RAJOO @ RAMAKANT Vs STATE OF M.P.
Bench: A.K. PATNAIK,MADAN B. LOKUR
Case number: Crl.A. No.-000140-000140 / 2008
Diary number: 16119 / 2007
Advocates: UMA DATTA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 140 OF 2008
RAJOO @ RAMAKANT …..Appellant
Versus
THE STATE OF MADHYA PRADESH …..Respondent
J U D G M E N T
Madan B. Lokur, J.
After hearing arguments in this appeal, we had reserved
judgment. While preparing the judgment, it was noticed that the
appellant (Rajoo) was not represented in the High Court.
The issue that arises, therefore, is whether Rajoo was
entitled, as a matter of right, to legal representation in the High
Court. Our answer is in the affirmative.
The facts:
On 06.12.1998, seven persons including Rajoo are alleged to
have gang-raped ‘G’. The Trial Court convicted all of them for the
offence and sentenced each of them to 10 years rigorous imprisonment
and a fine of Rs. 500/-. In default thereof they were required to
undergo rigorous imprisonment for a further period of 3 months.
Appeals were filed by all the convicted persons before the High
Court. By its judgment and order dated 05.09.2006, the High Court
set aside the conviction in respect of five of the convicts, but
upheld the conviction in respect of Rajoo and Vijay. We have been
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informed that Vijay has accepted the judgment of the High Court.
Only Rajoo has appealed against his conviction and sentence.
Before us Rajoo was represented by learned counsel who took us
through the material on record and made his submissions.
Constitutional and statutory provisions :
By the 42nd Amendment to the Constitution, effected in 1977,
Article 39-A was inserted. This Article provides for free legal aid
by suitable legislation or schemes or in any other manner, to ensure
that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities. Article 39-A
of the Constitution reads as follows:-
39A. Equal justice and free legal aid. – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in 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.
Subsequently, with the intention of providing free legal aid,
the Central Government resolved (on 26th September, 1980) and
appointed the “Committee for Implementing the Legal Aid Schemes”.
This committee was to monitor and implement legal aid programs on a
uniform basis throughout the country in fulfillment of the
constitutional mandate.
Experience gained from a review of the working of the committee
eventually led to the enactment of the Legal Services Authorities
Act, 1987 (for short, the Act).
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The Act provides, inter alia for the constitution of a National
Legal Services Authority, a Supreme Court Legal Services Committee,
State Legal Services Authorities as well as Taluk Legal Services
Committees. Section 12 of the Act lays down the criteria for
providing legal services. It provides, inter alia, that every person
who has to file or defend a case shall be entitled to legal
services, if he or she is in custody. Section 13 of the Act
provides that persons meeting the criteria laid down in Section 12
of the Act will be entitled to legal services provided the concerned
authority is satisfied that such person has a prima facie case to
prosecute or defend.
It is important to note in this context that Sections 12 and 13
of the Act do not make any distinction between the trial stage and
the appellate stage for providing legal services. In other words, an
eligible person is entitled to legal services at any stage of the
proceedings which he or she is prosecuting or defending. In fact the
Supreme Court Legal Services Committee provides legal assistance to
eligible persons in this Court. This makes it abundantly clear that
legal services shall be provided to an eligible person at all stages
of the proceedings, trial as well as appellate. It is also important
to note that in view of the constitutional mandate of Article 39-A,
legal services or legal aid is provided to an eligible person free
of cost.
Decisions of this Court :
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Pending the enactment of the Legal Services Authorities Act,
the issue of providing free legal services or free legal aid or free
legal representation (all terms being understood as synonymous) came
up for consideration before this Court.
Among the first few decisions in this regard is Hussainara
Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98. In
that case, reference was made to Article 39-A of the Constitution
and it was held that free legal service is an inalienable element 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
[of the Constitution].” It was noted that this is “a constitutional
right of every accused person who is unable to engage a lawyer and
secure free legal services on account of reasons such as poverty,
indigence or incommunicado situation.” It was held that 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,
subject of course to the accused person not objecting to the
providing of a lawyer.
The essence of this decision was followed in Khatri (II) v.
State of Bihar, (1981) 1 SCC 627. In that case, it was noted that
the Judicial Magistrate did not provide legal representation to the
accused persons because they did not ask for it. This was found to
be unacceptable. This Court went further and held that it was the
obligation of the Judicial Magistrate before whom the accused were
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produced to inform them of their entitlement to legal representation
at State cost. In this context, it was observed that the right to
free legal services would be illusory unless the Magistrate or the
Sessions Judge before whom the accused is produced informs him of
this right. It would also 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 thereby rendering the constitutional mandate a mere
paper promise.
