- (1.) This jail appeal is before us to challenge the judgment dated 2.2.2011 passed by learned Additional Sessions Judge, Ratangarh District Churu in Sessions Case No.9/2010. Learned trial court by the judgment impugned convicted the appellant for an offence punishable under Section 302 Indian Penal Code and sentenced him to undergo life term imprisonment with a fine of Rs.1000/- with default stipulation.
(2.) Looking to the fact that the entire judgment is running only in three pages and without referring any cross examination on behalf of the accused, we examined all the order sheets of the proceedings of the trial before the court subordinate.
(3.) It is quite strange that the accused was not at all represented by any legal practitioner before the trial court. The trial court also did not ask the accused for providing legal aid in the spirit of Article 39-A of the Constitution of India and as per Section 304 Code of Criminal Procedure, 1973. Section 304 Code of Criminal Procedure mandatorily provides for assigning a pleader for the defence of accused at the expenses of the State. The right available under Section 304 Code of Criminal Procedure, 1973 is also not dependent to asking by the accused orally or by way of moving an application. Hon'ble Supreme Court in Suk Das and another v. Union Territory of Arunachal Pradesh, 1986 AIR(SC) 991held that free legal assistance at State cost is a fundamental right of a person accused of an offence. The relevant portion of the judgment aforesaid reads as under:- "5. ..... It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involved jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognised that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellant was entitled to a free legal assistance at State cost when he was placed in peril of their personal liberty by reason of being accused of an offence which is proved would clearly entail imprisonment for a terra of two years. 6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advise in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor finds themselves can be alleviating to some extent by creating legal awareness amongst the poor. That is why it has always been recognised as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances 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. This is the reason why in Khatri and Ors. v. State of Bihar, 1981 AIR(SC) 928, we ruled that 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 services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge obligation and contented themselves by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed "the Magistrates and Sessions Judges in the country to inform every accused who appear before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State" unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country "...to make provision for grant of free legal service to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situations," the only qualification being that the offence charged against an accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and that the needs of social justice require that he should be given free legal representations.";