examined  by the appellants without any legal assistance. The result was that at the end of the  trial four  of the  other accused were acquitted but the appellant  and another  accused were  convicted  of  the offence under  Section 506 of the Indian Penal Code and they were sentenced  to undergo  simple imprisonment for a period of two years.      The appellant  thereupon preferred an appeal before the Gauhati High  Court. There were several contentions urged in support of  the appeal  but it  is not necessary to refer to them, since  there is  one contention  which in  our opinion goes to  the root  of the matter and has invalidating effect on  the   conviction  and   sentence  recorded  against  the appellant. That  contention is  that the  appellant were not provided free  legal aid  for his  defence and the trial was therefore  vitiated.  This  self-same  contention  was  also advanced before  the High  Court in  the appeal preferred by the appellant  but the High Court took the view that, though it was undoubtedly the right of the appellant to be provided free legal assistance, the appellant did no make any request to the learned Additional Deputy 594 Commissioner praying  for legal aid and since no application for legal  aid was made by him, "it could not be said in the facts and  circumstances of the case that failure to provide legal assistance  vitiated the trial". The High Court in the circumstances confirmed  the conviction of the appellant but

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in view of the fact that he was already in jail for a period of nearly  8 months,  the High  Court held  that the ends of justice would  be met  if the  sentence on the appellant was reduced to  that already undergone by him. The appellant was accordingly ordered  to be,  set at  liberty  forthwith  but since  the  order  of  conviction  passed  against  him  was sustained by the High Court, he preferred the present appeal with special leave obtained from this Court.      It is  now well established as a result of the decision of this  Court in  Hussainara Khatoon’s case [1979] 3 S.C.R. 532 that  "the right  to free  legal service  is  .......... clearly an essential ingredient of reasonable, fair and just procedure for  a person accused of an offence and it must be held to  be 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 require, provided of course the accused person  does not  object to  the provision  of  such lawyer". This  Court pointed  out that  it is  an  essential ingredient  of   reasonable,  fair  and  just  procedure  to prisoner who  is to  seek his liberation through the court’s process that  he should have legal service available to him. The same  view was taken by a Bench of this Court earlier in M.H. Hoskot v. State of Maharashtra, [1978] 3 S.C.C. 544. It may therefore  now be  taken as  settled law that free legal assistance at  State cost is a fundamental right of a person accused of  an offence  which may  involved jeopardy  to his life or  personal liberty  and  this  fundamental  right  is implicit in  the requirement  of reasonable,  fair and  just procedure prescribed  by Article  21. Of  course, it must be recognised that  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  service  may  not  be provided by  the State. There can in the circumstances be no doubt that the 595 appellant was  entitled to  a free legal assistance at State cost when  he was  placed in peril of their personal liberty by reason  of being  accused of  an offence  which is proved would clearly entail imprisonment for a term of two years.      But the  question is  whether  this  fundamental  right could lawfully  be denied  to the  appellant if  he did  not apply  for   free  legal   aid.  Is  the  exercise  of  this fundamental right  conditioned upon the accused applying for free legal  assistance so  that  if  he  does  not  make  an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him?  Now it  is common  knowledge that  about 70% of the people living  in rural  areas are  illiterate and even more than that  percentage of  the people  are not  aware of  the rights conferred  upon them  by law. Even literate people do not know  what are  their rights  and entitlements under the law.  It  is  this  absence  of  legal  awareness  which  is responsible for  the deception, exploitation and deprivation of rights  and benefits  from which  the poor suffer in this land. Their  legal  needs  always  stand  to  become  crisis oriented  because   their  ignorance   prevents  them   from anticipating legal  troubles and  approaching a  lawyer  for consultation and  advise in time and thier poverty magnifies the impact  of the legal troubles and difficulties when they come. Moreover,  because of  their ignorance and illiteracy,

