Trial Courts Must Record Offer Of Free Legal Aid To Accused Before Examination Of Witnesses : Supreme Court

The Supreme Court on Thursday (February 5) passed an important order directing the High Courts to pass on an instruction to the trial courts within their state to inform the accused of their right to legal aid in the event they cannot afford a counsel. The response of the accused to the offer of free legal aid must be recorded.

“It is incumbent upon the trial Courts dealing with criminal proceedings, faced with such situations, to inform the accused of their right to legal representation and their entitlement to be represented by legal aid counsel in the event they cannot afford a counsel. The trial Courts shall record the offer made to the accused in this regard, the response of the accused to such offer and also the action taken thereupon in their orders, before commencing examination of the witnesses.”, a bench of Justices Sanjay Kumar and K Vinod Chandran ordered.

Background

The order came to be passed in a case where the Appellant-accused was denied regular bail by the Madras High Court in an NDPS case where it was alleged that he was found in possession of a contraband in a commercial quantity. A case was registered against him for the offences punishable under Section 8(c) read with Sections 20(b)(ii)(C), 22(c), 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 19851 read with Section 135 of the Customs Act, 1962.

Aggrieved by the impugned order, he appealed to the Supreme Court, arguing a fit case for a grant of a bail on the ground of parity and prolonged incarceration of over 4 years.

Allowing his appeal, the Court granted him a bail, but also noted a pressing issue about non-representation by counsel. The Court noted that the trial court's omission to afford him a legal representation deprived him a chance to cross-examine the prosecution witness.

“We may also note at this stage that the appellant did not cross examine the witnesses at the initial stage and it was only after she engaged her own counsel and her application for re-examining those witnesses was allowed that she was permitted to do so.”, the court recorded.

It was in this context that the Supreme Court directed the High Courts to pass on this order to the trial courts to be followed scrupulously.

“This order shall be communicated to the Chief Justices of all the High Courts to enable suitable instructions being issued in this regard to all the concerned trial Courts within the State.”, the court directed.

Cause Title: REGINAMARY CHELLAMANI VERSUS STATE REP BY SUPERINTENDENT OF CUSTOMS

Citation : 2026 LiveLaw (SC) 121

Click here to download order

Appearance:

For Petitioner(s) : Mr. Raghenth Basant, Sr. Adv. Mr. Swastik Dalai, AOR Mr. M. Srinivasan, Adv. Ms. Kaushitaki Sharma, Adv. Ms. Bagavathy Vennimalai, Adv. Mr. E. Shanthakumar, Adv. Mr. T. Yuvaresh, Adv.

For Respondent(s) : Mr. S.D. Sanjay, A.S.G. Ms. Navroop Jawanda, Adv. Ms. Parthvi Ahuja, Adv. Mr. Khushal Kolwar, Adv. Ms. Disha Thakkar, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Rajat Nair, Adv. Ms. Aastha Singh, Adv. Ms. Mili Baxi, Adv. Mr. Alankar Gupta, Adv. Mr. Raman Yadav, Adv.