IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 921 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES -------------------------------------------------------------- DINESHBHAI DHEMENRAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KR RAVAL for Petitioner MR KP RAVAL, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE J.R.VORA Date of decision: 31/07/2000 ORAL JUDGEMENT(Per J.N.Bhatt, J.) 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 section 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.3/98, whereby, the accused came to be convicted for having committed offence punishable under section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substance Act, 1985 (for short NDPS 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 RI 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 NDPS Act, which carries minimum sentence of ten years and minimum fine of Rs.1 lac under section 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 NDPS Act. That many such innocent and indigent and underprivileged 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 and 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 section 20(b)(ii) of the NDPS Act, and also without exercising the discretion of appointing an 'amicus curiae' or powers under section 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 proposition laid down by the Hon'ble Supreme Court in "Tyron Nazareth v. State of Goa", 1994 Supp (3) SCC 321 decided, on October 26, 1993. It was submitted on behalf of the appellant-accused that in this decision, the accused came to be convicted without giving him free Legal Aid. No assistance was provided of a lawyer before the trial in a case under N.D.P.S. Act and the accused was convicted and sentenced to undergo minimum 10 years rigourous imprisonment and a minimum fine of Rs.One lac. Similar is the fact-situation in the appeal, on hand. In fairness, this submission is not disputed by the learned Additional Public Prosecutor appearing for the respondent State. 7. In Tyron Nazareth's case (supra), the Hon'ble Apex Court following the decision of Supreme Court in "Khatri-II v. State of Bihar" (1981) 1 SCC 627 and "Sukhdas v. Union Territory of Arunachal Pradesh" (1986) 2 SCC 401, held that convicted appellant was not assisted by any lawyer and perhaps, he was not aware of the fact that the minimum sentence provided under the statute was 10 years' imprisonment and a fine of Rs.One lac. Therefore, the Supreme Court, in the circumstances of the matter, had set aside the conviction and case was remanded for 'de novo' trial. It was further held that the appellant, if not represented by a lawyer, may make a request to the Court to provide him a lawyer under Sec.304 of Cr.P.C. or under any other Legal Aid Scheme and the Court may proceed with the trial afresh after recording a plea on the charges. The appeal was, therefore, allowed. The order of conviction and sentence recorded by the Special Court and confirmed by the High Court were set aside and a 'de novo' trial was ordered. The ratio propounded, in this case, is, squarely, attracted to the fact-situation of the appeal on hand. It appears that this decision was not brought to the notice of the Trial Court. It has, therefore, resulted into miscarriage of justice. 8. Similarly, in Rishinandan Pandit v. State of Bihar, Hon'ble Apex Court (2000) SCC (Cri.) 21 allowed the appeal of the appellants. Interpreting the provisions of section 386, 374, 303, 304 and 162 of the Cr.P.C. and the disposal of appeal by the High Court on merits, in absence of accused-appellant's Counsel and upholding conviction under Sec.395 and sentence of 10 years of rigourous imprisonment, came to be quashed. It was held that in view of the large number of convicts (12 in the case) and the severity of the sentence, it was advisable for the High Court to appoint an "amicus curiae" in such a case. Omission to do so, was held bad. Procedural flaws might have been averted if a Counsel was appointed to argue for the appellants. 9. All the 12 appellants were convicted by the Sessions Court under section 395 of I.P. Code and sentenced to rigourous imprisonment for 10 years each. On the date of hearing of their appeal before the High Court, their Counsel did not turn up, and, therefore, the High Court heard the Counsel for the State alone and dismissed the appeal on merits. The Supreme Court allowed the appeal. It was held that, when the Counsel engaged by the criminals in the Criminal Appeal, does not turn up, there is no obligation on the Court of Appeal to wait for him or even to adjourn the case awaiting his presence. However, if the Counsel is absent, there is nothing in law, which precludes the Court of Appeal from appointing another Counsel, at the cost of the State, to assist the Court. It is a matter of prudence that the Court may, in an appropriate case, appoint a Counsel, at the State expenses, to argue for the case of the accused. Of course, it was for the Court to determine on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals, which can be disposed on their own by the Counsels, if they put forth the favourable features for the accused. But, if the sentence imposed by the Trial Court, impugned in the appeal is of substantial range, it is advisable to seek the assistance of a legal talent. 