PETITIONER:
KHATRI AND OTHERS
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT19/12/1980
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
SEN, A.P. (J)
CITATION:
1981 SCR (2) 408 1981 SCC (1) 627
ACT:
Right to free legal services to a person accused of an
offence-Duty of the State explained Constitution of India,
Articles 21 and 22.
HEADNOTE:
Expressing displeasure over disregard of the decision
of the Supreme Court by the State of Bihar, the Court
^
HELD: (1) The right to free legal services is clearly
an essential ingredient of reasonable, fair and just
procedure for a person accused of an offence and it is
implicit in the guarantee of Article 21 and the State is
under a constitutional mandate to provide a lawyer to an
accused person if the circumstances of the case and the
needs of justice so require, provided of course the accused
person does not object to the provision of such lawyer. The
State should provide free legal aid to an accused person who
is unable to secure legal services on account of indigence
and whatever is necessary for this purpose has to be done by
the State. It cannot avoid its constitutional obligation to
provide free legal services to a poor accused by pleading
financial or administrative liability. [412C-D, F-G]
Hussainara Khatoon v State of Bihar [1979] 3 S.C.R.
532, reiterated.
Rhem v. Malcolm, 377 F. Supp. 995; Jackson v. Bishop
404 F. Supp. 2d, 571, quoted with approval.
(2) The State is under a constitutional obligation to
provide free legal services not only at the stage of trial
but also at the stage when the accused is first produced
before the magistrate as also when he is remanded from time
to time. [413C-D]
(3) But even this right to free legal services would be
illusory for an indigent accused unless the magistrate or
the Sessions Judge before whom he is produced informs him of
such right. 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 of its purpose. The
magistrate or the sessions judge before whom the 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. Unless
he is not willing to take advantage, every other State in
the country should make provision for grant of free legal
services to an accused who is unable to engage a lawyer on
account of reasons such as poverty, indigence or
incommunicado situation. The only qualification would be
that 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 needs of social justice require that he should be given
free legal representation. 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 services need not
be provided by the State. [413D, E-F, H, 414A-B]
409
(4) The State and its police authorities should see to
it that the constitutional, and legal requirement to produce
an arrested person before a judicial magistrate within 24
hours of the arrest is scrupulously observed. [414C-D]
(5) The provision inhibiting detention without remand
is a very healthy provision which enables the magistrates to
keep check over the police investigation and it is necessary
that the magistrates should try to enforce this requirement
and where it is found to be disobeyed come down heavily upon
the police.[414F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 5670 of 1980.
(Under Article 32 of the Constitution)
Mrs. K. Hingorani and Miss Rekha Tiwari for the
Petitioner.
K. G. Bhagat and D. Goburdhan for the Respondent.
The Order of the Court was delivered by
BHAGWATI, J.- This case has now come before us after
service of notice on the State of Bihar. When this case was
taken up for hearing by us on 2nd December, 1980, we
expressed our displeasure that the State of Bihar had not
chosen to appear in answer to the notice, but this
expression of displeasure was made by us on the assumption
that the notice was served on the State of Bihar. We are
however informed by Mr. K. G. Bhagat, learned advocate,
appearing on behalf of the State of Bihar that the notice of
the writ petition was served upon the State only on 6th
December, 1980 and that is the reason why it was not
possible for the State to appear before us on 2nd December,
1980. We accept this explanation offered by Mr. K. G. Bhagat
and exonerate the State of Bihar from remissness in
appearing before the Court on 2nd December, 1980.
The State has filed before us a counter affidavit sworn
by Tarkeshwar Parshad, Under Secretary, Home (Police)
Department of the State Government giving various
particulars required by us by our order dated 2nd December,
1980. We have also before us the counter affidavit filed by
Jitendra Narain Singh, Assistant Jailer, Bhagalpur Central
Jail, on behalf of the State and this affidavit gives
certain other particulars required by us. The State has also
in addition to these particulars, filed statements giving
various particulars in regard to the blinded prisoners drawn
from the records of the judicial magistrates dealing with
their cases. The District and Sessions Judge has also
addressed a letter to the Registrar (Judicial) of this Court
stating that for the reasons given in his letter, no
inspection of the Bhagalpur Central Jail has been carried
out by the District and Sessions Judge in the year 1980. The
Registrar (Judicial) has also furnished to us copies of the
statements of the blinded prisoners
410
and B. L. Das, former Superintendent of the Bhagalpur
Central Jail, recorded by him pursuant to the order of this
Court dated 1st December, 1980. Full and detailed arguments
have been advanced before us on the basis of the particulars
contained in these documents, but we do not, at this stage,
propose to deal with the arguments in regard to each of the
blinded prisoners and we shall examine only the broad
contentions advanced before us, leaving the arguments in
regard to each specific blinded prisoner to be dealt with at
a later stage when the writ petition again comes up for
hearing.
