The Allahabad High Court has reiterated that while prosecuting an indigent person who cannot afford to engage of lawyer, the court must provide him with "real and meaningful" free legal aid.
"…the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time. But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right…There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. 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 legal services. Legal aid would become merely a paper promise and it would fail of its purpose," Justice Rajeev Singh reiterated. Reliance was placed on Khatri and Ors. v. State of Bihar, AIR 1981 SC 928.
The court further observed that if adequate legal is not provided to an accused during trial, the same will be violative of his rights under Article 21 of the Constitution. It said,
"Section 303 and 304 of the Code of Criminal Procedure read with Rule 37 of General Rules (Criminal), 1977 framed by Allahabad High Court clearly provides for providing legal aid to defend the accused, which must be real and effective aid to an accused and it is the duty of the trial court to ensure proper compliance of the requirement to fair trial. Now, it is a fundamental right under Article 22(1) of the Constitution of India that the accused has a right to be defended by the competent practitioner."
The observations were made while allowing a revision petition for quashing the order passed by Special Judge (POCSO) whereby the Revisionist's application under Section 311 CrPC for recall of the witnesses for cross-examination was rejected.
The revisionist submitted that since he was not in a position to engage lawyer, Amicus Curiae for defending him was provided by the trial court at State expenses. However, the said Amicus Curiae did not avail the opportunity to cross-examine the witnesses, that too without consulting him.
The court observed that the impugned actions of the Amicus Curiae did not come across as real and effective and held that the impugned order had been passed on the wrong premise. It concurred with the Revisionist's submission that the intention of Section 304 CrPC is to provide real and effective aid to an accused and it is the duty of the trial court to ensure proper compliance of the requirement as the accused also has the right to fair trial. Reliance was placed on Mohd. Hussain & Julfikar Ali v. State (Govt. of NCT) Delhi, 2012 (9) SCC 408.
The court went on to observe that in India, about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. Thus, it held that the court was duty bound to inform the indigent accused of his rights, and to ensure that the same are implemented properly.
Case Title: Shadaan Ansari v. State of UP & Ors.
Case No.: Crl. Rev. No. 1393/2019
Quorum: Justice Rajeev Singh
Appearance: Advocate Bipin Kumar Tiwari (for Revisionist); Additional Govt. Advocate Aniruddh Kumar Singh (for State)