10. On the facts side of the said case, the Hon'ble Supreme Court was pleased to hold that there was miscarriage of justice as the High Court proceeded to decide the appeal unaided by the arguments of an Advocate or an "amicus curiae". The stake involved in the appeal for the large number of convicted persons is, obviously, very high, particularly, in view of the sentence or rigourous imprisonment imposed on each of them. It is, in this context, it was observed that any supercilious dealing of the case will be at the risk of serious miscarriage of justice. The matter was, therefore, remitted to the High Court for disposal of appeal afresh. Upon taking into consideration the facts of that case, the Hon'ble Supreme Court directed the Hon'ble High Court that in case no Counsel for the accused turns up, it should appoint an Advocate at the State's cost to argue for the accused-appellants. The Hon'ble Supreme Court relied on its own decision in "Banesingh v. State of UP", (1996) 4 SCC 720. 11. It becomes, therefore, clear that when the charge is serious and the accused has been unaided, there is likelihood of miscarriage of justice and, therefore, it is necessary for the Court to see that the accused is properly represented. So is the factual situation in the present case. In fact, aforesaid two decisions of the Hon'ble Supreme Court are sufficient enough to allow the appeal of the accused, who could not be provided legal aid at the cost of the State. Even, no doctrine of 'amicus curiae' was invoked. 12. The accused, till properly convicted, is presumed to be the innocent, and he is required to be proved guilty beyond reasonable doubt. It is in this context the question arises: "CAN WE, BY A PROPRIETY CONDEMNATION, DENY THE ACCUSED THE FREE LEGAL AID, WHICH LIES IN CASE PROVED, THE CONDEMNATION OF CHARGE WAS FALSE AND THAT HE IS INVERTED OF THAT CONDEMNATION?" 13. The whole basis of free and competent Legal Aid seems to rule out any of these considerations. The object is to ensure equality before the law by ensuring that those who cannot afford legal representation do not suffer because of their mere indigence or illiteracy or and disability that is a criteria. None else than Article 39-A is 'LOADSTAR' and it speaks of only economic and other disabilities as deciding factors. What is, of course, very necessary is that only those, who are really indigent, make use of free Legal Aid facility. A means and resources statement on oath, if necessary, can be required to be made before the Magistrate and accordingly, if he falls below the pre-determined poverty line, he is to be provided free Legal Aid automatically. That is not to rule out functioning of Legal Aid Boards or Authorities or involvement of Law Students and Law Schools in the Legal Aid. It must be remembered that the whole tenure of law developments, since Menaka Gandhi's case, does not support the carving out of any exception on any ground for providing free Legal Aid to the indigent, the illiterate and the ignorant and such Legal Aid, being a constitutional directive, is an end in itself and not the means to any other goal. This proposition was very well laid down and expounded by the Hon'ble Apex Court in Khatri (II) case (supra). 14. The combined and conjoint reading of the provisions of Art.22(1) of the Constitution, Sec.304 of Cr.P.C. and the provisions of Art.39-A of the Constitution and the provisions of Legal Services Authorities Act, 1987, the right of accused to enjoy the services of an Advocate or a Counsel in a criminal case is unfettered and unqualified. It is not restricted to a particular kind or classes of offences. Most of the countries in the world have made it a constitutional right to have the assistance of a lawyer or a Counsel in criminal proceedings. Under the Sixth Amendment of United States' constitution, it is provided that any of criminal prosecutions, the accused shall enjoy the right of Counsel. In short, it can very well be said that no proposition is more, clearly, established than that the person cannot be condemned without being heard. The Supreme Court of the United States in the famous case of Gideon, held that : "This amendment provision, that in criminal prosecutions, the accused shall enjoy the right to have the assistance of a Counsel for his defence, was, equally, applicable to the State by reason of Fourteenth Amendment." 