1998 Supreme(Guj) 684

Gujarat High Court
Judgename :A.M.KAPADIA, J.N.Bhatt
LABHU LAXMANBHAI VGHASIYA - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 540 of 1998
Decided On : 12/11/1998

Headnote:a) Criminal Procedure Code, 1973 - Sec. 304 - Legal aid to accused at State expense in certain cases - Object is that undefended and unrepresented accused person gets free & fair, just and reasonable trial of a charge in criminal case - Mere performing formality of asking question of legal aid is not the end & compliance of the provision.

       Mere performing formality of asking question of legal aid, under Sec. 304 of the Code of Criminal Procedure, 1973 (`the Code for short), is not the end or the object. The purpose of providing free and competent legal aid to the undefended and unrepresented accused persons, is to see that the accused gets free and fair, just and reasonable trial of a charge, in a criminal case, against him, in terms of various pronouncements, and the provisions of law, in general, and the provisions of Sec. 304 of the Code, Sec. 12 of The Legal Services Authorities Act, 1987 (No. 39 of 1987) and as amended by the Legal Services Authorities (Amendment) Act, 1994 (No. 59 of 1994) and the Constitutional mandates enshrined in Arts. 14, 16, 19, 21, 39-A and 51-A.

       [Para 20]

       (b) Vade Mecum - Legal service - Necessity of introducing a dynamic & comprehensive legal service programme - Object in view to providing justice to common man - Observation.

       This Court may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across law for the poor rather than law of the poor. The law is regarded by them as something mysterious and forbidding - always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.

       [Para 28]

       Court would, strongly, recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Art. 14 and right to life and liberty conferred by Art. 21, but also the compulsion of the constitutional directive embodied in Art. 39-A.

       [Para 29]

       (c) Constitution of India, 1950 - Art. 21 - Guarantee of reasonable fair & just procedure of trial - Obligation of the State to device such a procedure - Delay in trial can not be excused on ground of financial-constrains - It is a constitutional obligation not only of State but also of the Court.

       The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new Courts, building new Court houses, providing more staff and equipment to the Courts, appointment of additional Judges and other measures calculated to ensure speedy trial. We find that in fact Courts in the United States have adopted this dynamic and constructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment. The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through decisions such as Holt vs. Sarver, 309 F Supp 362, Johes vs. Witlenberg, 330 F Supp 707, Newman vs. Alabama, 349 F Supp 278 and Gates vs. Collier, 349 F Supp 881. The Court in the last mentioned case asserted that it has the duty of fashioning the decree that will require defendants to eliminate the conditions and practices, at Parchman, hereinabove, found to be violative of the United States Constitution and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary. The powers of this Court in protection of the constitutional right are of the widest amplitude and we do not see why the Court should not adopt a similar activist approach and issue to the State directions which may involve taking of position action with a view to securing enforcement of the fundamental right to speedy trial.

       [Para 30]

       (d) Judicial Administration - Role of a Judge - Not that of a silent spectator or a mute observer but like a active dynamic dispenser of justice.

       It could very well be said that in an adversarial system of trial to which we have wedded and which has its legacy in English jurisprudence, the role of a Judge assumes higher and wider significance. He cannot afford only to be a referee or umpire and allow the dispute being fought in right or the other direction in the course of the legal battle in the court of law. Has has to be live to the lis to be adjudicated upon. He has to work like an active, dynamic dispenser of justice and not like a computer. We have guided missiles and therefore cannot have unguided persons. The persons incharge of the judicial administration cannot be silent spectator or a mute observer, even in case of the jettisoning of justice out of law and perpetuation of the provisions of law or miscarriage of justice. A Judge, as, rightly, said, that he is not only a dispenser of justice, he is not only social engineer, he is not only a mechanic, he is not only a legal auditor but he has to be a dynamic, living, thriving, dispenser of justice bearing in mind the entire canvas and the design of the case in hand, as an architect.

       [Para 39]

       (e) Penal Code, 1860 - Sec. 302 - Conviction - Trial without any legal assistance to accused - Even without appointment of an amicus curiae - Examination of prosecution witnesses with no cross examination - Court also did not exercise any option of putting any question under Sec. 165 of the Evidence Act - As a result Court held, conviction not sustainable & remitted the case to Sessions Judge for denovo trial according to law.

       Now, at this stage, since, unfortunately, the alleged complicity occurred in the year 1997 and the trial had also concluded in the same year, without entering into other alternatives and other options, we deem it expedient to remit the matter to the Trial Court back quashing the impugned judgment and order and, obviously, from the stage of recording plea. In other words, the outcome of our direction of remitting the case to the Trial Court is, obviously, for the trial, `de-novo. It is also in the larger interest of justice and also to enhance the doctrine of fairplay, to direct to entertain and adjudicate upon the trial by any other Court than one which has recorded the impugned judgment and order. We, therefore, direct the learned Sessions Judge, Bhavnagar, to distribute the business of this trial to any other Senior Additional Sessions Judge for `de-novo trial, according to law. Although, ordinarily, the preparation of the calendar of the time schedule is a prerogative of the Court concerned, we are prompted to make contours of the time frame for no fault of the appellant/original accused he had to travel, unnecessarily, through long legal conduit pipe and, therefore, the Court concerned to which this matter may be allotted, shall entertain an dispose of the matter, expeditiously, and preferably, not later than six months after receipt of the matter or the writ from this Court, bearing in mind our aforesaid observations and discussions, essentially, referable to the provisions of efficient and sufficient and free and competent legal aid to the accused not only under Sec. 304 of the Code but also bearing in mind the constitutionalised concept of legal services in place of legal aid.

       [Para 40]