RAJOO @ RAMAKANTversusSTATE OF MADHYA PRADESH

                       [2012] 6 S.C.R. 1182


A                     RAJOO @ RAMAKANT
                                v.
                 STATE OF MADHYA PRADESH
                (Criminal Appeal No. 140 of 2008)
                         AUGUST 9, 2012
B
          [A.K. PATNAIK AND MADAN B. LOKUR, JJ.]

       Constitution of India, 1950 - Article 39-A!Legal Services
  Authorities Act, 1987 - ss. 12 and 13 - Right to legal
C representation - Of the accused - At appellate stage -
  Entitlement - Held: Article 39-A as well as the Act provides
  for free legal aid - An eligible person is entitled to legal
  services at any stage of the proceedings either trial or
  appellate - In the instant case, the accused was not provided
D legal representation and the High Court failed to enquire as
  to whether the accused required legal assistance - Matter
  required (o be re-heard by High Court after providing the
  accused opportunity of obtaining legal representation -
  Hence, remitted to High Court for fresh hearing.
E
         The question which was determined in the present
    appeal was whether the appellant-accused was
    entitled,as a matter of right,to legal representation in the
    High Court.

F       Disposing of the appeal, and remitting the matter to
    High Court, the Court

         HELD: 1. By the 42nd Amendment to the
    Constitution, effected in 1977, Article 39-A was inserted.
G   This Article provides for free legal aid by suitable
    legislation or schemes or in any other manner, to ensure
    that opportunities for securing justice are not denied to
    any citizen by reason of economic or other disabilities.
    Subsequently, with the intention of providing free legal
H                              1182
     RAJOO@ RAMAKANT v. STATE OF MADHYA                   1183
                 PRADESH
aid, the Central Government resolved (on 26th                     A
September, 1980) and appointed the "Committee for
Implementing the. Legal Aid Schemes". This committee
was to monitor and implement legal aid programs on a
uniform basis throughout the country in fulfillment of the
constitutional mandate. Eventually the Legal Services             B
Authorities Act, 1987 was enacted. The Act provides, inter
alia for the constitution of a National Legal Services
Authority, a Supreme Court Legal Services Committee,
State Legal Services Authorities as well as Taluk Legal
Services Committees. Section 12 of the Act lays down the          c
criteria for providing legal services. It provides, inter alia,
that every person who has to file or defend a case shall
be entitled to legal services, if he or she is in custody.
Section 13 of the Act provides that persons meeting the
criteria laid down in Section 12 of the Act will be entitled      D
to legal services provided the concerned authority is
satisfied that such person has a prima facie case to
prosecute or defend. (Paras 5, 6,7 and 8] (1185-G-H; 1186-
A, D-G]
       2. Neither the· Constitution nor the Legal Services        E
  Authorities Act makes any distinction between a trial and
  an appeal for the purposes of providing free legal aid to
  an accused or a person in custody. An eligible person is
- entitled to legal services at any stage of the proceedings
  which he or she is prosecuting or defending. The                F
  Supreme Court Legal Services Committee provides legal
  assistance to eligible persons in this Court. This makes
  it abundantly clear that legal services shall be provided
  to an eligible person at all stages of the proceedings, trial
  as well as appellate. It is also important to note that in      G
  view of the constitutional mandate of Article 39-A, legal
  services or legal aid is provided to an eligible person free
  of cost. [Paras 21 and 9] (1191-A; 1187-A-C]
     3. The High Court was under an obligation to enquire
 from the appellant-accused whether he required legal             H
    1184    SUPREME COURT REPORTS               [2012) 6 S.C.R.

A   assistance and if he did, it should have been provided to
    him at State expense. However, since the record of the
    case does not indicate any such endeavour having been
    made by the High Court, this case ought to be re-heard
    by the High Court after providing the appellant-accused
~   an opportunity of obtaining legal representation. The
    case records are remitted back to the High Court for a
    fresh hearing. [Paras 21 and 22] [1191-8-D]

       Hussainara Khatoon (IV) v. Home Secretary, State of
  Bihar (1980) 1SCC 98: 1979 (3) SCR 532; Khatri(//) v. State
C of Bihar (1981) 1 SCC 627: 1981 (2) SCR 408; Suk Das v.
  Union Territory of Arunachal Pradesh (1986) 2 SCC 401:
  1986 (1) SCR 590- relied on.

