)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 540 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? Yes 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? Yes 5. Whether it is to be circulated to the Civil Judge? To all Courts in Gujarat State. -------------------------------------------------------------- LABHU LAXMAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR BS SUPEHIA (appointed) advocate for appellant MR KP RAVAL & MS. AMI YAGNIK, APPs for Respondent No.1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE A.M.KAPADIA Date of decision: 11/12/98 ORAL JUDGEMENT (Per J.N. Bhatt, J.): Admit. Mr. K.P. Raval, learned A.P.P. appears on behalf of the respondent - State. Upon joint request and in view of the peculiar facts and circumstances, this matter is taken up today, for final disposal. It is, rightly, said that law without justice, is, useless and justice without law, is, meaningless. Are the law and justice distant neighbours? The concept and philosophy of legal aid, in general, and in defence of an accused, in a charge of crime, in particular, are the corner stones of the administration of justice, which are quintessence and important constellation of the 'RULE OF LAW', which is one of the basic structures of the Constitution of India, are, really, jettisoned on the altar of traditional, conservative, pedantic and uninformed of the social justice value, observed or not? Does the legal and judicial community and fraternity require to be sensitized in this behalf? are some of the significant but substantial problem-aspects which have surfaced in this appeal, and the factual scenario of which we, hereinafter, project and portrait, will be an eloquent testimony. The birth of this appeal has a nexus with an incident which, occurred, on 17.7.1997, in the early morning, at 6 a.m., when the appellant-original accused committed murder of his wife, Heena, as per prosecution case. The venue of the offence is residential house of the accused situated, at Vallbhipur, in Bhavnagar District. The accused, alongwith other members of the family and his wife, used to reside in the said house situated, at Vallbhipur, which included his parents and brother. The accused got married with deceased Heena, at Shahpur, and three sons were born out of the wedlock. The accused was engaged in diamond cutting and polishing work. Upon the complaint of prosecution witness Subhash Vakharia, before Vallbhipur Police, within a short time after the occurrence of the incident, offence came to be registered against the accused for murder and, thus, the investigation started. The complainant was informed by his nephew, Mahesh, about the incident in the early morning, at 6.30, that the accused was beating his wife, Heena, and children are shouting. He, therefore, went to the house of the accused. After taking key from one of the sons of the accused, the house was opened, whereas, the door on the other side of the house was open towards verandah. Bedroom was locked which was opened by him and he found Heena in a serious injured condition, profusely, bleeding and also a blood stained axe there. The prosecution has also ascribed the deep seated motive in the commission of the crime in question. In that, it has been alleged that the accused, husband of the deceased - Heena, had entertained an animus. He had also doubted her chastity. Deceased Heena, allegedly, was in illicit relationship with Patel Babubhai Kakadia, who was dealing in diamond business. That gentleman! used to call Heena, the wife of the accused, in the absence of accused and enjoyed illicit relationship. Because of these, accused, repeatedly, requested his wife to stop her attitude and improve her character but same ended in smoke and as a result of it, in the early morning of the day of the incident i.e., 17.7.1997, the deceased was done away with by her husband, with the help of an axe, inside the room, and, thereafter, bolting the room from inside, he ran away. Upon complaint having been lodged by the complainant Subhash, the investigation started. After the offence came to be registered vide C.R.No. 256/97 and having found, prima facie, case against the accused/appellant, he was charge-sheeted in the Magisterial Court, at Vallbhipur, from where it came to be committed to the Sessions Court, Bhavnagar, on 19.12.1997, and the charge was framed against the accused for the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short), to which he pleaded guilty. Even in reply to the question as to whether he would be willing to avail legal aid or not, at the time, of recording the preliminary statement, after the charge was read over, the accused, instead of replying to the pointed question, repeated the same plea of guilt. Nonetheless, the learned Sessions Judge, thought it expedient and necessary to direct the prosecution to prove the case unconcerned with the plea of guilt, being the case of capital charge, as a result of which, the prosecution placed reliance on 14 prosecution witnesses and 18 documentary - evidence to which reference, may be made, hereinafter, at an appropriate stage. It is quite evident from the record of the present case that the accused had not engaged any lawyer, privately, nor he was provided with legal aid by making appointment of an advocate in his defence. Not only that, despite the factum that the accused did not raise and make any cross or any question in the cross-examination, in the end of the examination-in-chief, of all the 14 witnesses, neither the Court exercised the powers of putting question under Section 165 of the Indian