S. S. BYAS, J. - (1.) THIS Jail Appeal by accused Modia is directed against the judgment of the learned Additional Sessions Judge, Sirohi dated May 8, 1978 convicting the appellant under s. 302 IPC and sentencing him to rigorous imprisonment for life with a fine of Rs. 200/-, in default of payment of fine to further undergo four months rigorous imprisonment.
(2.) THE charge framed by the learned Additional Sessions Judge against the accused was that he committed murder of Mota in village Korta on July 20, 1977 by inflicting injuries to him with geti and an axe. THE accused pleaded not guilty and faced the trial. Since the accused had no financial means to engage a defence counsel, the Court appointed Amicus curiae for his defence in accordance with the provisions of s. 304 Cr. P. C. The prosecution examined three eye witnesses and the Doctor, in addition to many other witnesses. On the conclusion of trial, the learned Sessions Judge held the charge proved against the accused-appellant. He was consequently convicted and sentenced. In this Court also, the accused-appellant filed the appeal through jail. As such, the services of Shri J. M. Bhandari, Advocate were made available to the accused. Launching an attack on the judgment of the court below. Shri J. M. Bhandari at the forefront of his arguments submitted that the trial stands vitiated because the learned Amicus curiae who defended the accused in the trial court did not at all examined the prosecution witnesses. The appointment of the Amicus curiae in the trial court was nominal without any material legal help to the accused. In these circumstances, the trial could not be said to be fair. It was also not carried out in a proper manner. In reply, Mr. R. P. Dave, learned Public Prosecutor submitted that since the service of Amicus curiae were made available to the accused in the trial court, he cannot now make any complaint that the trial was not fair. We have given our anxious considerations to the respective contentions urged before us.
(3.) ADMITTEDLY, the accused had no financial means to engage a lawyer for his defence. As such, the services of the Amicus Curiae were made available to him by the trial court. The need for free legal aid to an indigent person need not be stretched. It has been consistently held by their lordships of the Supreme Court that in a case where the accused is unable to engage a counsel for his defence, it becomes the duty of the State to provide the services of a counsel for his defence at the State expenses. The modern thesis is that the criminal procedure providing trial should be reasonable, fair and just and unless it is reasonable, fair and just, it cannot be said to be a fair trial. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 would require the authority of law even if for the restriction of personal liberty. The Court is obliged to concade that in order to be a 'law' within the purview of this Article, it must be a 'valid' law and that it is a valid law only if it is enacted by a competent Legislature and if does not violate any of the other fundamental right declared by the Constitution, i. e. Art. 14 or Art. 22. Under Article 21, it is open to challenge the constitutionality of a law which deprives a person of his life or personal on the ground- (a) that it has not been enacted by a competent Legislature; (b) that the law suffers from the vice of excessive delegation; (c that it constitutes a colourable exercise of the legislative power: (d) that it contravenes any of the fundamental rights other than Art. 21. In Maneka Gandhi vs. Union of India (1), their Lordships of the Supreme Court observed: "that the requirement of compliance with natural justice was implicit in Art. 21 and that if any penal law (e. g. , the Passports Act) did not lay down the requirement of hearing before affecting him, that requirement would be implied by the Court, so that the procedure prescribed by law would be a reasonable and not arbitrary procedure. It is difficult to hold that the substance of the doctrine of 'due process' has not still been infused into the conservative text of Art. 21. " In M. H. Hoskot v. State of Maharashtra (2), the provisions of Arts. 21, 22, 39 A and 142 of the Constitution were examined. It was observed by their Lordships: "it is integral to fair procedue, natural justice and normative univers-lity save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court as provided in the Criminal Procedure Code, manifests this value upheld in Art 21. Every steps that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and, argo, unconstitutional (In a sense, even. Art. 19 may join hands with Art 21 ). Pertinent to the point are two requirements; (i) service of a copy of the judgment to the prisoner in time to file an appeal and (ii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under Art. 21. Where the procedural law provides for further appeals, these requirements will similarly apply. " The same principles were followed by their Lordships of the Supreme Court in Hussainara Khatoon vs. State of Bihar (3 ). Their Lordships of the Supreme Court observed as under: "when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be 'reasonable, fair and just'. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just'. It is an essential ingredient of 'reasonable, fair and just' procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him. Article 39-A of the Constitution, also emphasis that free legal service is an unalienable element of 'reasonable, fair and just' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient or 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantees of Art. 21. This a constitutional right of every accused person who is unable to engage lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicade situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required, provi-did of course the accused person does not object to the provision of such lawyer. " In Hussainara Khatoon vs. State of Bihar (4), it was observed by their Lord-ship of the Supreme Court as under: "it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicade situation, to have free legal services provided to him by the State and the State is under a consttutional mandate to provide a lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Act. 21 and every State Government should try to avoid such a possible eventuality. " We are fortified with our views by the observations made by their Lordships of the Supreme Court, in the above referred authorities. ;