- (1.) The present intra-court appeal filed by the Union of India challenges order dated 26.07.2013 passed by a learned Single Judge of this Court allowing the writ petition filed by the respondent. The appeal further challenges the order dated 03.02.2014 passed by the learned Single Judge dismissing the Review Application filed by the appellants seeking review of the order dated 26.07.2013.
(2.) The factual matrix of the matter, in brevity, leading to the filing of the present appeal are that the respondent, who was originally a resident of the State of Tamil Nadu joined the Border Security Force as a Constable. During the course of his duties, he was posted on the India-Pakistan Border in Punjab. On 05.08.2005, when the respondent along with other Constables and Head Constables was on duty, it was alleged that he had caused the death of a fellow Constable namely Constable Mr. Phurba Yalmo. Resultantly, a General Security Force Court was convened and the respondent was tried under Section 302 IPC. The proceedings of the General Security Force Court (hereinafter referred to as 'the Court') show that the respondent, who was originally a resident of the State of Tamil Nadu, pleaded before the Court that he be allowed to engage a Civil Counsel from the State of Tamil Nadu as he could only communicate with him. He informed the Court that he had contacted one lawyer and he be permitted to engage him for defending him. He further informed the Court that the lawyer had told him that he would be available to defend him by the first or second week of August 2006. Shockingly, the Prosecutor objected to this request made by the respondent. Considering the request made by the respondent and objections of the Prosecutor, the Court granted only two days' time to the respondent i.e. 8th and 9th July 2006 to enable him to engage counsel. The Court re-assembled on July 10, 2006 and as virtually no reasonable time had been given to the respondent to engage a counsel, it was no surprise that the respondent could not engage the services of a counsel. Pushed to the wall, the respondent, in these unavoidable circumstances, was apparently coerced to give up his claim to engage a counsel. At this stage, it may be observed that the Court made no attempt to provide free legal aid to the respondent. Further, it may be brought on record that the Defending Officer, provided to the respondent, was one Shri Satnam Singh, who was a Punjabi and apparently was not in the knowledge of the language of the respondent.
(3.) Predictably, the trial ended in conviction of the respondent and as a result of such conviction, the respondent was sentenced to life. He was taken in custody. We are told that till date, he has served a sentence of about nine years and is lodged in Central Prison at Madurai, Tamil Nadu. Aggrieved by the order of conviction and sentence, as also his dismissal from service, the respondent approached this Court through Criminal Writ Petition No. 559 of 2007 titled N. Saravanan vs. Union of India and others. The writ petition was disposed of by this Court vide order dated 18.01.2008, granting liberty to the respondent to approach the Appellate Authority. In view of the liberty granted by this Court, the respondent filed a statutory petition/appeal dated 16.02.2008 before the Appellate Authority. The same was returned on 26.02.2008 on hypertechnical issues that there was no Power of Attorney on the record etc. Since the respondent was in jail, there was delay in re-filing of the appeal, as the same was re-filed on 12.12.2011. Vide order dated 23.01.2012, the appeal was dismissed by the Appellate Authority being time barred. This action, on the part of the appellants, was challenged by the respondent through a writ petition filed before this Court, which was heard and allowed by a learned Single Judge vide order dated 26.07.2013. The learned Single Judge gave the following directions to the appellants :- "In any case, to promote the cause of substantial justice the trappings of procedure should not be used to cause injustice and therefore, I would direct that the appeal as originally filed and now after the defects have been removed should be entertained by the Appellate Authority and decided on merits. Consequently, the impugned order dated 23.1.2012 is set aside and the appeal would be taken as deemed properly filed before the Appellate Authority. Since the petitioner is confined in Central Jail Trichy, Tamilnaidu, undergoing imprisonment for life, notice be issued by the appellate authority to him through Jail Superintendent, Central Jail Trichy to inform him that his appeal would be heard and decided on merits. He would be free to engage a counsel of his choice or to be represented by any counsel on the list maintained by the BSF or to request for a counsel to represent him in appeal through the State Legal Services Authority, New Delhi. The petition is allowed accordingly with the above directions.";