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they cannot  become  self-reliant:  they  cannot  even  help themselves. The  law ceases  to be  their protector  because they do not know that they are entitled to the protection of the law  and they  can avail  of the legal service programme for putting  an end  to their exploitation and winning their rights. The  result is  that poverty  becomes  with  them  a condition of total helplessness. This miserable condition in which the  poor finds  themselves can be alleviating to some extent by creating legal awareness amongst the poor. That is why it  has always  been recognised  as one of the principal items of  the programme  of the  legal aid  movement in  the country  to  promote  legal  literacy.  It  would  in  these circumstances 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. This is the reason why in  Khatri &  Ors. v.  State of  Bihar &  Ors., [1981] 2 S.C.R. 408,  we ruled  that the  Magistrate or  the Sessions Judge before  whom an  accused appears  must be  held to  be under an obligation to inform the 596 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.  We deplored that  in that  case where  the accused were blinded prisoners  the   Judicial  Magistrate  failed  to  discharge oblligation and  contented themselves  by  merely  observing that no  legal representation  had been  asked  for  by  the blinded  prisoners   and  hence   none  was   provided.   We accordingly directed "the Magistrates and Sessions Judges in the country  to inform  every accused who appear 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 of the free legal services provided by the State. We  also gave  a general  direction to every State in the country  "........ to  make provision  for grant of free legal service to an accused who is unable to engage a lawyer on  account   of  reasons  such  as  poverty,  indigence  or incommunicado situations," the only qualification being that the offence  charged against  an 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 that  the needs of social justice require that he should be given  free legal  representations. It  is quite possible that since  the trial was held before the learned Additional Deputy Commissioner  prior to  the declaration of the law by this Court  in Khatri  & Ors. v. State of Bihar (supra), the learned Additional  Deputy Commissioner  did not  infrom the appellant that  if he  was not  in a  position to  engage  a lawyer on  account of  lack of  material  resources  he  was entitled to  free legal  assistance at  State cost nor asked him whether  he would like to have free legal aid. But it is surprising that  despite this  declaration  of  the  law  in Khatri &  Ors. v.  State of  Bihar &  Ors. (supra)  on  19th December 1980  when the  decision was rendered in that case, the High  Court persisted  in taking the view that since the appellant  did  not  make  an  application  for  free  legal assistance,  no  unconstitutionality  was  involved  in  not providing him  legal representation  at State  cost.  It  is obvious that  in the  present case  the  learned  Additional Deputy Commissioner did not inform the appellant that he was entitled to  free legal  assistance nor  did he inquire from the appellant  whether he  wanted a lawyer to be provided to them at State cost. The result was that the appel-

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597 lant remained  unrepresented  by  a  lawyer  and  the  trial ultimately resulted  in his  conviction. This  was clearly a violation of  the fundamental  right of  the appellant under Article 21  and the  trial must  accordingly be  held to  be vitiated on account of a fatal constitutional infirmity, and the conviction  and sentence  recorded against the appellant must be set aside.      The appellant  contended that  if  the  conviction  and sentence recorded  against  him  is  set  aside,  the  order dismissing the appellant from service passed on the basis of his conviction by the learned Additional Deputy Commissioner must also  be quashed  and he  must be reinstated in service with back  wages. Now  it is  true that  the  appellant  was dismissed from service without holding an inquiry on account of his  being convicted for a criminal offence and since the conviction of  the appellant  is being  set aside by us, the order of  dismissal must also fall and the appellant must be reinstated in service with back wages. But the result of our quashing the  conviction of the appellants would be that the appellant would  have to  be tried  again in accordance with law after  providing free  legal assistance  to him at State cost and  that would  mean that the appellant would continue to be exposed to the risk of conviction and imprisonment and the possibility cannot be ruled out that the offence charged may ultimately be proved against him and he might land-up in jail and  also lose their service. We therefore felt that it would not  only meet  the ends of justice but also be in the interest of the appellant that no fresh trial should be held against him  and he  should be  reinstated  in  service  but without back wages. We accordingly direct that the appellant shall be  reinstated in service but he shall not be entitled to claim  any back  wages and  no fresh  trial shall be held against him.  The appeal  will stand  disposed of  in  these terms. M.L.A.                                       Appeal allowed. 598