Jai Shankar @ Pappu vs State

Mukul Mudgal, J.—On 24th April, 2007 this Court had discussed the position of law relating to the supply of copy of the judgment and other documents to the convicted accused in terms of Section 363 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"). The relevant position in law is to be found inter alia in the judgment of the Hon''ble Supreme Court in Suk Das Vs. Union Territory of Arunachal Pradesh, which guarantees the legal aid at State expense to indigent persons. The earlier practice relating to supply of only the judgment to a convict was leading to a situation where the preparation of appeal was hindered because of non-availability of all the record with the accused who was represented during the trial by an amicus curiae or Legal Aid Cell nominated advocate. The liberty of a person is precious and as guaranteed by our Constitution and a person cannot be deprived of it unless such deprivation is in accordance with law. Not only does an accused have a right to defend himself but the right to defence also includes the right to effective and meaningful defence at the trial and indeed the appeal. Accordingly, this Court is considering the effect of Section 363 of the Code and the right of the accused on conviction to get the relevant documents. A perusal of Section 363 Cr.P.C. shows that the poor and indigent accused should have full access to the entire record of the trial court in order to prefer and pursue meaningful and effective appeal. Section 363 of the Code reads as follows: 363. Copy of judgment to be given to the accused and other persons-"(1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost.

(2) On the application of the accused, a certified copy of the judgment, or when he so desires, a translation in his own language if practicable or in the language of the Court, shall be given to him without delay, and such copy shall, in every case where the judgment is appealable by the accused be given free of cost.

Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation to an order u/s 117 as they apply in relation to a judgment which is appealable by the accused.

(4) When the accused is sentenced to death by any Court and an appeal lies from such judgment as of right, the Court shall inform him of the period within which, if he wishes to appeal his appeal should be preferred.

(5) Save as otherwise provided in sub section (2) any person affected by a judgment or order passed by a Criminal Court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgment or order of any deposition or other part of the record:

Provided that the Court may, if it thinks fit for some special reason, give it to him free of cost.

Although it was pointed that while the judgment against the accused is to be given to him/her upon conviction free of cost nevertheless Sub-section (5) of Section 363 Cr.P.C also indicates that judgment or orders, any deposition or any part of record can be given on payment of prescribed charges and court fee and for some special reason court may give it to him free of cost also. We are of the view that since Article 21 of the Constitution providing free legal aid is mandated, the fact that an accused is represented through legal aid should be a sufficient special reason as indicated in Section 363(5) Cr.P.C.

Thus the requirement of provision of a full papers/records to an indigent accused who needs legal aid has been spelt out by the Hon''ble Supreme Court in Supreme Court Legal Services Committee Vs. U.O.I. and Others, . The Apex Court allowed the prayer for directions as sought in the writ petition in the above said case which reads as follows:

(iii) that the prisoner will be informed by the Superintendent of every Jail about the availability of legal aid in the High Courts and the Supreme Court and be asked whether he is desirous of exercising his constitutional right to avail of legal aid.

(iv) that every Jail will have to provide at the cost of the State Exchequer cop of Vakalatnama, proforma Affidavit in the form as required by the respective High Courts and the Supreme Court for being signed by the prisoner immediately upon expressing his intention to avail of legal aid;

(v) that the Superintendent of the Jail will ensure that complete paper/records of the case are sent to the Supreme Court Legal Aid Committee or the High Court. Legal Aid Committee along with the signed Vakalatnama and Affidavit of the prisoner forthwith by registered post at the cost of State Exchequer and that if there is any delay in forwarding the papers, the reasons for forwarding the papers belatedly will accompany such papers.

The above binding mandate of the law laid down by the Hon''ble Supreme Court contains the following two significant guidelines applicable to the Supreme Court Legal Aid Committee and the High Court Legal Aid Committee (now known as the High Court Legal Services Committee)

Where an indigent accused cannot defend himself effectively and adequately, the inbuilt right to equality, life and liberty envisaged under Article 14 and 21 of the Constitution becomes instrumental. Further, Article 39-A makes it obligatory on the State to ensure that legal system promotes justice on the basis of equal opportunity and works towards providing effective legal aid in order to ensure that no citizen is denied opportunities of securing justice by reason of economic or other disabilities. Articles 14, 21 and 39A are reproduced below: 14: Equality before law.

The State shall not deny to any person equality before the law or equal protection of law within the territories of India.

Protection of life and personal liberty.

No person shall be deprived of his life or personal liberty except according to procedure established by law.

39A. Equal justice and free legal aid.

The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

These constitutional provisions are echoed in the widely recognized Universal Declaration of Human Rights (hereinafter referred to as "UDHR") norms, specially Article 3 and Article 10 which read as follows:

Article 3.

Everyone has the right to life, liberty and security of person.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , the Hon''ble Supreme Court emphasized upon providing legal aid to the undertrials. Referring to both Articles 21 and 39-A the Court pointed out that while Article 39-A emphasized that free legal service cannot be segregated from ''reasonable, fair and just'' procedure, the right to free legal services is implicit in guarantee of Article 21. Further, these constitutional objective cannot be achieved if a financial deprivation results in non effective legal representation of the indigent leading to deprivation of liberty. The Hon''ble Supreme Court held that:

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, provided of course the accused persons does not object to the provision of such lawyer.

