B.L. Hansaria, J.
1. 'Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But, injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it, beyond their reach, the threat to the continued existence of a free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.
The above observation of Brennan, J. has more application to this country because of deep poverty here. It was the realisation of great social injustice and that too in a forum of justice which must have led to the insertion of Article 39A by the Forty-Second Amendment Act, 1976, in our Constitution ''Equal Justice' had really been a part of our organic document from its very inception in Article 14 of the Constitution It is however the liberal interpretation of Article 21 in Maneka Gandhi : 2SCR621 , which saw fresh thinking on the subject of legal aid by the highest court of the land. It was proclaimed in no uncertain terms by Bhagwati, J. in the landmark decision in Maneka Gandhi : 2SCR621 , that every procedure would not satisfy the call of Article 21. The same has to be 'right and just and fair and not arbitrary, fanciful and oppressive'. Hoskot : 1978CriLJ1678 , saw for the first time a clarion call in this regard, which was of course in the wake of Maneka Gandhi. Article 39A, which reads:
Equal justice and free legal aid.- The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
was regarded as an interpretative tool for Article 21 in Hoskot. A partial statutory implementation of the mandate has found expression in Section 304 of the new Code of Criminal Procedure which has enjoined providing of legal , aid 'in a trial before the court, of session'. In Hoskot it was however held that in other situations as well courts cannot be inert in the fact of Articles 21 and 39A. Let it be said at this stage to the credit of this State that though the old Cr. P. C, had not, contained any provision for legal aid, Rule 19 of the Assam Law Department Manual did speak of providing legal aid, of course, only where the accused was committed for trial of a charge of murder. Even so. it was a lead given by this State in this regard. This Court however had not remained contented in seeing that legal aid is provided in a murder case only where it is specifically provided for. A Bench speaking through Goswami, C. J. as he then was, the State v. Aji Peyang, Assam LR (1970) Assam 90, had stated that:
We cannot countenance the situation of seeing under our jurisdiction trial of a person facing the extreme penalty of law without the aid of Counsel when he is unable to engage one.
2. Hoskot however contains a very bold pronouncement in this regard. It is held in no uncertain terms that providing of legal aid is a State's duty and not Government's charity. As to in which type of cases legal aid should be given, Krishna Iyer, J., observed as below (Para 24):
Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court.
3. The country was to see bolder pronouncement from Bhagwati, J. In one of the Hussainara cases : 1979CriLJ1045 , the court observed that:
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 arid 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'. After referring to Article 39A. Bhagwati. J. further observed (para 7);
This is a 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 incommunicado 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, provided of course....
In another Hussainara case : 1979CriLJ1052 Bhagwati. J., took a step further and reminded that it was 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 incommunicado situation to have free legal services provided to him. He said, let it not be forgotten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Legal aid was described as nothing else but equal justice in action. It was then observed that if free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21.
4. Harder cases were yet to come before the court. The Bhagalpur blinding cases evoked strong resentment in all conscience and so the court in Khatri v. State of Bihar : 1981CriLJ597 , lamented that despite the law having been declared as far back as 9th March, 1979 that the right to free legal service is clearly an essential ingredient of reasonable, fair and just procedure, most of the States in the country had not taken note of that. When plea of financial constraints was mentioned on behalf of the State of Bihar, Bhagwati. J. could not countenance it and observed that a State could not avoid its constitutional obligation to provide free legal services to the poor by pleading financial or administrative inability. The stage from which legal aid was to be made available was said to be from the first time an accused is produced before the Magistrate because the jeopardy to the personal liberty arises as soon as a person is arrested and produced before a Magistrate. The only qualification recognised was that (para 5):
the offence charged against the 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 the ends of social justice require that he should be given free legal representation.
While amplifying this it was stated that there may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse or the like nature where social justice may require that free legal services need not be provided by the State.
5. If gives us pleasure in recording that before the Supreme Court had held as above, this Court speaking through Lahiri. J., had held earlier in (Kuthu Goala v. State of Assam 1981 Cri. LJ 424 (Gauhati), after referring to Nandini Satpathy v. P.L. Dani : 1978CriLJ968 , that fat p. 430):
if free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to a needy person it should begin from the moment when a poor and needy person is apprehended by the police. It is useless to allow the roots to dry and thereafter to water the plant. Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality.
