SUK DAS & ANR.versusUNION TERRITORY OF ARUNACHAL PRADESH

    590

A
                                                                \
                            SUK DAS & ANR.
                                  v.
                 UNION TERRITORY OF ARUNACHAL PRADESH

                           MARCH 10, 1986

          [P,N, BHAGWATI, C.J., D.P. MADON AND G.L, OZA, JJ,]
B

          Constitution of India, Art. 21 - ·Accused on account of,_
    poverty unable to afford legal representation - Duty of court
    to inform him that he can have a lawyer at State expense -
    Effect of not providing legal representation to the accused at
    State cost - Whether vitiates trial.
c
          The appellant and five other accused were charged in the
    Court of Addl. Deputy Colllllissioner for an of fence under
    section 506 read with section 34 of 'the Indian Penal Code on
    the allegation that they threatened an Assistant Engineer of ,
    the Central Public Works Department with a view to compelling..
D
    him to cancel the transfer orders of the accused which had
    been passed by him. The appellant was not represented by any
    lawyer since he was admittedly unable to afford legal
    representation on account of his poverty and the result was
    that he could not cross-examine some of the witnesses of the
    prosecution, At the end of the trial, four of the accused were
E
    acquitted but the appellant and another accused were convicted
    of the aforesaid offence and he was sentenced to undergo
    simple imprisonment for a period of two years.
                                                                 l
          The appellant thereupon preferred an appeal before the
    High Court contending that he was not provided free legal aid
F
    for his defence and the trial was, therefore, vitiated. The
    High Court upheld the conviction of the appellant on the
    ground that no application for legal aid was made by him
    before the Addl. Deputy Commissioner and therefore, it could



                                                                I
    not be said that failure to provide legal assistance vitiated
    the trial.
G

          Allowing the appeal,

         HELD : (1) The conviction and sentence recorded against
    the appellant is set aside and the order dismissing the
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                              SUK DAS v. UNION TERRITORY               591

                                                                             A
     ·-•appellant from service passed on the basis of his conviction
        by the learned Additional Deputy Commissioer 1111st also be
        quashed. [597 C]

           (2)(i) It is settled law that free legal assistance at
    State cost is a fundamental right of a person accused of an              B
    offence which may involve jeopardy to his life of personal
    liberty and this fundamental right is implicit in the
 ~ jrequirement of reasonable, fair and just procedure prescribed
    by Article 21. Of course, it 1111st be recognised that there msy
    be cases involving offences, such as economic offences or
    offences against law prohibiting prostitution or child abuse
    and the like, where social justice msy require that free legal           C
    service msy not be provided by the State. [594 G-H]

              Bussainara lbatoon's case, [1979] 3 s.c.R. 532 & K.H.
        Boakot v. State of Maharashtra [1978] 3 s.c.c. 544 followed.

     ·'
     p. -          (2)(11) The right to free legal service is a              D
            constitutional right of every accused person who is unable to
            engage a lawyer and secure legal service on account of
            reasons, such as, poverty, indigence or inclllllllllnicado
            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 the justice so require, provided, of course, the        E
            accused person does not object to the provision of such
            lawyer. 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
            ~egal services. Legal aid would become merely a paper promise
..          and it would fail of its purpose. [594 D-F; 595 G]
                                                                             F
              Khatri & Ors. v. State of Bihar & Ors.' [1981] 2 s.C.R.
        408 referred to.

            In the instant case, the Additional Deputy Comnl.ssioner
      did not inform the appellant that he was entitled to free
      legal assistance nor did he enquire from the appellant whether         G
.,.; -~ wanted a lawyer to be provided to him at State cost. The
      result was that the appellant remained unrepresented by a
      lawyer and the trial ultimately resulted in his conviction.
      This was clearly a violation of the fundamental right of the
      appellant under Article 21 and the trial 1111St accordingly be
      held to be vitiated on account of a fatal constitutions!               H
    592                  SUPREME COURT REPORTS         [19861 i s.c.R.