Evidence Act ('the Act' for short) nor made appointment of an advocate, even under the popular concept and scheme of an 'amicus-curiae'. In short, if one says that the trial, as such, went ex-parte and accused remained unrepresented and undefended resulting into serious prejudice to the defence and the right of an accused, then it, cannot, easily, be ruled out. Therefore, the main theme and the heart of the entire case on hand is, whether the doctrine of free, fair, reasonable and just process of trial has taken place or not in the aforesaid circumstances. Before we begin and commence to articulate the important aspects of processual justice, we are tempted to place on record our, painful but dutiful, following observations: "It is, rightly, said, this world has suffered much pain and cruelty from doing what we believe it to be right rather than from doing what we believe to be wrong". It is, really, very disappointing and disheartening to notice, that want of sensitization for the fundamental rights of the accused and in violation of constitutional mandates culminating into not only unintended impairment of the integrity of the defence but also into miscarriage of justice, even in the era when we have concluded 50 years of independence and when, more so, we are very close to the 21st century. One will have to admit after having even peeped into the scenario of this case that the sensitization to the best of the administration of justice, at its pyramid-bottom, is yet not, only, incomplete but insufficient and inefficient. We fail to understand, as to why, the learned Sessions Judge, who is a senior seasoned parson, after having chosen not to accept the plea of guilt, and, truly, in a correct and right spirit, allowed the trial on a capital charge of murder concluded, as if it was an undefended or ex-parte trial? We fail to satisfy our conscious that the approach adopted by the learned Sessions Judge in conducting, entertaining and adjudicating the trial of a capital charge of a poor, indigent, unsophisticated and rural illiterate, despite the fact that the legal aid is not only a statutory entitlement of an accused but it is elevated to the status of a fundamental right of the accused while interpreting the provisions of Article 21 of the Constitution of India read with Article 39-A in many decisions of the Honourable Apex Court. So is the distressing position in the case of assistance and services of the Additional Public Prosecutor, Bhavnagar. We have also failed to comprehend as to why the Additional Public Prosecutor, who belongs to a creed and chamber of "pro-bono-publico", failed to point out to the learned trial Court Judge and became an abetter in converting a, fruitful, legal battle into a futile and sterile proceeding. It was his obligation to assist the Court in seeing that substantial justice is done on merits and not to remain an eye witness of miscarriage of justice, failing in imparting and providing effective and efficient assistance to the Court. It is, really, very unfortunate and we cannot resist our temptation of reiterating that at the end of the, examination-in-chief, of, as many as, 14 witnesses, the trial Court has observed and has, resultantly, endorsed that there is no cross-examination by the accused. With the active participation and involvement with devotion, which is a cry of the 'pro-bono-publico', the distressing and disturbing episode of transforming the legal battle into a futile exercise instead of being fertile, culminating into ample prejudice to the accused and almost irreparable wound on the defence. It is, really, high time and right time to, fully, comprehend that all of us, belong to the administration of justice, strive in search of truth and justice. The processual justice can never be permitted to overtake statutory right, much less constitutional, and more so in the case of an accused, who is facing capital charge in a criminal trial. To see that justice is done after observing and/or providing free and fair justice and reasonable trial and opportunity to the accused, merely, because of formality having been performed to inquire from the accused whether he would like to avail the legal aid or not, is not the end. It is as such the commencement of the proceeding. Effective and efficient legal service to the needy and indigent persons, more so in case of criminal trial, to the accused persons asking the question in a perfunctory manner, without projecting and piloting him to the direction of the substantial legal assistance, is the relic of the past, whereas, the living force of the day is to appraise and utilise the concept of legal services in its utmost and fullest as an optimum utilization oriented purpose, so that, no accused suffers for want of efficient and sufficient service of free and competent legal services. We are also, per force, obliged to place on record that even denial to avail the offered legal assistance or service for the effective defence of an accused in a criminal trial, without understanding the spirit and letter of law and the right, could not be treated as a full-stop to the mandate given to the Court of law and only to proceed with trial, with examination-in-chief and lastly mentioning "no cross is offered by the accused" is improper. Of late, the concept of legal service has assumed higher and wider dimensions in our country, where, reportedly, and undoubtedly, no less than half the population of the highest and the biggest democratic country in the world, live below the poverty line. Most of them are residing in rural areas as this country