The Hon''ble Supreme Court further held that:

Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventually.

Thus, the Hon''ble Supreme Court in its directions given in March 1979 in Hussainara Khatun made it clear that the right to free legal services is inalienable from the reasonable, just and fair procedure available under Article 21 for an accused person.

While on one hand, the Hussainara order highlighted the inability of the criminal justice system in relation to the indigent undertrials, on the other hand it had a positive impact on the rights of undertrials belonging the impoverished sections of the society. The court directed in Khatri II that every accused not represented for the reason of his indigency was entitled to free, legal services at the cost of the state.

In Suk Das''s case the Supreme Court dwelt upon the factor of non availing and non application for legal aid made by appellant though it was the appellant''s right to be provided with free legal assistance. It observed:

it would.........make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.

Since Suk Das, it has been taken as settled law that free legal assistance at the cost of the state has to be offered to person accused of an offence which may jeopardize his life or personal liberty whether or not he seeks it. Further, the Court reaffirmed that "this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by law."

Thus, Suk Das not only guaranteed the legal aid at State expense to indigent person but also led to the consensus that a criminal trial would be vitiated if an accused went effectively unrepresented by a lawyer in it for want of financial resources.

Earlier in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, , the Hon''ble Supreme Court had not only held that every action which "stultifies" a right to appeal in its being fruitful is unconstitutional but also mandated that "the provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service."

The Court further held:

If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal for want of legal assistance, there is implicit in the court under article 142 read with articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice.

In Sunil Batra Vs. Delhi Administration and Others etc., , it was directed that:

Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need be, to challenge the decision in court - "in cases where they are too poor to secure on their own. If lawyer''s services are not given, the decisional process becomes unfair and unreasonable, especially because the rule of law perishes for a disabled prisoner if counsel is unapproachable and beyond purchase. By and large, prisoners are poor, lacking legal literacy, under the trembling control of the jailor, at his mercy as it were, and unable to meet relations of friends to take legal action. Where a remedy is all but dead the right lives only in print. Article 39A is relevant in this context. Article 19 will be violated in such a case and the process will be unreasonable. Article 21 will be infringed since the procedure is unfair and arbitrary. In Maneka Gandhi the rule has been stated beyond mistake.

The position in regard to the right of access to justice of convicts came to be summed up in Law Poverty and Legal Aid to Criminal Justice System (S. Muralidhar):

(a) -----------X-----------

(b) Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so require, assign competent counsel for the prisoner''s defence.

(c) Courts shall forthwith furnish a free transcript of the judgment when sentencing an accused to imprisonment. Where the convict seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the jail administration. A violation of this requirement would be unconstitutional.

(d) Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need be, to challenge the decision in court - "in cases where they are too poor to secure legal assistance on their own. Prisoners can bring forth PIL to seek law and institutional reform.

(e) The need for legal services of convicts continues even beyond the rejection of their appeal by the courts. They are entitled to legal assistance in the matter of preferring review petitions, and seeking remissions, pardon and parole.

(f) -----------X-----------

A meeting was convened as directed in the order dated 10th May, 2007 between District & Sessions Judge and other Judges as well as Law Secretary and Standing Counsel of Delhi Government and the following minutes were recorded in the meeting.

It was pointed out by all present that accused is supplied with copy of police report, FIR recorded u/Section 154 Cr.P.C., copies of statements of witnesses recorded u/Section 161 Cr.P.C. to whom the prosecution proposes to examine as its witnesses and documents annexed with the police report, on the appearance of accused before the Magistrate. Accused is also provided with copy of judgment & order of sentence, free of cost, on being convicted by the court concerned.

In order to overcome difficulty being faced by the counsel for accused who are nominated by Delhi Legal Services Authority that they are not fully equipped with record of trial court when they appear before High Court, following consensus was arrived at by discussion i.e. the accused be supplied with copy of the charge, exhibited documents of prosecution as well defence, copies of statement of witnesses of prosecution as well as defence and statement of accused u/Section 313 Cr.P.C., by the trial Court concerned, when the matter is decided. An order to this effect can be issued by the District & Sessions Judge, on administrative side, for supply of aforesaid documents/material free of cost to the accused who is represented by counsel for DLSA. Signatures of accused of having received the aforesaid copies be taken on record by the Court concerned. Reader of the court can certify the document supplied as true copies. Existing photocopiers are not sufficient to cope up with aforesaid work. More photocopy machines will be required. It will be appropriate if photocopy machine is shared by two criminal courts.

(emphasis added)

Thereafter it has been determined that at least 20 photo copiers are required to fulfill the constitutional obligation under Article 21 of the Constitution of India as well as Section 363 of the Cr. P. C. This would provide adequate access to justice to exercise an indigent person''s right guaranteed under the Constitution of India. Consequently, 20 photo copiers were required to be installed on or before 1st August, 2007 by the State Government in the concerned Session Courts. We are happy to note the statement of the learned counsel for the State that the Delhi Government is alive to its Constitutional obligation and has already sanctioned the requisite number of photo copiers. We also make it clear that as per the position of law laid down by the Hon''ble Supreme Court in Supreme Court Legal Services Committee Vs. U.O.I. and Others, the Delhi High Court Legal Services Committee is duty bound to collect the record as directed above and furnish it to the indigent convicted accused or his legal aid lawyer for preparation of an effective appeal by the accused.