Convict's Refusal To File Appeal Through Legal Aid Must Be Obtained In Writing: Orissa High Court
In order to ensure that no deserving/indigent convicted-prisoner is deprived of availing free legal aid to file appeal against conviction, the Orissa High Court has given an important directive to the District Legal Services Authorities (DLSAs) across the State to obtain his/her (convict's) refusal to grant consent to file Jail Criminal Appeal (JCRLA) in writing.A Division Bench of Justice...
In order to ensure that no deserving/indigent convicted-prisoner is deprived of availing free legal aid to file appeal against conviction, the Orissa High Court has given an important directive to the District Legal Services Authorities (DLSAs) across the State to obtain his/her (convict's) refusal to grant consent to file Jail Criminal Appeal (JCRLA) in writing.
A Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra also ruled that even though convicted-prisoners cannot be compelled to prefer appeal, they must be given adequate guidance so as to make them aware of their statutory as well as constitutional right to challenge conviction by way of appeal and even through free legal aid in appropriate cases. In the words of the Court –
“Sometimes, the convicts are unaware of their legal rights or appeal process and sometimes, they expressed unwillingness and are reluctant to file appeals for various reasons. If any convict does not choose to prefer appeal against his conviction in spite of proper guidance and proper advice being aware of his fundamental and statutory rights, the same should be obtained in writing from him by the Secretary of the D.L.S.A. and be forwarded to the Member Secretary of Odisha State Legal Services Authority for future reference and a copy of the same shall also be kept with the jail authorities.”
The Court reiterated that right to prefer appeal against conviction is a fundamental right even of the prisoners under Article 14 and 21 of the Constitution. It laid great store by the entitlement of a convict to challenge the legal condemnation imposed on him.
“A right of appeal is an invaluable right, particularly for an accused who cannot be condemned eternally by a trial Judge, without having a right to seek a re-look of the trial Court's judgment by a Superior or Appellate Court. The right to prefer an appeal by an accused against the conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution.”
Case Background
One Jatia Hembram was found guilty for commission of offence under Section 302 (murder) of the IPC for which he was sentenced to imprisonment for life on 30.01.2013 by the then Additional Sessions Judge, Mayurbhanj at Baripada.
Surprisingly, no criminal appeal was filed against the order of conviction for more than 12 years and a JCRLA was filed on behalf of the accused only in October, 2025. When the matter came up for admission hearing on Monday (November 24), the Court got astonished by noting made by the Stamp Reporter who had highlighted a delay of 4565 days in filing the appeal.
In order to ascertain the ground reality which led to such unfortunate violation of a constitutional right, the Court had virtually interacted with the Secretary, DLSA, Baripada as well as the Senior Superintendent of Circle Jail, Baripada.
The Court questioned the Secretary as to whether any criminal appeal has been filed by the accused in his private capacity. The Judicial Officer had informed that since it could not be ascertained as to whether any criminal appeal or JCRLA was filed previously, she recommended for filing of a fresh JCRLA before the High Court.
The Senior Superintendent of Jail, however, conveyed that the accused had filed a criminal appeal through an Advocate, but the details of such appeal was not known to either the jail authorities or the accused himself.
The Bench headed by Justice Sahoo had then directed the Secretary, DLSA to verify from the records as to whether the trial Court record (LCR/TCR) of the case was ever requisitioned by the High Court in connection with any criminal appeal or JCRLA. She was asked to send a report on this aspect to the Registrar (Judicial).
The Jail Superintendent was ordered to contact the counsel to whom the appellant had earlier entrusted the case for filing of criminal appeal so as to ascertain the status of such case, if filed. The Court had also sought a report from the District & Sessions Judge, Mayurbhanj asking him to explain the circumstances under which such lapse occurred.
Convict to be made aware of status of his appeal
When the matter came up again on Wednesday (November 26), the Secretary, DLSA informed the Court that the LCR is still available at the record room as the same was never called for by the High Court in connection with any appeal. Similarly, the Senior Superintendent of Jail also informed the Bench that the Advocate, to whom the accused had privately entrusted the case, never filed any appeal.
The District Judge, Mayurbhanj sent a report apprising the Court of the regular steps taken by him as well as the DLSA to ensure that every eligible prisoner gets due opportunity to challenge his conviction through the help of the legal services committee. He tendered sincere apology for the inordinate yet unintentional delay occurred in the given case.
Giving due weightage to the gravity of issue, the Court required virtual presence of the Director General (Prisons). He apprised the Bench about a special drive due to which more than 100 such cases were detected, where the Criminal Appeal or JCRLA numbers of convicts were not available with the jail authorities and the convicts also could not furnish the same. Therefore, provision was made to file JCRLAs in their favour and the instant case is one of them.
He also assured the Court that the track records of all the appeals, which are being filed by the convicts either by their own arrangement or through Legal Aid, the case numbers, the name of the counsel, the contact number of counsel, the status of interim application(s) including the bail application filed, if any, in the appeal would be maintained and a sheet of paper containing all such details shall be provided to the respective convicts.
“If any convict, who is detained in custody, states before the jail authority that he has made his own arrangement to file the Criminal Appeal, the number of such appeal and the name of the counsel and the contact number of the counsel shall be ascertained, verified and records thereof to be kept for future reference. The correctness of the filing of regular Criminal Appeal by a convict can be verified through High Court website, if the appeal is to be filed before this Court,” the Court directed.
The DG (Prisons) further assured the Court to undertake another special drive in different jails of the State to ascertain as to whether the prisoners have filed appeal(s) challenging the conviction and whether all other relevant details are available. He gave his word to the Court that if any convict is yet to prefer appeal, immediate steps shall be taken for filling such appeal before the appropriate Court.
No appeal without convict's consent
In the same vein, the Bench considered it proper to remind the DLSAs as well as the jail authorities of the recent observation made in Kamaljit Kaur v. State of Punjab, 2025 LiveLaw (SC) 1035. Therein the Supreme Court held that any appeal filed without the convict's consent amounts to misuse of the NALSA's free legal aid scheme. Considering the aforesaid observation, the High Court mandated to obtain the convict's refusal to prefer an appeal in writing.
However, the jail as well as DLSA officials were directed to advise and guide the prisoners properly so as to make them aware of the legal recourses available to them for getting any relief. If notwithstanding such advice, the convict is hell-bent on desisting from preferring appeal, his lack of consent must be recorded in a written form.
So far as the present case was concerned, the Court condoned the inordinate delay of more than 12 years in filing appeal in view of the peculiar circumstances of the case. The Bench went a step ahead to appoint Senior Counsel Goutam Misra as an amicus curiae to lead the case on behalf of the convict.
The Registry has been ordered to obtain the LCR immediately from the trial Court and prepare paper-books. The appeal shall now be heard on merits from January 07, 2026.
Case Title: Jatia Hembram v. State of Odisha
Case No: JCRLA No. 183 of 2025
Date of Order: November 26, 2025
Counsel for the Appellant: None
Counsel for the State: Mr. Jateswar Nayak, Addl. Govt. Advocate
Citation: 2025 LiveLaw (Ori) 156