has more than 5,39,000 villages, out of them, most of them are, totally, illiterate apart from being very indigent and forming a part of 34% poverty of the entire world and we can very well judge from the records that the appellant/ original accused belongs to the same fold or category of people in India. Could it be, in these set of circumstances and facts, considered by a mere asking about legal aid to the accused as an accomplishment or the fulfillment of the statutory provision and constitutional mandate with regard to the provisions of free, effective and competent legal aid? Unfortunately, the accused in his plea, at Ex.7, unmindfully and repeatedly, went on saying and raising plea of guilt even in reply to a pointed question about opting to have the services of legal aid to him, and in all probabilities, without understanding the tenor of the question, responded the same answer and reiterated the plea of guilt. In the context of the facts, the nature of the charge which is capital in the present case, the status of the accused, who belongs to a very poor-strata of society, it would have been a benign boast of the judiciary and a great triumph of the doctrine of provisions of free and competent legal aid, had the trial Court, mindfully, in its wisdom, comprehended that there was no any useful purpose of proceeding with the trial without providing free and competent legal services in the defence of the accused or at the best without making appointment of an 'amicus-curiae', or at least without asking questions to the important witnesses in whose testimony the link is shown to have been established, in the direction of the alleged complicity of the accused by exercising powers of Section 165 of the Act. This, manifestly and evidently, exhibits the insensitivity, if not inhumanity, not only to the doctrine of free and competent legal aid to the poor and needy accused persons charged with capital-charges, but also, to truly, appreciate, the juristic and doctrinaire behind the object of the legal services. Pursuant to the constitutional mandates, a specific provision came to be incorporated by the Parliament in its wisdom, in 1977, by incorporating an Article 39-A, as also the provisions of Article 51-A in our Constitution. Article 39-A, clearly, provides for a very valuable right of free and competent legal aid, as can be visualized from the definition which is, narrated, hereinbelow: "Article 39-A: 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." It would not be out of place to mention that Article 51-A provides fundamental duties which must be appreciated and followed so that underlying design and purpose of the provisions of Article 39-A can be, effectively, subserved. Needless to mention the jurisprudential celebrated aspect that a right of one is the duty of others and, vis-a-vis, and hence when the accused has a right of free and competent legal aid, it becomes the duty of the Court and the prosecutor to see that the spirit is, effectively, translated into reality. The psychological background or human nature has also an important role to play in the human relations and also proper enjoyment of human rights which includes statutory rights also. The Courts cannot, therefore, be oblivious to such psychological-factors in appreciating the version of the accused. When the accused was questioned by the trial Court while recording his plea as to whether he would like to avail the legal aid, the reply to this question given by the accused was that he is guilty. Ordinarily, a person having full understanding of the tenor and the term of the question, would not repeat that he is guilty upon a question being asked whether he would like to avail free legal aid when he has, already, stated in reply to first question in relation to the charge framed against him that he pleaded guilty. This aspect ought to have been taken into consideration by the trial Court. The trial Court failed to consider that there was no complete and proper healthy, mental condition, for the simple reason, that the answer was unwarranted. It is, in this context, the Courts ought to have considered the ideology, policies, customs, conversation, surroundings, invasiveness, hatred, envy, impure mind or impure ends, no confidence in truth and/or confidence in untruth, feeling of frustration, injustice, unclean heart, guilty mind, atheism, helplessness, excitement, non-endurance, hatred, belief in certain ideology are the various circumstances which influence human life. The Court, therefore, ought to have considered the context and the background accused was likely to be victim of while giving reply to second question in recording plea. No doubt, the trial Court has not founded the conviction on the plea of guilt but non-availability of free legal service, on account of misappreciation and misconception culminated into a wrong interpretation of the reply given by the accused, has, obviously, prejudiced his defence. Mere performing formality of asking question of legal aid, under Section 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 Section 304 of the Code, Section 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 Articles 14, 16, 19, 21, 39-A and 51-A. The principles of openness of judicial proceedings and free and fair trial to an accused, undoubtedly, operate as a check against injustice, vagueness, vagaries or caprices. They are aimed at building confidence of public in the judicial administration. All human rights derive from the dignity and worth in the human beings. Therefore, the human beings are the central subject of human rights and fundamental freedoms. It must be noted that all human beings are born free and equal in dignity and rights. That is what, precisely, is manifested in the Universal Declaration of Human-Rights and the Constitutional provisions enshrined in Chapter III and IV and the provisions of Legal Services Authorities Act and the Cr.P.C. Articles 3, 10 and 11 of the Universal Declaration of Human Rights adopted and proclaimed by General Assembly resolution 217A (III) of 10th December 1948 and recognized and ratified by India, are as under: 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. Article 11. 