Arjun Karmakar (in Jail) vs State of Assam

K. Lahiri, J.—The Appellant has been convicted u/s 302 I.P.C. and sentenced to imprisonment for life by the Additional Sessions Judge, Jorhat in Sessions Case No. 83 (K-G) of 1979.

When, the bearing of the appeal was about to be concluded by learned Public Prosecutor, we ourselves found, to our utter surprise that the accused was denied of his Constitutional right to the assistance of a lawyer provided at State costs. During the course of the bearing of the appeal we were surprised to notice that there was no cross-examination worth the name. Admittedly, the Appellant, a tea garden workman, was unable to engage a lawyer or secure legal service on account of poverty, indigence and incommunicado situation. Learned Additional Sessions Judge accordingly engaged Shri A.T. Thakur, an advocate of Jorhat as State defence. On 12.6.83, the date of hearing of the case, Shri Thakur was absent and learned Addl. Sessions Judge promptly appointed an Advocate of Golagbat to defend the accused at the cost of the State, On the very tame date, the prosecution examined all their witnesses and closed the case. The statement of the accused was recorded and arguments were heard on that date but delivery of the judgment was reserved. It is thus seen that on 12.8.83, a new advocate was called upon to take up the case and on the very same date all the witnesses for the prosecution were examined, cross-examined and discharged, the accused was examined and arguments concluded. There is no materiel to show that even the brief of the case could be provide to the newly engaged Counsel. It is, therefore, not surprising that there was no cross-examination worth the name. Not a single witness was confronted with the statements made before the police. It was "a mock trial". It was a case which could result in capital punishment.

Is it providing free legal aid to appoint a fresh lawyer'' on the date of the trial when the accused is faced with a grave offence of culpable homicide amounting to murder? Was it just, expedient, proper and rational to band over the charge of an important case to a new lawyer, call upon him to prepare the case, cross-examine the witness and argue it on the very same day? We feel that the accused was consigned to death on the date of commencement of the trial. It is humanly impossible even for an experienced lawyer to prepare such a case without instructions, without having at least a fortnight''s time to prepare the case. Legal aid was given to be denied. The accused was deprived of a fair trial. The trial bas been vitiated and on this ground alone the appeal must be allowed. The reason for the a party or deviation is not far to seek the accused is poor and that is his grave crime.

We reiterate that an indigent prisoner has a Constitutional right to free legal aid. Failure to provide free legal aid to an indigent is volatile of the basic and fundamental norms of Justice. One of the ingredients of "fair procedure" is to provide free legal aid to a prisoner who is indigent or other wise disabled to secure legal aid. We rely on the observations of prof. Vence Yalo, "Gideon''s trumpet of Black J. the stimulating philosophy of Legal Aid bye Mr. Justice Brennan, quotes from "The Poverty Jurisprudence" of Douglas J. in Jon Richard Argersinger v. Raymonds, commonly known as Raymond''s case 407 US 25, 32 L.Ed. 530 (335, 536 and 554), Article 8 of the Universal Declaration of Human Rights, Article 14(3) of the International Covenants on Civil and Political Rights and extracts from the Report of the High Powered Committee on Free Legal Aid, "Processes Justice to the People", and Article 39A of the Constitution, all referred in Haskot AlR 1973 SC 1548. We draw the attention of the members of the Judiciary to Nandini Satpathy v. P.L. Dani AIR 1978 SC 1024 , Khatri and Others Vs. State of Bihar and Others, Hussainara No. v. (1980) I SCC 108 . In Gendra Brahma and Others Vs. The State of Assam, , Kuthu Goala Vs. The State of Assam, State of Assam v. Rabindra Nath Guha, Criminal Death Ref. 2 of 1981 and Criminal Appeal No. 27(J) of 1981. wherein following the law laid down by Supreme Court it has been held that it is the constitutional right of every prisoner, who is unable to engage a lawyer or secure a legal service on account of poverty, indigence or incommunicado situation to have free legal service at the expense of the State. To deny the right is to contravene the provisions of Article 21 of the Constitution. We extract the golden rule laid down by the Supreme Court in Khatri (supra):

We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.

[Emphasis added]

In Suk Das Vs. Union Territory of Arunachal Pradesh, Bhagwati, C.J. speaking for the court has emphatically laid down 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. The fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The exercise of this fundamental right is not conditions'' upon the accused applying for free legal assistance so that if be does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation to him. In Suk Das (supra) the accused persons were convicted without informing them that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost "which resulted in the accused remaining unrepresented by a lawyer in the trial", It was held to be a violation of the fundamental right of the accused under Article 21 and the trial was held to be vitiated on account of the fatal constitutional infirmity.

In the instant case, a fresh lawyer was appointed on the date of the trial without informing the Appellant that he had a right to be represented by a Counsel u/s 304(1) Code of Criminal Procedure read with Article 39A of the Constitution. In the instant case, a lawyer was engaged to comply with the formalities. No legal aid was provided to the accused in the instant case as it was impossible for the lawyer to prepare the case instantaneous sly, cross-examine the witness sod argue a completed case on the very same date, This is not providing legal aid to the accused. At best it could be called providing a legal aid to a lawyer. The accused was denied of the assistance of a lawyer. Miss U. Barua, learned Public Prosecutor has fairly conceded that the trial was vitiated. Now, therefore, the sole question is whether the accused should be set at liberty upon setting aside the conviction and sentence as has been done by the Supreme Court in Suk Das (supra) or to remit the case back to the Sessions Judge for retrial.

We have perused the nature of the allegations brought'' against the accused and its gravity. We feel inclined that there should be a fresh trial. Accordingly, we set aside the conviction and sentence and send down the records forthwith to the trial Court for fresh trial. Learned Judge shall appoint an experienced lawyer, who is competent to provide legal aid to the accused and conclude the trial within two months from the date of receipt of the records.

In the result, the appeal is allowed. The conviction and sentences are set aside and the case is remitted to the trial court for fresh trial in accordance with law.

Before parting with the records, we are tempted to extract what Lord Denning has said in "WHAT NEXT IN THE LAW".

To put it bluntly-the beneficiaries of legal aid Tall into two categories; fresh, the aroused person, whether guilty or not; second the legal profession. Some chambers have a dozen young barrister available to take briefs in small criminal cases. Each evening solicitors need a young barrister for this case or that. They ring up the barrister s clerk. He distributes the cases round to his young people.

There is a marked tendency to take very lightly the procedure for providing legal aid to the poor. The poor are mute. They have no media, no means to express their pang and agonies and, therefore, with impunity they are provided with assistance but perhaps "no legal assistance by competent lawyer". If it is the constitutional right of the poor to be provided with legal assistance, the assistance roust be genuine, real sod the best lawyers should be engaged, otherwise it might be said in future that their constitutional rights were trampled by the judiciary. We say "CAVEAT ACTOR". Let not posterity say that the poors were provided lip service or we shed crocodile tears in the name of legal aid.