15. The right to have Counsel by the accused has been considered so fundamental that many other countries have incorporated it in the constitution or the Bill of Rights. Under Sec.2(c)(ii) of the Canadian Bill of Rights, it is clearly provided that :- "NO LAW AMENDED SHALL BE SO CONSTRUED OR BE APPLIED SO AS TO DEPRIVE ASSISTANCE TO A PERSON WHO HAS BEEN ARRESTED OR DETAINED AND INSTRUCT A COUNSEL WITHOUT DELAY." 16. The Japanese constitution and the International Convenant on Civil and Political Rights are instances, where Right to Counsel is recognised. No doubt, in England, there is no such right in the Common Law, but instruments like "Poor Persons' Defence Act, 1930" and "The Legal Aid and Advice Act" provide Legal Aid to poor at public expenses. 17. In India, Article 22(1) of the Constitution, expressly, provides that : "No persons, who is arrested, shall be detained in custody, without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied of the right to consult and to be defended by a legal practitioner of his choice." Long before the Constitution, even in the Old Criminal Procedure Code, under Sec.340, it had been provided that: "ANY PERSON, ACCUSED OF AN OFFENCE BEFORE THE CRIMINAL COURT OR AGAINST WHOM PROCEEDINGS ARE INSTITUTED, UNDER THIS CODE, OR ANY SUCH CODE, MAY OF RIGHT, BE DEFENDED BY A PLEADER." 18. The emphasis is on "any person accused of an offence in a criminal case is entitled to be defended, as of right, by an Advocate". Sec.303 of the new Criminal Procedure Code, 1973, also, confers "a right on a person, accused of an offence before the Criminal Court or against whom proceedings are instituted under this Code, to be defended by a pleader of his choice." 19. Obviously, this right in section 304 does not include a right to be provided with a lawyer by the State. However, Sec.304 of Cr.P.C., provides that when in the trial and more so in trials before the Court of Session, the accused is not represented by a pleader or an Advocate and when it appears to the Court that the accused has not sufficient means to engage an Advocate, the Court shall assign a pleader or an Advocate for his defence at the expenses of the State. Under Sec.304(iii), the State Government, may, by notification, direct that the provisions of sub-section (i) will apply to any class of trials before other Courts in the State. 20. Though section 304 was, newly, introduced in 1973, as there was no provision in the old Code making it obligatory on the part of the Court in a Sessions case, to assign a pleader for the defence of the accused at the expenses of the State, many High Courts issued circulars and orders, and incorporated rules in the Criminal Rules of Practice providing for assignment of an advocate for the defence of an accused in Sessions Trials and other cases of serious nature in consonance with the constitutional mandate and Fundamental Human Rights. 21. The combined reading of the provisions of Articles 14, 21, 22(1) 39-A and the provisions of Section 304 of the Cr. P.C. and the provisions of the Legal Services Authorities Act, 1987, in particular, Sec. 12, thereof, providing criteria for giving legal services, it is not the type of the charge or the nature of the offence committed, but the disability of the accused on account of indigence, illiteracy or any other disability of the accused to entitle to free Legal Services at the cost of the State. 22. The whole basis of free Legal Aid and constitutional mandate in Articles 14, 21, 22(1) and 39-A coupled with the provisions of the Legal Services Authorities Act, 1987, seem to rule out any particular nature of offence or type of charge. The design and desideratum is to ensure equality before the law by ensuring that those who cannot afford legal representation do not suffer merely because of their indigence, incapacity or illiteracy or any disability. That is the only criteria and no other yardstick is devised or formulated in the provisions. 