1. Everyone charged with a penal offence has the right to be presumed, innocent until proved guilty according to law in a public trial, at which he has had all the guarantees necessary for his defence. The human rights of the accused, as well as, victims, frequently, are stated in the constitution and in various statutes. It would be appropriate to mention the list of rights of the accused persons highlighted in "Human Rights international challenges" by Dr. S. Subramanian: 1. Protection against arbitrary or unlawful arrest (Article 22 of the Constitution and Section 41, 55 and 151 Cr.P.C.); 2. Protection against arbitrary or unlawful searches (Sections 93, 94, 97, 100 (4) to (81) and 165 Cr.P.C.); 3. Protection against "Double Jeopardy" (Article 21 (2) of the Constitution and Section 400 Cr.P.C.); 4. Protection against conviction or enhanced punishment under ex-post facto law (Article 20 (1) of the Constitution); 5. Protection against arbitrary or illegal detention in custody (Article 22 of the Constitution and Sections 56, 57 and 76 Cr.P.C..); 6. Right to be informed of the grounds, immediately after the arrest (Article 71 (1) of the Constitution and Section 50 Cr.P.C., as also Sections 55 and 75 Cr.P.C.); 7. Right of the arrested person not to be subjected to unnecessary restraint (Section 49 Cr.P.C.); 8. Right to consult a lawyer of his own choice (Article 22 (1) of the Constitution and Section 303 Cr.P.C.); 9. Right to be produced before a magistrate within 24 hours of his arrest (Article 22 (1) of the Constitution and Sections 57 and 76 Cr.P.C.); 10. Right to be released on bail, if arrested (Sections 436, 437 and 439 Cr.P.C., also Sections 50 (20 and 167 Cr.P.C.); 11. Right not to be a witness against himself (Article 20 (3) of the Constitution); 12. Right to get copies of the documents and statements of witnesses on which the prosecution relies (Section 173 (7), 207, 208 and 238 Cr.P.C.); 13. Right to have the benefit of the presumption of innocence till guilt is proved beyond reasonable doubt (Sections 101-104 Evidence Act); 14. Right to insist that evidence be recorded in his presence except in some special circumstances (Section 273 Cr.P.C., also Section 317 Cr.P.C.); 15. Right to have due notice of the charges (Section 218, 228 (2), 240 (2), etc., of Cr.P.C.); 16. Right to test the evidence by cross-examination (Section 138 Evidence Act); 17. Right to have an opportunity for explaining the circumstances appearing in evidence against him at the trial (Section 313 Cr.P.C.); 18. Right to have himself medically examined for evidence to disprove the commission of offence by him or for establishing commission of offence against his body by any other person (Section 54 Cr.P.C.); 19. Right to produce defence witnesses (Section 243 Cr.P.C.); 20. Right to be tried by an independent and impartial judge (The Scheme of Separation of Judiciary as envisaged in Cr.P.C., also Sections 479, 327, 191, etc., of Cr.P.C.); 21. Right to submit written arguments at conclusion of the trial in addition to oral submission (Section 314 Cr.P.C.); 22. Right to be heard about the sentence upon conviction (Section 235 (2) and 248 (2) Cr.P.C.); 23. Right to fair and speedy investigation and trial (Section 309 Cr.P.C.); 24. Right to appeal in case of conviction (Sections 351, 374, 379, 380 Cr.P.C., and Articles 132 (1), 134 (1) and 136 (1) of the Constitution); 25. Right not to be imprisoned upon conviction in certain circumstances (Section 360 Cr.P.C., and Section 6 of the Probation of Offenders Act); 26. Right to restrain police from intrusion on his privacy (Article 31 of the Constitution); 27. Right of release of a convicted person on bail pending appeal (Section 380 Cr.P.C.); 28. Right to get copy of the judgment when sentenced to imprisonment (Section 363 Cr.P.C.). It would be also pertinent to mention, the scintillating observations and directions of the Honourable Apex Court in paragaphs 41, 42 and 43 in the judgment in All India Judges Association v. Union of India and others, (1992) 1 SCC 119: "41. We are alive to the fact that our directions involve a burden on the State exchequer. Perhaps some justification as to why these expenses should not be grudged must, now, be indicated. Professor Pannick in his book entitled Judges has observed: "Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid; make decisions." He further added: "Judges are mere mortals but they are asked to perform a function that is utterly divine." Professor Harold Laski once wrote to Justice Oliver Holmes that "he wished that people could be persuaded to realise that judge are human beings; it would be a real help to jurisprudence". 42. The trial Judge is the kingpin in the hierarchial system of administration of justice. He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality, knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court's functioning successful. 43. Krishna Iyer, J. described the scene very graphically thus: "Law is a means to