Skip to main content

On selecting an option from the following Language drop-down list, the language of the content will change accordingly.

    Text Size:  Smaller text size Medium text size Larger text size  | 

    Contrast Scheme:  Standard View High Contrast View  | 

    Screen Reader
    SLIC, Socio-Legal Information Center.
    • Mail
    • Print
    • PDF

    The right to fair representation under legal aid: Ramchandra Nivrutti Mulak vs. The State of Maharashtra

    Date : 26/06/2008

    This appeal was based on the fact that the appellant was not represented before the Sessions Court in his original trial under Section 302 of the Indian Penal Code (Punishment for murder) and other offences. A lawyer had been appointed to represent the appellant but had made an application to withdraw from the case. Despite rejection of this application by the Sessions Judge, the lawyer failed to appear for the trial. The trial proceeded without the appellant being assisted by an advocate or the court informing the appellant that he could avail of the services of a lawyer under the free legal aid scheme. As per their judgement dated 26 June 2008, the learned judges equated the above circumstances to instances where the accused has no representation. A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India. A new trial was ordered and the learned judges reiterated the burden on the courts and the State to provide free legal aid. In doing so, they felt it would be appropriate for the State Government to reconsider rules for grant of legal aid and fix proper remuneration for advocates under the legal aid scheme. Instructions were given to forward a copy of the judgement dated 26 June 2008 to the Chief Secretary, State of Maharashtra for necessary compliance and to the Registrar General to place the matter before the learned Chief Justice for appropriate directions.

    Case Details and Status

    The appellant was convicted under Section 302 of the Indian Penal Code (Punishment for murder) and other offences. He was sentenced by judgement dated 5 November 2004 to imprisonment for life and to pay a fine of Rs.100/-.

    This appeal was based on the fact that the appellant was not represented before the Sessions Court. A lawyer had been appointed to represent the appellant but had made an application to withdraw from the case. Despite rejection of this application by the Sessions Judge, the lawyer failed to appear for the trial.

    The matter proceeded without the appellant having services of a legal practitioner during the course of the trial. A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India.

    The key issue identified during the appeal was: “If the lawyer appearing for the accused files application for withdrawal, which is rejected by the court, and the lawyer fails to turn up for trial, is a duty cast on the trial court to ask the accused to make alternative arrangement for appearance by lawyer or appoint a lawyer for the accused under legal aid scheme?”

    In arguing for the appellant, the HRLN advocate referred to a number of rules, provisions and judgements:

    Free legal assistance at state cost is a fundamental right of the person accused of an offence, which may involve jeopardy to the person s life or personal liberty and this fundamental right pre-supposes the requirement of a reasonable, fair and just procedure prescribed under Article 21 of the Constitution of India. (M.H. Hoskot Vs. State of Maharashtra, AIR 1978 SC 1548 and Hussainara Khatoon s case, AIR 1979 SC 1369.)

    The Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the service of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. (Supreme Court in Suk Das and another Vs. Union Territory of Arunachal Pradesh, 1986, Cri.L.J. 1084 and Khatri and Others Vs. State of Bihar and Others, 1981 Cri.L.J. 470.)

    The above Supreme Court ruling further held that the conviction of an appellant not represented by a lawyer was clearly in violation of the fundamental rights of the appellant under Article 21 of the Constitution. The trial was accordingly held to be invalid and the conviction and sentence imposed against the appellant set aside. The court also observed that a consequence of quashing the conviction would be that the appellant would have to be tried again after provision of free legal assistance at state cost.

    Section 304 of the Code of Criminal Procedure, is a provision providing for legal aid to the accused at State cost in certain cases. The High Court of Judicature at Bombay made certain rules under Section 304 regarding legal aid for accused without representation before Sessions Courts. These rules came into effect from October 1982 and cast a duty on the Presiding Officer to explain to every accused person without representation the provisions of the rules of Legal Aid as soon as the accused is produced before the Presiding Officer for the first time. If the accused confirms their income does not exceed Rs.5,000/- per annum, they shall be asked if they desire to submit an application for Legal Aid.

    The High Court of Judicature at Bombay also framed rules relating to cases tried before a Sessions Judge in which any person is liable to be sentenced to death. Under these rules, the accused shall be informed by the committing Magistrate at the time of committal that unless he intends to make his own arrangements for legal assistance, the higher court will engage a legal practitioner at Government expense to appear before it on behalf of the accused.