23. Truly speaking, Article 39-A is the "Guiding-Star" and it speaks only of "economic and other disabilities" as determined and decided, guiding and governing factors. What is, of course, very significant is that only those who are, really, ignorant and indigent make use of free Legal Aid Scheme and could take benefit. A means and resource statement on oath, may be required to be made before the Magistrate as a formality and accordingly, if he falls below the statutory poverty line, he be provided free Legal Aid automatically. However, really speaking, irrespective of economic or any other disability, to ensure fair, free and impartial trial, the accused person, in any case, in any trial, unable to procure and engage the services of a private lawyer, by economic disability or by any other reason, irrespective of the nature of the charge or the indictment, he shall have to be provided with Legal aid in defence. 24. More so, in a case, when minimum sentence of 10 years and a minimum imposition of fine of big amount like Rs.One lakh is prescribed, must be provided with legal representation. It is the duty of the Court to consider as to whether the accused person has understood the real question of charge and whether he is able to reply correctly after knowing the colour of the question. Sometimes, in a country like India, by one or the other social or psychological reasons, accused persons, unmindfully, inadvertently, without knowing the consequences, give vague and evasive replies, which, at times, have been construed by the Magistracy or Criminal courts that the ceremonial statutory process is performed and that it all ! 25. At this point of time, it is incumbent upon the Court to be careful, cautious and circumspect and see as to whether the accused has, in reality, understood the tenor and the context of the question and as to whether, he has given the reply with knowledge, intention and understanding or not. The Court has not to construe, merely by asking a question as to whether the accused required Legal Aid or not, as a closed chapter and compliance of the provisions of law. At times, it may happen, then, also, it is the duty of the Court to consider as to whether in a serious, complex and capital charge or matter, the services of an 'amicus curiae' should be requisitioned or not ? It is, also, necessary to examine as to whether the powers under Sec.165 of the Evidence Act should be, successfully, utilised and employed in such trials, where accused has, without understanding the seriousness of the question, declined to accept the services of an Advocate at the cost of the Government. 26. 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. 27. It is in this context, even at the cost of repetition, we would like to refer to the decisions in "Tyron Nazareth v. State of Goa" (supra) and "Rishinandan Pandit's" (supra) cases, which are the recent decisions of the Hon'ble Apex Court and the views which we are inclined to take at this juncture, are very much reinforced by the said decisions of the Hon'ble Apex Court. 28. Apart from the provisions incorporated in section 304 of the Code of Criminal Procedure, 1973, right to legal aid, in a criminal trial is a fundamental human right. The Founding Fathers of the Constitution of India, have right from the preamble, taken a positive approach of doctrine of philosophy of Equal Justice which becomes apparent on the plain perusal of the preamble of the Constitution. Justice is not only in court of law, but justice in economic and politics. This preambular promise is further strengthened by the constitutional provisions in Articles 14, 19, 21, 32, 39-A, 51-A and 226 of the Constitution of India. 29. Article 39-A of the Constitution of India, has, again, amplified and magnified the concept and philosophy of free, fair and full justice, which reads as under: "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." A plain perusal of the aforesaid provisions, evidently, leads us to believe that it is an obligation of the State Authority to provide free and competent legal aid to the persons, who are, unable to procure or engage services of a private lawyer on account of financial or any other disability. Fairness in trial of a person, who is facing an indictment is a basic feature of criminal jurisprudence. That is how, provisions are, specifically, incorporated in section 304 of the Cr.P.C., which prescribe that legal aid shall be provided to the accused, in certain cases, at the State expenses. Section 304 reads as under: "304. Legal Aid to accused at State expense in certain cases -- (1) Where, in a trial before the court of session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State. (2) The High Court may, with the previous approval of the State Government, make rules providing for -- (a) the mode of selecting pleaders for defence under sub-section (1); (b) the facilities to be allowed to such pleaders by the courts; (c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1), (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and ((2) shall apply in relation to any class