A
    infirmity, and the conviction and sentence recorded against ,_,
    the appellant 1111St be set aside, (596 H; 597 A-B]

         (In the facts and circumstances of the case, the Court
    directed that the appellant shall be reinstated in service,
    but he shall not be entitled to claim any back wages and no
    fresh trial shall be held against him.] (597 F-G]
B
            CRIMINAL APPELLATE JURISDICTION    Criminal Appeal No. 725 l- ~
    of 1985.

          From the Judgment and Order dated 9.8.84 of the Gauliati
    High Court in Crl. Revision No. 205 of 1979.
c
            Vijay Hansaria and S.K. Jain for the' ~ppellant.

          Abdul Khader, G. Chandra and Ms. A. Subhashini for the
    Respondent.
D           The Judgment of the Court was delivered by

          BIIAGWATI, C.J. This appeal by special leave raises a
    question of considerable importance relating to the
    administration of criminal justice in the country. The
    question is whether an accused who on account of his poverty
E   is unable to afford legal representation for himself in a
    trial involving possibility of imprisonment imperilling his
    personal liberty, is entitled to free legal aid at State cost
    and whether it is obligatory on him to make an application for,
    free legal assistance or the Magistrate or the Sessions Judge ..
    trying him is bound to inform him that he is entitled to free
F   legal aid and inquire from him whether he wishes to have a
    lawyer provided to him at State cost: if he is not so informed·
    and in consequence he does not apply for free legal
    assistance and as a result he is not represented by any lawyer
    in the trial and is convicted, is the conviction vitiated and
    liable to be set aside? This question is extremely important
G   because we have almost 50% population which is living belo1J
    the poverty line and around 70% is i.lliterate· and lar.5l- ·~,
    sections of people just do not kno"1 that H they are unable to
    afford legal representation in a criminal trial, they are
    entitled to free legal assistance provided to them at State
    cost.
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               SUK DAS v. UNION TERRITORY [BHAGWATI, C.J.]        593

                                                                         A
  ~         The facts giving rise to this appeal are not material
      because the question posed for our consideration is a pure
      question of law. But even so the broad facts may be briefly
      set out since they provide the back-drop against which the
      question of law arises for consideration.
                                                                         B
               The appellants and five other accused were charg_ed in
        the court of the Additional Deputy Commissioner, Dibang
   ~-~Valley, Anini, Arunachal Pradesh for an offence under section

,\      506 read with Section 34 of the Indian Penal Code on the
        allegation that the appellants and the other five accused
        threatened Shri H.S. Kohli, Assistant Engineer, Central Public
        Works Department, Anini with a view to compelling him to         c
        cancel the transfer orders of the accused which had been
        passed by him. The case was tried as a warrant case and at the
        trial 8 witnesses, on behalf of the prosecution, were
        examined. The appellant was not represented by any lawyer


--      since he was admittedly unable to afford legal representation
     ' on account of his poverty and the result :was that he could not
        cross-examine the witnesses of the prosecution. The appellants
        wished to examine 7 witnesses in defence but out of them two
        could not be examined since they were staying far away and
                                                                         D



        moreover, in the opinion of the court, they were not material
        witnesses. The remaining 5 witnesses were examined by ,the
        appellants without any legal assistance. The result was that     E
        at the end of the trial four of the other accused were acquit-
        ted but the appellant and another accused were convicted of
        the offence under Section 506 of the Indian Penal Code and
        they were sentenced to undergo simple imprisonment for a
      1
       ·period of two years.
                                                                         F
             The appellant thereupon preferred an appeal before· the
      Gauhati High Court. There were several contentions urged in
      support of the appeal but it is not necessary to refer to
      them, since there is one contention which in our opinion goes
      to the root of the matter and has invalidating effect on the
      conviction and sentence recorded against the appellant. That       G
      contention is that the appellant were not provided free legal
 ·• ·>'aid for his defence and the trial was therefore vitiated. This
      self-same contention was also advanced before the High Court
      in the appeal preferred by the appellant but the High Court
      took the view that, though it was undoubtedly the right of the
      appellant to be provided free legal assistance, the appellant      H
      did no make any request to the learned Additional Deputy
    594                SUPREME COURT REPORTS        [1986] 1 s.c.R.