     Clark v. Registrar of the Manukau District Court (2012)
D NZCA 193;Condon v. R (2006) NZSC 62; Dietrich v. R 1992
  HCA 57 - referred to.
                        Case Law Reference:
        1979 (3) SCR 532          Relied on           Para 11
E       1981 (2) SCR 408          Relied on.          Para 12
        1986 (1) SCR 590          Relied on           Para 13
        (2012) NZCA 193           Referred to         Para 17 -
F       (2006) NZSC 62            Referred to         Para 18
        1992 HCA 57               Referred to         Para 19
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 140 of 2008.
G
         From the Judgment & Order dated 5.9.2006 of the High
    Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
    3 of 1991.

H
    RAJOO @ RAMAKANT v. STATE OF MADHYA                      1185
                PRADESH

     Tara Chandra Sharma·, Uma Datta, Neelam S_harma for              A
the Appellant.

    Vibha Datta Makhija for the Respondent.

    The Judgment of the Court was delivered by
                                                                      B
     MADAN B. LOKUR, J. After hearing arguments in this
appeal, we had reserved judgment. While preparing the
judgment, it was noticed that the appellant (Rajoo) was not
represented in the High Court.

      The issue that arises, therefore, is whether Rajoo was          C
entitled, as a matter of right, to legal representation in the High
Court. Our answer is in the affirmative.

The facts:
                                                                      D .
     On 06.12.1998, seven persons including Rajoo are alleged
to have gang-raped 'G'. The Trial Court convicted all of them
for the offence and sentenced each of them to 10 years
rigorous imprisonment and a fine of Rs. 500/-. In default thereof
they were required to undergo rigorous imprisonment for a             E
further period of 3 months.

     Appeals were filed by all the convicted persons before the
High Court. By its judgment and order dated 05.09.2006, the
High Court set aside the conviction in respect of five of the
convicts, but upheld the conviction in respect of Rajoo and Vijay.    F
We have been informed that Vijay has accepted the judgment
of the High Court. Only Rajoo has appealed against his
conviction and sentence. Be{ore us Rajoo was represented by
learned counsel who took us through the material on record and
made his submissions.                                                 G

Constitutional and statutory provisions :

    By the 42nd Amendment to the Constitution, effected in
1977, Article 39-A was inserted. This Article provides for free
                                                                      H
    1186     SUPREME COURT REPORTS                  [2012) 6 S.C.R.


A   legal aid by suitable legislation or schemes or in any other
    manner, to ensure that opportunities for securing justice are not
    denied to any citizen by reason of economic or other
    disabilities. Article 39-A of the Constitution reads as follows:-

B        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
c        of economic or other disabilities.

         Subsequently, with the intention of providing free legal aid,
  the Central Government resolved (on 26th September, 1980)
  and appointed the "Committee for Implementing the Legal Aid
D Schemes". This committee was to monitor and implement legal
  aid programs on a uniform basis throughout the country in
  fulfillment of the constitutional mandate.

        Experience gained from a review of the working of the
E   committee eventually led to the enactment of the Legal Services
    Authorities Act, 1987 (for short, the Act).

        The Act provides, inter alia for the constitution of a National
  Legal Services Authority, a Supreme Court Legal Services
  Committee, State Legal Services Authorities as well as Taluk
F Legal Services Committees. Section 12 of the Act lays down
  the criteria for providing legal services. It provides, inter a~a.
  that every person who has to file or defend a case shall be
  entitled to legal services, if he or she is in custody. Section 13
  of the Act provides that persons meeting the criteria laid down
G in Section 12 of the Act will be entitled to legal services
  provided the concerned authority is satisfied that such person
  has a prima facie case to prosecute or defend.