6. The petitioners in this case have made a grievance that they were denied legal assistance not only from the date of very first production but during the course of the trial also. It has been averred that they had verbally prayed the learned trial court to give them legal assistance as they were too poor to engage a lawyer, but the same was refused by stating that legal service could be provided in serious cases only, by which the trial court might have meant cases triable by a court of session. In the present case, the charge against petitioner Achyut was under Section 325, and under Section 323 against Pratap. Of course, at the close of the trial both the petitioners have been convicted under Section 323 and sentenced to a fine of Rs. 50/- each, in default to S. I. for 7 days. This matter which is otherwise run-of-'the mill type, has been examined by a Division Bench because the question of free legal aid Was involved. We would therefore confine ourselves to this aspect only.
7. Shri Sarma appearing for the petitioners took us through the aforesaid case law and submitted that as Section 325 I.P.C. is punishable with imprisonment for 7 years and fine, it was incumbent on the part of the trial Court to have provided the petitioners with legal aid for want of which the trial has stood vitiated.
8. Though there is nothing on record to show if the petitioners had asked for legal aid, that is not material in view of Khatri (1981 Cri LJ 470) (SC), because as stated therein (Para 5):
it would 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 in its purpose. 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 abtain free legal services at the cost of the State.
The question therefore is not whether legal aid had been asked for or not, but whether the denial of the same for any reason whatsoever has rendered the trial non est in the eye of law. From what has been stated above it is clear that free legal service is not to be made available in all cases - it would much depend on the circumstances of the case. In Hoskot, sufferance of 'public justice' was said to be the criterion, as per Hussainara 'the ends of Justice' is the guiding star, and Khatri spoke of 'social justice'' in this regard. Thus, every case which ends with imposition of small fine cannot be held to be hit by, Article 21 because of the denial of free legal service. If each and every trial were to be held bad for want of legal service, each and every detention in judicial custody would be so. But it is doubtful if a person could approach the High Court for .writ of Habeas Corpus on the ground that he has been kept in detention without providing legal aid. Such a detention cannot also perhaps be regarded as wrongful confinement and a suit for damages against the authorities may not He. Of course, a flagrant violation of this requirement in some cases may lead the court to take a different view.
9. In the case at hand though one of the petitioners was charged under Section 325. the ultimate conviction of both is under Section 323 with a fine of Rs. 50/- as sentence. The facts are rather simple and speak of assault on two persons. Only 2 PWs were examined in the case. We have noted that petitioner Achyut has been acquitted of the charge under Section 325 because of lack of medical evidence. But a perusal of the records shows that Tunu Begum (one of the injured) had been medically examined and even the X-ray had revealed a fracture. In such a case, to set aside the present conviction and to remit the case for fresh trial would really put the petitioners in greater jeopardy, which we have regarded neither advisable, nor in the interest of justice, inasmuch as an indigent person seeking for justice because of denial of legal services cannot be put on a more perilous course. By relying on State of U.P. v. Kapil Das : 1972CriLJ1214 , it is however submitted by Shri Sarma that even while setting aside the conviction, we may not remand the matter. In that case remand was refused because the respondent was kept under suspension for 20 years. Of course, in Chajoo Ram v. Radhey Shyam : 1971CriLJ1096 lapse of 10 years in a case of perjury, and in Machander v. State of Hyderabad : 1955CriLJ1644 delay of over 4-1/2 years in a murder case had acted as repellent in this regard. This shows that no rigidity is to operate. In the case at hand, the occurrence is of 20-4-1979 and the date of conviction is 30-4-1981. Not much time has thus passed. Moreover, the fact that Achyut was acquitted under Section 325 because of non-examination of the doctor whereas an injury report showing grievous hurt is on record is a factor which really calls for remand, as a person who makes a grievance of injustice to him during the course of trial must face the same wholeheartedly and be prepared to receive his due sentence for the acts really committed by him. He cannot have the best of both the worlds, obliteration of his guilt due to violation of procedural safeguard, and escape from further proceeding with full safeguard. So, if we would have set aside the conviction because of non-providing of legal aid. it would have been difficult for us on the facts of the case not to remand the case for fresh trial.
10. Because of all the above, we would hold that the present is not a case in which conviction should be set aside for denial of legal aid. Let the matter be placed before a learned single Judge to consider other points raised in the revision.
T.C. Das, J.
11. I agree.