A
    Commissioner praying for legal aid and since no application\..o.
    for legal aid was made by him, "it could not be said i.n the
    facts and circumstances of the case that failure to provide
    legal assistance vitiated the trial". The High Court in the
    circumstances confirmed the conviction of the appellant but in
    view of the fact that he was already in jail for a period of
B   nearly 8 months, the High Court held that the ends of justice
    would be met if the sentence on the appellant was reduced to
    that already undergone by him. The appellant was accordinglyl- ·•
    ordered to be, set at liberty forthwith but since the order of
    conviction passed against him was sustained by the High Court,
    he preferred the present appeal with special leave obtained
c   from this Court.

          It is now well established as a result of the decision
    of this Court in llussainara Khatoon's case [1979] 3 S.C.R. 532
    that "the right to free legal service is •••••••••• clearly an
    essential ingredient of reasonable, fair and just procedure
D   for a person accused of an offence and it must be held to be .' ...-
    implicit in the guarantee of Article 21. This is a constitu-
    tional 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 incolllilllnicado situation and the State is
    under a mandate to provide a lawyer to an accused person if
E   the circumstances of the case and the needs of justice so
    require, provided of course the accused person does not object
    to the provision of such lawyer". This Court pointed out that
    it is an essential ingredient of reasonable, fair and just
    procedure to prisoner who is to seek his liberation througl\       ,
    the court's process that he should have legal service avail...: ol
F   able to him. The same view was taken by a Bench of this Court
    earlier in K.H. Boskot v. State of Maharashtra, [1978] 3
    S.C.C. 544. It may therefore now be taken as settled law that
    free legal assistance at State cost is a fundamental right of
    a person accused of an offence which may involved jeopardy to
    his life or personal liberty and this fundamental right is
G
    implicit in the requirement of reasonable, fair and just pro-
    cedure prescribed by Article 21. Of course, it must be recog~_ ~
    nised that there may be cases involving offences, such as,
    economic offences or offences against law prohibiting prosti-
    tution or child abuse and the like, where social justice may
    require that free legal service may not be provided by the
H
    State. There can in the circumstances be no doubt that the
               SUK DAS v. UNION TERRITORY [BHAGWATI, C,J,]         595

                                                                          A
 -!appellant was entitled to a free legal assistance at State
    cost when he was placed in peril of their personal liberty by
    reason of being accused of an offence which is proved would
    clearly entail imprisonment for a term of two years.