         It is important to note in this context that Sections 12 and
H   13 of the Act do not make any distinction between the trial stage
    RAJOO @ RAMAKANT v. STATE OF MADHYA                     1187
        PRADESH [MADAN B. LOKUR, J.]

and the appellate stage for providing legal services. In other       A
words, an eligible person is entitled to legal services at any
stage of the proceedings which he or she is prosecuting or
defending. In fact the Supreme Court Legal Services
Committee provides legal assistance to eligible persons in this
Court. This makes it abundantly clear that legal services shall      B
be provided to an eligible person at all stages of the
proceedings, trial as well as appellate. It is also important to
note that in view of the constitutional mandate of Article 39-A,
legal services or legal aid is provided to an eligible person free
of cost.                                                             c
Decisions of this Court :

     Pending the enactment of the Legal Services Authorities
Act, the issue of providing free legal services or free legal aid
or free legal representation (all terms being understood as          D
synonymous) came up for consideration before this Court.

    Among the first few decisions in this regard is Hussainara
Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC
98.-ln that case, reference was made to Article 39-A of the
Constitution and it was held that free legal service is an E
inalienable element of "reasonable, fair and just procedure for
a person accused of an offence and it must be held implicit in
the guarantee of Article 21 [of the Constitution]." It was noted
that this is "a constitutional right of every accused person who
is unable to engage a lawyer and secure free legal services F
on account of reasons such as poverty, indigence or
incommunicado situation." It was held that 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,
subject of course to the accused person not objecting to the G
providing of a lawyer.

      The essence of this decision was followed in Khatri (II) v.
State of Bihar, (1981) 1 sec 627. In that case, it was noted
that the Judicial Magistrate did not provide legal representation    H
    1188     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A   to the accused persons because they did not ask for it. This
    was found to be unacceptable. This Court went further and held
    that it was the obligation of the Judicial Magistrate before whom
    the accused were produced to inform them of their entitlement
    to legal representation at State cost. In this context, it was
B   observed that the right to free legal services would be illusory
    unless the Magistrate or the Sessions Judge before whom the
    accused is produced informs him of this right. It would also
    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
c   thereby rendering the constitutional mandate a mere paper
    promise.

          Suk Das v. Union Territory of Arunachal Pradesh, (1986)
    2 sec 401 reiterated the requirement of providing free and
    adequate legal representation to an indigent person and a
D   person accused of an offence. In that case, it was reiterated
    that an accused need not ask for legal assistance - the Court
    dealing with the case is obliged to inform him or her of the
    entitlement to free legal aid. This Court observed that it was
    now "settled law that free legal assistance at State cost is a
E   fundamental right of a person accused of an offence which may
    involve jeopardy to his life or personal liberty and this
    fundamental right is implicit in the requirement of reasonable,
    fair and just procedure prescribed by Article 21 [of the
    Constitution]."
F
         Since the requirements of law were not met in that case,
    and in the absence of the accused person being provided with
    legal representation at State cost, it was held that there was a
    violation of the fundamental right of the accused under Article
G   21 of the Constitution. The trial was held to be vitiated on
    account of a fatal co11stitutional infirmity and the conviction and
    sentence were set aside.

        We propose to briefly digress and advert to certain
    observations made, both in Khatri (If) and Suk Das. In both
H   cases, this Court carved out some exceptions in respect of
    RAJOO @ RAMAKANT v. STATE OF MADHYA                         1189
        PRADESH [MADAN B. LOKUR, J.]

grant of free legal aid to an accused person. It was observed            A
that there "may be cases involving offences such as economic
offences or offences against law prohibiting prostitution or child
abuse and the like, where social justice may require that .free
legal services need not be provided by the State." We have
some reservations whether such exceptions can be carved out              s
particularly keeping in mind the constitutional mandate ~nd the
universally accepted principle that a person is presumed
innocent until proven guilty. If such exceptions are accepted,
there may be a tendency to add some more, such as in cases
of terrorism thereby diluting the constitutional mandate and the         c
fundamental right guaranteed under Article 21 of the
Constitution. However, we need not say anything more on this
subject since the issue is not before us.