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC
401 reiterated the requirement of providing free and adequate legal
representation to an indigent person and a person accused of an
offence. In that case, it was reiterated that an accused need not
ask for legal assistance – the Court dealing with the case is
obliged to inform him or her of the entitlement to free legal aid.
This Court observed that it was now “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 or personal
liberty and this fundamental right is implicit in the requirement of
reasonable, fair and just procedure prescribed by Article 21 [of the
Constitution].”
Since the requirements of law were not met in that case, and in
the absence of the accused person being provided with legal
representation at State cost, it was held that there was a violation
of the fundamental right of the accused under Article 21 of the
Constitution. The trial was held to be vitiated on account of a
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fatal constitutional infirmity and the conviction and sentence were
set aside.
We propose to briefly digress and advert to certain
observations made, both in Khatri (II) and Suk Das. In both cases,
this Court carved out some exceptions in respect of grant of free
legal aid to an accused person. It was observed 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 services need not
be provided by the State.” We have some reservations whether such
exceptions can be carved out particularly keeping in mind the
constitutional mandate and the universally accepted principle that a
person is presumed innocent until proven guilty. If such exceptions
are accepted, there may be a tendency to add some more, such as in
cases of terrorism thereby diluting the constitutional mandate and
the fundamental right guaranteed under Article 21 of the
Constitution. However, we need not say anything more on this
subject since the issue is not before us.
The above discussion conclusively shows that this Court has
taken a rather pro-active role in the matter of providing free legal
assistance to persons accused of an offence or convicted of an
offence.
Another view:
A slightly different issue had recently arisen in Clark v.
Registrar of the Manukau District Court, (2012) NZCA 193. The issue
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before the Court of Appeal in New Zealand was whether legally aided
defendants in criminal proceedings are entitled to choose or prefer
the counsel assigned to represent them. The discussion in that case
centered round the New Zealand Bill of Rights Act, 1990 and the
issue was answered in the negative.
However, in the course of discussion, the Court observed that
the right of a fair trial is guaranteed by the Bill of Rights Act
and it is an absolute right. A fundamental feature of a fair
trial is a right to legal representation under the Bill of Rights
Act. Reference was made to the decision of the Supreme Court of New
Zealand in Condon v. R, (2006) NZSC 62 wherein it was concluded that
representation by a lawyer is nearly always necessary for a trial
for a serious offence to be fair. An accused person must have legal
representation or at least should have been afforded a reasonable
opportunity of attaining it when charged with a serious offence.
But, the Supreme Court held that:
“An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer’s services – in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is under s 24(f) [of the Bill of Rights Act], when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the accused who must take the necessary steps to obtain assistance under the Legal Services Act.”
It was noted that the Supreme Court agreed with the High Court
of Australia in Dietrich v. R, 1992 HCA 57 that, other than in
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exceptional circumstances, “an accused who conducts his or her own
defence to a serious charge, without having declined or failed to
exercise the right to legal representation, would not have had a
fair trial.” A conviction obtained in such circumstances would be
quashed unless the prosecution is able to satisfy the appellate
Court that the trial was actually fair.
That there is a right of legal representation available to an
accused is undoubted, even in New Zealand and Australia. The only
point of disagreement appearing from Condon, as far as we are
concerned, is whether the accused should be asked whether he or she
requires legal assistance or not. The Supreme Court in New Zealand
appears to have taken the view that the role of the State (and
indeed of the Court) in this regard is passive. The view taken by
this Court on issues of legal representation, on the other hand, is
pro-active and an obligation is cast on the Court to enquire of the
accused or convict whether he or she requires legal representation
at State expense.
Conclusion:
Under the circumstances, we are of the opinion that neither the
Constitution nor the Legal Services Authorities Act makes any
distinction between a trial and an appeal for the purposes of
providing free legal aid to an accused or a person in custody. We
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are also of the view that the High Court was under an obligation to
enquire from Rajoo whether he required legal assistance and if he
did, it should have been provided to him at State expense. However,
since the record of the case does not indicate any such endeavour
having been made by the High Court, this case ought to be re-heard
by the High Court after providing Rajoo an opportunity of obtaining
legal representation.
We dispose of this appeal by setting aside the judgment and
order dated 05.09.2006 passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.3 of 1991 and remit the case records
back to the High Court for a fresh hearing. We request the High
Court to expedite hearing the appeal.
….…….……………………..J. (A.K. Patnaik)
...............J. (Madan B. Lokur) New Delhi; August 9, 2012
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