K. Lahiri, J.:— The appellant has been convicted u/s. 302 I.P.C and sentenced to imprisonment for life by the Additional Sessions Judge, Jorhat in Sessions Case No. 88 (K-G) of 1979.
2. When the hearing of the appeal was about to be conc-lnded by learned Public Prosecutor, we ourselves found, to our utter surprise that the accused was denied of his Constitutional right to the assistance of a lawyer provided at State costs.
3. During the course of the hearing of the appeal we were surprised to notice that there was no cross-examination worth the name Admittedly, the appellant, a tea garden workman, was unable to engage a lawyer or secure legal service on account of poverty, indigence and incommunicade situation. Learned Additional Ses sions. Judge accordingly engaged Shri A. Thakur, an advocate of Jorhat as State defence. On 12.8.83, the date of hearing of the case, Shri Thakur was absent and learned Addl. Ses sions Judge promptly appointed an Advocate of Golaghat to defend the accused at the cost of the State. On the very same date, the prosecution examined all their witnesses and closed the case. The statement of the accused was recorded and argu ments were heard on that date but delivery of the judgment was reserved. It is thus seen that on 12.8.83, a new advocate was called upon to take up the case and on the very same date all the witnesses for the prosecution were examined, cross-examined and discharged, the accused was examined and argu ments concluded. There is no material to show that even the brief of the case could be provided to the newly engaged Counsels It is, therefore, not surprising that there was no cross-examination worth the name. Not a single witness was confronted with the statements made before the police. It was “a mock trial”. It was a case which could result in capital punishment.
4. Is it providing free legal aid to appoint a “fresh lawyer” on the date of the trial when the accused is faced with a grave offence of culpable homicide amounting to murder? Was it just, expedient, proper and rational to hand over the charge of an important case to a new lawyer, call upon him to pre pare tbe case, cross-examine the witness and argue it on the very same day? We feel that the accused was consigned to death on the date of commencement of tbe trial. It is humanly impossible even for an experienced lawyer to prepare such a case without instructions, without having at least a fortnight's. time to prepare the case. Legal aid was given to be denied. The accused was deprived of a fair trial. The trial has been vitiated and on this ground alone the appeal must be allowed The reason for the apathy or deviation is not far to seek the accused is poor and that is his grave crime
5. We reiterate that an indigent prisoner has a Constitutional right to free legal aid. Failure to provide free legal aid to an indigent is violative of the basic and fundamental norms of Justice. One of the ingredients of “fair procedure” is to provide free legal aid to a prisoner who is indigent or otherwise disabled to secure legal aid. We rely on the observations of Prof. Veace Yale, “Gideon's trumpet” of Black J, the stimulating philosophy of Legal Aid by Mr. Justice Brennan, quotes from “The Poverty Jurisprudence” of Douglas J. in Jon Richard Argersinger v. Raymonds, commonly known as Raymond's case, 407 US 25, 32 L.Ed 530 (535, 536 and 554), Article 8 of the Universal Declaration of Human Rights, Art. 14(3) of the International Covenants on Civil and Political Rights and extracts from the Report of the High Powered-Committee on Free Legal Aid, “Processual Justice to the People”, and Article 39A of the Constitution, all referred in Haskot, (1978) 3 SCC 544 : AIR 1978 SC 1548. We draw the attention of the members of the Judiciary to Nandini Satpathy v. P.L Dani, (1978) 2 SCC 424 : AIR 1978 SC 1026, Khatri v. Bihar, (1981) 1 SCC 627 : AIR 1981 SC 928, Hussainara No. V., (1980) 1 SCC 108. In Gendra Brahma v. State of Assam, 1981 Cri. L.J 430, Kathu Goala v. State of Assam, 1981 Cr. L.J 424, State Of Assam… v. Rabindra Nath Guha…Opposite Party.. 2 of 1931 and Criminal Appeal No. 27(J) of 1981, wherein following the law laid down by Supreme Court it has been held that it is the constitutional right of every prisoner, who is unable to engage a lawyer or secure a legal service on account of poverty, indigence or incommunicado situation to have free legal service at the expense of the State. To deny the right is to contravene the provisions of Article 21 of the Constitution. We extract the golden rule laid down by the Supreme Court in Khatri (supra):
“We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”
[Emphasis added
6. In Suk Das v. Union Territory Of Arunachal Pradesh., (1986) 2 SCC 401 : AIR 1986 SC 991, Bhagwati, C.J speaking for the court has emphatically laid down that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. The fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The exercise of this fundamental right is not conditional 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 to him. In Suk Das (supra) the accused persons were convicted without informing them that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost “which resulted in the accused remaining unrepresented by a lawyer in the trial”. It was held to be a violation of the funda mental right of the accused under Article 21 and the trial was held to be vitiated on account of the fatal constitutional infirmity.
7. In the instant case, a fresh lawyer was appointed on the date of the trial without informing the appellant that he had a right to be represented by a Counsel u/s. 304(1) Cr. P.C read with Article 39A of the Constitution. In the instant case, a lawyer was engaged to comply with the formalities. No legal aid was provided to the accused in the instant case as it was impossible for the lawyer to prepare the case instantaneously, cross-examine the witness and argue a complicated case on the very same date. This is not providing legal aid to the accused. At best it could be called providing a legal aid to lawyer. The accused was denied of the assistance of a lawyer. Miss U. Barua, learned Public Prosecutor has fairly conceded that the trial was vitiated. Now, therefore, the sole question is whether the accused should be set at liberty upon setting aside the conviction and sentence as has been done by the Supreme Court in Suk Das (supra) or to remit the case back to the Sessions Judge for retrial.
8. We have perused the nature of the allegations brought against the accused and its gravity. We feel inclined that there should be a fresh trial. Accordingly, we set aside the conviction and sentence and send down the records forthwith to the trial court for fresh trial. Learned Judge shall appoint an experienced lawyer, who is competent to provide legal aid to the accused and conclude the trial within two months from the date of receipt of the records.
9. In the result, the appeal is allowed. The conviction and sentences are set aside and the case is remitted to the trial court for fresh trial in accordance with law.
10. Before parting with the records, we are tempted to extract what Lord Denning has said in “WHAT NEXT IN THE LAW”:
“To put it bluntly-the beneficiaries of legal aid fall into two categories: first, the accused person, whether guilty or not; second the legal profession. Some chambers have a dozen young barristers available to take briefs in small criminal cases. Each evening solicitors need a young barrister for this case or that. They ring up the barristers clerk. He distributes the cases round to his young people.”
11. There is a marked tendency to take very lightly the procedure for providing legal aid to the poor. The poor are mute. They have no media, no means to express their pangs and agonies and, therefore, with impunity they are provided with assistance but perhaps “no legal assistance by competent lawyer”. If it is the constitutional right of the poor to be provided with legal assistance, the assistance must be genuine, real and the best Jawyers should be engaged, otherwise it might be said in future that their constitutional rights were trampled by the judiciary. We say “CAVEAT ACTOR”. Let not posterity say that the poors were provided lip service or we shed crocodile tears in the name of legal aid.