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2003 (1) Crimes 306
Bombay High Court
G.D. Patil, Actg C.J. & V.K. Tahilamani, J.
Kisan Devka Pawar —Appellant
versus
State of Maharashtra —Respondent
Crl. Appeal No. 222 of 2002
Decided on 26-7-2002
Counsel for the parties:
For the Appellant : Ms. Shobha Gopal, Advocate.
For the Respondent-State : Mr. U.V. Kejeriwal, A.P.P.
Held: It is undoubtedly the right of the appellant to be provided with free legal assistance. It is now well established as a result of the decision of the Apex Court in Hussainara Khatoon’s case AIR 1979 SC 1369, 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, provi-ded 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 a 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 the Bench of the Apex Court earlier in M.H. Hosket v. State of Maharashtra, AIR 1978 SC 1548. It may, therefore, now be taken as settled law that free legal assis-tance 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 fundamen-tal reasonable, fair and just procedure prescribed by Article 21”. (Para 10)
Result: Appeal allowed. Matter reman-ded.
V.K. Tahilramani, J.— We have heard Ms. Shobha Gopal, learned Advocate appointed Amicus Curiae for the appellant and the learned A.P.P. for the State. By consent, matter is finally heard at the admission stage itself. Paper books are dispensed with.
2. The appellant has preferred this appeal through jail. The appellant has been convicted for the offence under Section 302 of the IPC and sentenced to life imprisonment in Sessions Case No. 100 of 1999 by judgment and order dated 11th July, 2001 by the ad hoc Additional Sessions Judge, Thane.
3. In this appeal, the appellant has prayed for re-trial. The contention of the appellant is that he was not provided legal aid for his defence and the entire trial was completed in the absence of any defence Advocate who was representing the appellant.
4. We have also perused the entire record and proceedings of the present appeal. On perusal of the record, the facts which are revealed are as under :
That the appellant-accused was arrested on 11th February, 1998. His case was committed to the Sessions Court on 27th January, 1999. The appellant had not engaged any Advo-cate. On 22nd May, 1999 an applica-tion (Exhibit-4) was filed by the appe-llant for engaging Advocate at Govern-ment costs (Legal aid). Thereafter, Mr. S.B. Vaishampayan was appointed to defend the appellant by an order dated 11th June, 1999.
On 14th July, 1999 Mr. S.B. Vaishampayan appeared for the appellant. Thereafter the case was adjourned from time-to-time. On at least half of the occasions, the learned Advocate Mr. S.B. Vaishampayan remained absent.
5. Thereafter, on 16th February, 2000 Mr. S.B. Vaishampayan for the appellant was present. On that day, the A.P.P. filed an application under Section 294 of the Code of Criminal Procedure and certain documents came to be admitted in evidence. Thereafter witnesses’ summons were issued. However, on the next date as the learned Advocate for the appellant was absent, the witnesses were dis-charged.
6. Thereafter on many occasions Mr. S.B. Vaishampayan remained absent. On 11th October, 2000 the appellant again preferred an applica-tion (Exhibit-11) that he may be provided Counsel from legal aid panel. Hence, a letter was issued to the learned Advocate Mr. S.B. Vaisham-payan that if he is not willing to work, another Advocate can be appointed. However, thereafter, on 13th February, 2001 the Advocate remained present. Again on the next two occasions i.e., on 13th March, 2001 and 10th April, 2001 he remained absent. Hence, a letter was issued to the Advocate informing him that the case is fixed for hearing on 9th May, 2001. Thereafter, on 9th May, 2001 four witnesses were present, however, the said witnesses were discharged as the learned Advo-cate was absent.
7. Thereafter, by an order dated 9th May, 2001, the case came to be transferred to Ist ad hoc Additional District Judge and Additional Sessions Judge, Thane for disposal. The summ-onses were issued to the witnesses on 12th June, 2001. On 28th June, 2001 the learned Advocate for the appellant was again absent.
8. On 4th July, 2001, the lear-ned Advocate for the appellant was absent though the case was repeatedly called out. On that day four witnesses came to be examined. The case was then adjourned to 9th July, 2001. Again the learned Advocate for the appellant was absent when the case was called out repeatedly. On that day, the witness Nos. 5 and 6 were examined and then the application (Pursis) was preferred by the A.P.P. for closing the case. On both the days the appellant was asked to cross-examine the witnesses. The appellant cross-examined PW Nos. 1, 2, 3, 4 and 6 and declined to cross-examine PW 5. The cross-examination mostly consists of one sentence only. Thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The case was adjourned for judgment to 11th July, 2001. On 11th July, 2001 the judgment was delivered and the accused came to be convicted under S
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