The main legal point established in the judgment is the fundamental right of an accused to be represented by a counsel and the obligation of the state to provide free legal aid, as guaranteed under Article 21 and Article 39-A of the Constitution of India.

Ranjit Singh, J.

1. The petitioner-Karnail Chand, who has been convicted by General Security Force Court and presently undergoing life imprisonment, has mis-conceivedly filed an application under Section 374(2) of the Criminal Procedure Code to challenge his conviction by General Security Force Court (for short GSFC), which as per him, had held him guilty without appreciating evidence in its true perspective. His plea also is that Court failed to take note of the lacunas in the prosecution case and the evidence brought on file. Through this communication received through Superintendent Jail, which is termed as appeal, the petitioner has submitted that the Trial Court (meaning GSFC) erred in not appreciating the evidence. As per the petitioner, he was wrongly convicted and is pleading innocently that the prosecution version was false. This one page petition was sent to this Court through Jail, would not only be an indication of his poor state, but would show, how an absence of legal advice can deprive a person from raising even challenge to his conviction & sentence and thus deprive him of his right to life & liberty guaranteed under Constitution. This short, crisp misinformed communication was treated as petition and registered as Criminal Writ Petition No.395 of 2008. This liberal legal approach has come to the rescue of the petitioner, who otherwise would have suffered this sentence & consequence of trial silently in jail without being aware of his right to challenge his conviction & sentence in proper legal manner and the grounds and basis on which this challenge could be made.

2. A petition submitted through Jail meant that no one was there to assist either the cause of the petitioner or to assist the court. Here again this Court came to his rescue and requested a counsel of this Court to assist as Amicus Curiae. The counsel due to some undisclosed reasons chose not to appear on some dates necessitating adjournment of this case on number of occasions. He had then appeared only to make a request for adjourning the case. The case was, thus, again adjourned on number of occasions. Courts could certainly expect better assistance from Amicus. Left with no option, the Court ultimately requested to Ms. Tanu Bedi, another counsel of this Court for assistance. The case has, thereafter, been heard.

3. Since there was total lack of pleadings in this case, the amicus did well to place on record written arguments to which the respondents responded with detailed submissions in writing. The plea is to challenge conviction & sentence and this would be a writ of record. Decision would not depend upon pleadings and it will be well within the domain of this Court to examine the record and the proceedings of GSFC to test the validity of the conviction & sentence. The technicalities regarding lack of pleadings should not come in the way of the petitioner nor this Court should feel any constraint by any such of lack of pleadings. The main ground of attack is inability of the petitioner to engage a counsel, which is rather apparent from the manner in which he has not been able to have any assistance even to challenge his conviction & sentence in a proper manner. After all, it is a case of life and liberty of an individual. He has approached this Court with a plea that conviction and the sentence is an outcome of a trial, where he was not given fair chance to defend. The petitioner is still undergoing the rigors of sentence and can simply plead that his continuous custody is based on a verdict where he suffered an unfair trial and thus, his continued detention is illegal. Respondents then can be called upon to show that the petitioners conviction and sentence is legally valid and can not be faulted on the grounds as urged by the petitioner.

4. Let us first get the hang of the issues agitated as can be noticed from the proceedings of GSFC.

5. The petitioner was enrolled as a constable in the BSF on 1.4.1988. After completing his basic trai