The legal aid is nothing but a farce, said the Gujarat High Court in a judgment setting aside the death penalty awarded to a lady accused of double murder, even without an inquiry about her mental condition even though the FIR itself had stated about it.
The Division Bench comprising of Justice JB Pardiwala and Justice AC Rao, made this serious criticism of legal aid being provided to the accused in serious crimes.The court noted that it was on account of poverty and being a helpless girl just 19 years of age that accused could not manage to engage a seasoned, well-experienced trial side lawyer, and instead had to avail the legal aid provided by the District Legal Services Authority.
Perturbed with the fact that the defence lawyer so appointed by the authority, did not even lead any evidence as regards the insanity of the accused, the court said:
"The panel of lawyers which is being prepared for the purpose of legal aid is not a platform to provide training to young lawyers or give them an opportunity to gain experience as regards conduct of a sessions case. The cross-examination of the witnesses in a serious offence like murder is not a child's play. It is very unfortunate to note that in the case on hand there is practically no cross-examination. This is not just one case on hand. We have come across so many appeals in which there is no cross-examination worth the name by the defence counsel appointed by the Legal Services Authority."
The court observed that it seems that the lawyer was not sufficiently experienced particularly with regard to the conduct of the cases involving point of insanity of the accused. The bench said:
If proper instructions would have been taken by the defence counsel in this regard and if the defence counsel would have read the papers thoroughly, then immediately he could have got an idea that something was wrong with the mental condition of the accused.
The court added that, in future case, if the trial Judge is of the view having regard to the serious nature of the crime that the assistance of a seasoned and experienced criminal side lawyer is required, then it would be the duty of the trial Judge to appoint one by fixing appropriate remuneration one befitting to the stature of the said lawyer concerned and thereafter recover the amount from the State Government and pay the same to the concerned lawyer. The court issued these directives:
In case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer should be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment. In case of sessions cases of complex or peculiar facts it should be inquired whether he has conducted such case or not. The legal aid to be provided at the State expenses should not be for the namesake. Upon such inquiry only he should be appointed as the advocate for the accused, and that too, after recording his satisfaction of the competency of the advocate.
The court added that the trial court should disclose in its order the length of practice of the advocate appointed and his/her experience in conducting the criminal cases, sessions cases or sessions of particular type and his opinion that in the situation he/she was the competent person to be appointed for the accused particularly in cases where there is likelihood of conviction for major offences.