     The above discussion conclusively shows that tnrs Court
has taken a rather pro-active role in the matter of providing free       D
legal assistance to persons accused of an offence or convicted
of an offence.

Another view:
                                                                         E
      A slightly different Issue had recently arisen in Clark v.
Registrar of the Manukau District Court, (2012) NZCA 193.
The issue before the Court of Appeal in New Zealand was
whether legally aided defendants in criminal proceedings are
entitled to choose or prefer the counsel assigned to represent           F
them. The discussion in that case centered round the New
Zealand Bill of Rights Act, 1990 and the issue was answered
in the negative.

       However, ·in the course of discussion, the Court observed
that the right of a fair trial is guaranteed by the Bill of Rights       G
Act and it is an absolute right. A fundamental feature of a fair
trial is a right to legal representation under the Bill of Rights Act.
Reference was made to the decision of the Supreme Court of
New Zealand in Condon v. R, (2006) NZSC 62 wherein it was
concluded that representation by a lawyer is nearly always               H
    1190     SUPREME COURT REPORTS                  [2012) 6 S.C.R.


A   necessa1y for a trial for a serious offence to be fair. An accused
    person must have legal representation or at least should have
    been afforded a reasonable opportunity of attaining it when
    charged with a serious offence. But, the Supreme Court held
    that:
B
         "An accused has the right to employ a lawyer, but the state
         does not guarantee to provide the lawyer's services - in
         this respect its role is passive, in the sense that it must
         not impede the exercise of the right by the accused. The
         exception is under s 24(f) [of the Bill of Rights Act], when
c        the accused does not have sufficient means to provide for
         legal assistance. Even in such a case, however, it is the
         accused who must take the necessary steps to obtain
         assistance under the Legal Services Act."

D         It was noted that the Supreme Court agreed with the High
    Court of Australia in Dietrich v. R, 1992 HCA 57 that, other than
    in exceptional circumstances, "an accused who conducts his
    or her own defence to a serious charge, without having declined
    or failed to exercise the right to legal representation, would not
E   have had a fair trial." A conviction obtained in such
    circumstances would be quashed unless the prosecution is able
    to satisfy the appellate Court that the trial was actually fair.

        That there is a right of legal representation available to an
  accused is undoubted, even in New Zealand and Australia. The
F only point of disagreement appearing from Condon, as far as
  we are concerned, is whether the accused should be asked
  whether he or she requires legal assistance or not. The
  Supreme Court in New Zealand appears to have taken the view
  that the role of the State (and indeed of the Court) in this regard
G is passive. The view taken by this Court on issues of legal
  representation, on the other hand, is pro-active and an
  obligation is cast on the Court to enquire of the accused or
  convict whether he or she requires legal representation at State
  expense.
H
   RAJOO @ RAMAKANT v. STATE OF MADHYA                     1191
       PRADESH [MADAN B. LOKUR, J.]

Conclusion:                                                         A

     21. Under the circumstances, we are of the opinion that
neither the Constitution nor the Legal Services Authorities Act
makes any distinction between a trial and an appeal for the
purposes of providing free legal aid to an accused or a person      8
in custody. We are also of the view that the High Court was
under an obligation to enquire from Rajoo whether he required
legal assistance and if he did, it should have been provided to
him at State expense. However, since the record of the case
does not indicate any such endeavour having been made by
the High' Court, this case ought to be re-heard by the High Court   C
after providing RajoQ an opportunity of obtaining legal
representation.

     22. We dispose of this appeal by setting aside the
judgment and order dated 05.09.2006 passed by the High              D
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.3
of 1991 and remit the case records back to the High Court for
a fresh hearing. We request the High Court to expedite hearing
the appeal.
                                                                    E
K.K.T.                    Matter Remitted Back to High Court.