               But the question is whether this fundamental right could   B
        lawfully be d.enied to the appellant if he did not apply for
        free legal aid. ls the exercise of this fundamental right
  "- "\conditioned upon the accused applying for free legal
        assistance so that if he does not make an application for free
        legal assistance the trial· may lawfully proceed without
        adequate legal representation being afforded to him? Now it is
        common knowledge that about 70% of the people living in rural     c
        areas are illiterate and even more than that percentage of the
        people are not aware of the rights conferred upon them by law.
        Even literate people do not know what are their rights and
        entitlements under the law. It is ·this absence of legal
        awareness which is respons:ble for the deception, exploitation
     1                                                                    D
-       and deprivation of rights and benefits from which the poor
        suffer in this land. Their legal needs always stand to become
        crisis oriented because their ignorance prevents them from
        anticipating legal troubles and approaching a lawyer for
        consultation and advise in time and thier poverty magnifies
        the impact of the legal troubles and difficulties when they
        come. Moreover, because of their ignorance and illiteracy,        E
        they cannot become self-reliant: they cannot even help
        themselves. The law ceases to be their protector because they
        do not know that they are entitled to the protection of the
       1law and they can avail of the legal service programme for
        'putting an end to their exploitation and winning their
        rights. The result is that poverty becomes with them a condi-     F
        tion of total helplessness. This miserable condition in which
        the poor finds themselves can be alleviating to some extent ~y
        creating lega~ awareness amongst the poor. That is why it has
        always been recognised as one of the principal i terns of the
        programme of the legal aid movement in the country to promote
         legal literacy, It would in these circumstances make a mockery   G
   • -ff legal aid if it were to be left to a poor ignorant and
        illiterate accused to ask for free legal services. Legal aid
        would become merely a paper promise and it would fail of its
        purpose. This is the reason why in Khatri & Ors. v. State of
        Bihar & Ors., [1981]     2 s.c.R. 408, we ruled that the
       Magistrate or the Sessions Judge before whom an accused            H
       appears must be held to be under an obligation to inform the
    596                SUPREME COURT REPORTS        [1986] 1 S.C.R.
A
    accused that if he is unable to engage the services of a
    lawyer on account of poverty or indigence, he is entitled to.._
    obtain free legal services at the cost of the State. We
    deplored that in that case where the accused were blinded
    prisoners the Judicial Magistrate failed to discharge obliga-
    tion and contented themselves by merely observing that no
B   legal representation had been asked for by the blinded
    prisoners and hence none was provided. We accordingly directed
    "the Magistrates and Sessions Judges in the country to inform
    every accused who appear before them and who is not represen-t--·-"
    ted by a lawyer on account of his poverty or indigence that he
    is entitled to free legal services at the cost of the State"
c   unless he is not willing tg take advantage of the free legal
    services provided by the State. We also gave a general direc-
    tion to every State in the country " ...... to make provision
    for grant of free legal service to an accused who is unable to
    engage a lawyer on account of reasons such as poverty, indi-
    gence or inconnnunicado situations," the only qualification
D   being that the offence charged against an accused is such
    that, on conviction> it would result in a sentence of • _
    imprisonment and is of such a nature that the circumstances of
    the case and that the needs of social justice require that he
    should be given free legal representations. It is quite
    possible that since the trial was held before the learned
E   Additional Deputy Conmissioner prior to the declaration of the
    law by this Court in Khatri & Ors. v. State of Bihar (supra),
    the learned Additional Deputy Conmtlssioner did not infrom the .
    appellant that if he was not in a positl.on to engage a lawyer
    on account of lack of material resources he was entitled to
    free legal assistance at State cost nor asked him whether ~
F   would like to have free legal aid. But it is surprising that
    despite this declaration of the law in Khatri & Ors. v. State
    of Bihar & Ors. (supra) on 19th December 1980 when the deci-
    sion was rendered in that case, the High Court persisted in
    taking the view that since the appellant did not make an
    application for free legal assistance, no unconstitutionality
G   was involved in not providing him legal representation at
    State cost. It is obvious that in the present case the learned
    Additional Deputy Commissioner did not inform the appellan~
    that he was entitled to free legal assistance nor did he
    inquire from the appellant whether he wanted a lawyer to be
    provided to them at State cost. The result was that the appel-
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                 SUK DAS v. UNION TERRITORY [BHAGWATI, C.J,]       597

       lant remained unrepresented by a lawyer and the trial ulti-       A
       mately resulted in his conviction. This was clearly a viola-
       tion of the fundanx>ntal right of the appellant under Article
       21 and the trial must accordingly be held to be vitiated on
       account of a fatal constitutional infirmity, and the convic-
       tion and sentence recorded against the appellant must be set
       aside.                                                            B

              The appellant contended that if the conviction and
       sentence recorded against him is set aside, the order
       dismissing the appellant from service passed on the basis of
       his conviction by the learned Additional Deputy Commissioner
       must also be quashed and he must be reinstated in service with
       back wages. Now it is true that the appellant was dismissed       c
       from service without holding an inquiry on account of his
       being convicted for a criminal offence and since the convic-
       tion of the appellant is being set aside by us, the order of
       dismissal must also fall and the appellant must be reinstated

...'   in service with back wages. But the result of our quashing the
       conviction of the appellants would be that the appellant would
       have to be tried again in accordance with law after providing
                                                                         D

       free legal assistance to him at State cost and that would nx>an
       that the appellant would continue to be exposed to the risk of
       conviction and imprisonment and the possibility cannot be
       rul(!d out that the offence charged may ultimately be proved
       against him and he might land-up in jail and also lose their      E
       service. We therefore felt that it would not only nx>et the
       ends of justice but also be in the interest of the appellant
       that no fresh trial should be held against him and he should
       be reinstated in service but without back wages. We according-
       ly direct that the appellant shall be reinstated in service
       but he shall not be entitled to claim any back wages and no       F
       fresh trial shall be held against him. The appeal will stand
       disposed of in these terms.



       M.L.A.                                         Appeal allowed.