Before we deal with the main contentions urged before
us on behalf of the parties, we must dispose of one serious
question which raises a rather difficult problem and which
has to be resolved with some immediacy. The problem is not
so much a legal problem as a human one and it arises because
the blinded prisoners who are under-going treatment in the
Rajendra Prashad Ophthalmic Institute, New Delhi are likely
to be discharged from that Institute since their vision is
so totally impaired that it is not possible to restore it by
any medical or surgical treatment, and the question is
wherever they can go. Mrs. Hingorani, on behalf of the
blinded prisoners, expressed the apprehension that it may
not be safe for them to go back to Bhagalpur, particularly
when investigation into the offences of blinding was still
in progress and some arrangement should, therefore, be made
for housing them in New Delhi at the cost of the State. We
cannot definitely state that the apprehension expressed by
Mrs. Hingorani is totally unfounded nor can we say at the
present stage that it is justified, but we feel that at
least until the next date of hearing, it would be desirable
not to send the blinded prisoners back to Bhagalpur. We
would, therefore, suggest that the blinded prisoners who are
discharged from the Rajendra Parshad Ophthalmic Institute,
New Delhi should be kept in the Home which is being run by
the Blind Relief Association of Delhi on the Lal Bahadur
Shastri Marg, New Delhi and the State of Bihar should bear
the cost of their boarding and lodging in that Home. We hope
and trust and, in fact, we would strongly recommend that the
Blind Relief Association of Delhi will accept these blinded
prisoners in the Home run by them and look after them until
the next hearing of the petition. The State of Bihar will
pay by way of advance or otherwise as may be required the
costs, charges and expenses of maintaining the blinded
prisoners in such Home
The other question raised by Mrs. Hingorani on behalf
of the blinded prisoners was whether the State was liable to
pay compensation to the blinded prisoners for violation of
their Fundamental Right
411
under Article 21 of the Constitution. She contended that the
blinded prisoners were deprived of their eye sight by the
Police Officers who were Government servant acting on behalf
of the State and since this constituted a violation of the
constitutional right under Article 21, the State was liable
to pay compensation to the blinded prisoners. The liability
to compensate a person deprived of his life or personal
liberty otherwise than in accordance with procedure
established by law was, according to Mrs. Hingorani,
implicit in Article 21. Mr. K. G. Bhagat on behalf of the
State, however, contended that it was not yet established
that the blinding of the prisoners was done by the Police
and that the investigation was in progress and he further
urged that even if blinding was done by the police and there
was violation of the constitutional right enshrined in
Article 21, the State could not be held liable to pay
compensation to the persons wronged. These rival arguments
raised a question of great constitutional importance as to
what relief can a court give for violation of the
constitutional right guaranteed in Article 21. The court can
certainly injunct the State from depriving a person of his
life or personal liberty except in accordance with procedure
established by law, but if life or personal liberty is
violated otherwise than in accordance with such procedure,
is the court helpless to grant relief to the person who has
suffered such deprivation ? Why should the court not be
prepared to forge new tools and devise new remedies for the
purpose of vindicating the most precious of the precious
Fundamental Right to life and personal liberty. These were
the issues raised before us on the contention of Mrs.
Hingorani, and to our mind, they are issues of the gravest
constitutional importance involving as they do, the
exploration of a new dimension of the right to life and
personal liberty. We, therefore, intimated to the counsel
appearing on behalf of the parties that we would hear
detailed arguments on these issues at the next hearing of
the writ petition and proceed to lay down the correct
implications of the constitutional right in Article 21 in
the light of the dynamic constitutional jurisprudence which
we are evolving in this Court.