    Reference was also made to the Legal Services Authorities Act, 1987, Section 12 and the Maharashtra State Legal Aid Advice Scheme, 1979, to show that pursuant to the judgements of the Supreme Court and rules framed and existing in the State of Maharashtra, provisions have been made for providing legal aid in cases such as that of the appellant.

    With regard to the original trial of the appellant: it was argued that he was strictly speaking not without representation. The lawyer for the appellant applied to withdraw from the case but this application had been rejected. Despite this rejection, the lawyer failed to appear for the trial. The learned Judge proceeded with the trial on the basis that the accused was represented, as the application for withdrawal had been rejected, even though the lawyer chose not to appear. The trial proceeded without the appellant being assisted by an advocate or the court informing the appellant that he could avail of the services of a lawyer under the free legal aid scheme.

    In their judgement of 26 June 2008, the judges expressed an opinion that the above circumstances stood on an equal footing to instances where the accused has no representation:

    “The learned Judge by rejecting the application for withdrawal, at the highest could have taken steps against the concerned lawyer on failure to remain present. The Court did not pose to itself the question whether in such a case the trial could be proceeded with and if proceeded with it would satisfy the mandate of Article 21. Courts cannot play lip service to the right under Article 21. Courts in such a case must play an active role to ensure a fair trial. In the instant case it was clearly an infraction of the appellant’s right to a fair trial guaranteed under Article 21 of the Constitution of India.

    Once a lawyer applies to withdraw and chooses not to appear, there is burden cast on the courts to inform the accused either to engage another lawyer or to inform him that he is entitled to free legal aid if he so desires& The trial, therefore in the instant case ought not to have proceeded with in the absence of the accused being informed of his right to be represented by lawyer. In our opinion, therefore, on the facts of this case, the trial was in contravention of the appellant’s right to fair trial as enshrined under Article 21 of the Constitution of India. The conviction and sentence of the appellant for the offences for which he has been charged, convicted and sentenced will have to be set aside.”

    The matter was remanded to the trial court for a new trial where a lawyer with previous experience of conducting trials for offences punishable under Section 302 of Indian Penal Code would be appointed under legal aid.

    The court also felt it appropriate for the State Government to reconsider the rules for grant of legal aid and to fix proper remuneration for advocates under the legal aid scheme.

    Records showed legal aid fees payable to lawyers had not been revised in the ten years prior to the case. The learned judges questioned the ability to engage competent lawyers at such rates and further noted: “Empanelling advocates who are not conversant with criminal procedure and or of Evidence Act or Indian Penal Code would be defeating the very object behind Section 304, considering the ratio of the judgments of the Supreme Court, which have held that right to free legal assistance is a right guaranteed under Article 21 of the Constitution of India”.

    The learned judges also examined the appointment of Senior and Junior Advocates in relation to rules made by the High Court of Judicature at Bombay under Section 304 of the Code of Criminal Procedure. Rule 6 states that if the accused is being tried for an offence punishable by death or imprisonment of seven or more years and seeks free legal aid the learned Judge is bound to appoint a Senior Advocate and a Junior Advocate. Under rule 10, the Senior Advocate is not to be paid fees. The junior advocate is paid fees.

    The learned judges observed that in framing rules for the provision of free legal aid, the Supreme Court had not meant that senior Advocates would work for free on every occasion. They felt it would be appropriate for the State Government to reconsider rules for grant of legal aid and fix proper remuneration for advocates under the scheme.

    Instructions were given to forward a copy of the judgement dated 26 June 2008 to the Chief Secretary, State of Maharashtra for necessary compliance and to the Registrar General to place the matter before the learned Chief Justice for appropriate directions.

    20080829104829_Bombay.pdf
    0

    Related Articles

    Slideshow - Related Post

    Contact Us

    HUMAN RIGHTS LAW NETWORK

    Socio-Legal Information Center, 576, Masjid Road, Jungpura, New Delhi - 110014

    +91-11-24374501, +91-11-24379855, +91-11-24374502(Fax)

    contact@hrln.org

    Follow us on

    • facebook
    • google plus
    • twitter
    • linkedin
    • instagram
    • youtube
    Back To Top