Back
Gujarat High Court
Judgename :J.N.Bhatt, J.R.Vora
DINESHBHAI DHEMENRAI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL921 of 1998
Decided On : 07/31/2000
It is not only the right of the accused to have free and competent legal aid for his defence for fair and free trial, but it is mandatory for the Court to provide competent legal aid to the accused in defence, when he is found disabled to procure service of a private Advocate for his defence or, in a case, where, he himself embarks upon conducting the trial and, who, is an ignorant, illiterate, unsophisticated villager or even a literate who is not a legally trained person, and more so, when he is going to be visited with minimum sentence of 10 years or to consider alternative of engaging services of lawyer under the concept and philosophy of `amicus curiae.
[Para 52]
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 304 - Free legal aid - Offence under Sec. 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Accused said `no to free legal aid before trial Court and defended the case in person - Trial resulted in 10 years RI and fine of Rs. 1 lac - Held, duty of Court does not cease on having heard the party in person - It is the duty of Presiding Officer to acquaint the accused of resultant effect in not availing free legal aid - Accused is entitled to be defended as of right by an Advocate - Court failed to resort to provision of Sec. 165 of Evidence Act for free, fair, just and reasonable trial - Judgment and order of trial Court perverse and illegal.
The fairness of trial is the `sine qua non in any criminal trial. Law without justice is blind, whereas, justice without law is lame. It is, the duty of the Presiding Officer to be alive to the provision of law to draw the attention of the accused, about the resultant effect in not availing legal aid benefit in course of the trial.
[Para 50]
(c) Constitution of India, 1950 - Arts. 22(1) & 39-A - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 304 - Legal Services Authorities Act, 1987 - Sec. 12 - Free legal aid and appointment of `amicus curiae - Conviction and sentence under Sec. 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - On saying `no to legal aid trial culminated without appointing `amicus curiae - Held, it is incumbent upon the Court to ensure that accused has in reality understood the tenor and context of question - It is the duty of the Court to consider requisition of services of amicus curiae in serious, complex and capital charge or matter.
Even in a case of conviction appeal, at the instance of the accused and though he has engaged a private Advocate at his own cost, when remains absent on the day of hearing, it would not be expedient or proper for the Court to decide the conviction appeal without appointing an `amicus curiae for the defence of the accused, who would be able to highlight the favourable points of the accused.
[Para 53]
Ultimate anxiety of the Court, always, should be to see that an accused, who is facing serious, complex and capital charges, receives as far as possible, in one or the other mode, the help and assistance of a trained and competent person like a lawyer so as to see that he gets free, fair and objective trial, which is the `sine qua non of the criminal jurisprudence, and it is as such a fundamental human right.
[Para 26]
(d) Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) - Sec. 20(b)(ii) - Conviction - Sentence of 10 years RI and Rs. 1 lac fine, challenged under Sec. 374 CrPC - Held, judgment and order convicting the appellant, preverse and illegal - Accused not defended by trained legal person - Matter under Sec. 20 (b)(ii) being of serious nature Court failed to appoint amicus curiae - Trial not fair, free, just or reasonable - Conviction and sentence quashed and set aside - Matter remanded to trial Court for de novo trial observing celebrated principle of law providing competent legal aid.
( 1 ) ). COULD it be said that the accused was afforded with an opportunity of effective and efficient hearing and paragon and promising, putative and palliative Legal Aid in a serious and major Criminal trial, wherein, minimum sentence, statutorily prescribed is 10 years and minimum penalty of fine is Rs. 1,00,000 ? It is the heart and main theme of this Conviction Appeal, on hand.
( 2 ) ). In this appeal under Sec. 374 of the Code of Criminal Procedure, 1973, the appellant-original-accused has assailed the legality and validity of the judgment and sentence order recorded by the Additional Sessions Judge on 19th september, 1998 in N. D. P. S. Case No. 3 of 1998, whereby, the accused came to be convicted for having committed offence punishable under Sec. 20 (b) (ii) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act) and after hearing him on the quantum of sentence and considering the fact that wife of the accused who is suffering from deadly disease like cancer and in whose family there is none to take care of his wife, came to be convicted minimum sentence of ten years rigourous imprisonment and fine of Rs. 1 lac and in default to undergo R. I. for one year more.
( 3 ) ). The learned advocate for the accused appointed under Legal Aid Scheme, by this Court, has raised the following three contentions : (1) That the impugned judgment and sentence could not be sustained as the accused was not afforded real and sufficient opportunity to defend his case as he could not afford private legal services on account of the extreme poverty and indigence and without understanding the nature and type of charge under n. D. P. S. Act, which carries minimum sentence of ten years and minimum fine of Rs. 1 lac under Sec. 20 (b) (ii) remaining ignorant and indifferent about the scheme and the assistance of the Advocate at the Government cost, which has resulted into great amount of miscarriage of justice. (2) That the accused person was not real culprit and he became scapegoat and the real don got escaped and he is wrongly involved in the serious offence of N. D. P. S. Act. That many such innocent and indigent and under privileged persons are made victims for saving skin of Dons and Mafias. (3) That the entire approach of the trial Court in reaching to the conclusion which is under challenge is not only unjust, unreasonable, but is illegal, and therefore, the impugned conviction judgment and sentence order must be quashed.
( 4 ) ). After having taken into consideration, threadbare, the entire evidence, the catalogue of chronological contours, the underlying design and desideratum of providing free and competent legal aid to the accused and without ascertaining satisfactorily, as to whether the accused understood the seriousness of the charge and minimum sentence under Sec. 20 (b) (ii) of the N. D. P. S. Act, and also without exercising the discretion of appointing an amicus curiae or powers under Sec. 165 of the Evidence Act, while viewed in the light of the professed and pronounced purpose and object of providing free and competent legal aid to the accused for his defence, and also relevant proposition of law, we are sorry to say, with due respect, that the approach of the trial Court in passing the impugned judgment and order is perverse and illegal, which has culminated into miscarriage of justice. We would hasten to articulate the reasons and the settled proposition of law on this score, immediately, hereinbelow.
( 5 ) ). The textual and contextual background of the facts emerging from the record, the aforesaid saying is, once again, repeated for the bad luck of the appellant-original-accused, despite, the fact that providing free and competent legal aid, and, that too, in a criminal trial, is not only a national project, policy or principle, but is a globally acceptable and recognized phenomena and fundamental Human Right.
( 6 ) ). It will be very interesting to first refer to the propositi
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