That takes us to one other important issue which arises
in this case. It is clear from the particulars supplied by
the State from the records of the various judicial
magistrates dealing with the blinded prisoners from time to
time that, neither at the time when the blinded prisoners
were produced for the first time before the judicial
magistrate nor at the time when the remand orders were
passed, was any legal representation available to most of
the blinded prisoners. The records of the judicial
magistrates show that no legal representation was provided
to the blinded prisoners, because none of them asked
412
for it nor did the judicial magistrates enquire from the
blinded prisoners produced before them either initially or
at the time of remand whether they wanted any legal
representation at State cost. The only excuse for not
providing legal representation to the blinded prisoners at
the cost of the State was that none of the blinded prisoners
asked for it. The result was that barring two or three
blinded prisoners who managed to get a lawyer to represent
them at the later stages of remand, most of the blinded
prisoners were not represented by any lawyers and save a few
who were released on bail, and that too after being in jail
for quite some time, the rest of them continued to languish
in jail. It is difficult to understand how this state of
affairs could be permitted to continue despite the decision
of this Court in Hussainara Khatonn’s case. This Court has
pointed out in Hussainara Khatoon’s case (supra) which was
decided as far back as 9th March, 1979 that the right to
free legal services is clearly an essential ingredient of
reasonable, fair and just procedure for a person accused of
an offence and it must be held implicit in the guarantee of
Article 21 and the State is under a constitutional mandate
to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so
require, provided of course the accused person does not
object to the provision of such lawyer. It is unfortunate
that though this Court declared the right to legal aid as a
Fundamental Right of an accused person by a process of
judicial construction of Article 21, most of the States in
the country have not taken note of this decision and
provided free legal services to a person accused of an
offence. We regret this disregard of the decision of the
highest court in the land by many of the States despite the
constitutional declaration in Article 141 that the law
declared by this Court shall be binding through-out the
territory of India. Mr. K. G. Bhagat on behalf of the State
agreed that in view of the decision of this Court the State
was bound to provide free legal services to an indigent
accused but he suggested that the State might find it
difficulty to do so owing to financial constraints. We may
point out to the State of Bihar that it cannot avoid its
constitutional obligation to provide free legal services to
a poor accused by pleading financial or administrative
inability. The State is under a constitutional mandate to
provide free legal aid to an accused person who is unable to
secure legal services on account of indigenous and whatever
is necessary for his purpose has to be done by the State.
The State may have its financial constraints and its
priorities in expenditure but, as pointed out by the court
in Rhem v. Malcolm. “The law does not permit
413
any Government to deprive its citizens of constitutional
rights on a plea of poverty” and to quote the words of
Justice Blackmum in Jackson vs. Bishop, 404 F. Supp. 2d,
571: “humane considerations and constitutional requirements
are not in this day to be measured by dollar
considerations.” Moreover, this constitutional obligation to
provide free legal services to an indigent accused does not
arise only when the trial commences but also attaches when
the accused is for the first time produced before the
magistrate. It is elementary that the jeopardy to his
personal liberty arises as soon as a person is arrested and
produced before a magistrate, for it is at that stage that
he gets the first opportunity to apply for bail and obtain
his release as also to resist remand to police or jail
custody. That is the stage at which an accused person needs
competent legal advice and representation and no procedure
can be said to be reasonable, fair and just which denies
legal advice and representation to him at this stage. 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.
But even this right to free legal services would be
illusory for an indigent accused unless the magistrate or
the Sessions Judge before whom he is produced informs him of
such right. It is common knowledge that about 70 per cent of
the people in the rural areas are illiterate and even more
than that percentage of people are not aware of the rights
conferred upon them by law. There is so much lack of legal
awareness that it has always been recognised as one of the
principal items of the programme of the legal aid movement
in this country to promote legal literacy. 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 of its purpose. The magistrate or the sessions
judge before whom the 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. Unfortunately, the
judicial magistrates failed to discharge this obligation in
the case of the blinded prisoners and they merely stated
that no legal representation was asked for by the blinded
prisoners and hence none was provided. We would, therefore,
direct the magistrates and Session Judges in the country to
inform every accused who appears 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 every
414
other State in the country to make provision for grant of
free legal services to an accused who is unable to engage a
lawyer on account of reasons such as poverty, indigence or
incommunicado situation. The only qualification would be
that 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 needs of social justice require that he should be
given free legal representation. 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
services need not be provided by the State.
There are two other irregularities appearing from the
record to which we think it is necessary to refer. In the
first place in a few cases the accused persons do not appear
to have been produced before the Judicial Magistrates within
24 hours of their arrest as required by Art. 22 of the
Constitution. We do not wish to express any definite opinion
in regard to this irregularity which prima facie appears to
have occurred in a few cases, but we would strongly urge
upon the State and its police authorities to see that this
constitutional and legal requirement to produce an arrested
person before a Judicial Magistrate within 24 hours of the
arrest must be scrupulously observed. It is also clear from
the particulars furnished to us from the records of the
Judicial Magistrates that in some cases particularly those
relating to Patel Sahu, Raman Bind, Shaligram Singh and a
few others the accused persons were not produced before the
Judicial Magistrates subsequent to their first production
and they continued to remain in jail without any remand
orders being passed by the Judicial Magistrates. This was
plainly contrary to law. It is difficult to understand how
the State continued to detain these accused persons in jail
without any remand orders. We hope and trust that the State,
Government will inquire as to why this irregularity was
allowed to be perpetrated and will see to it that in future
no such violations of the law are permitted to be committed
by the administrators of the law. The provision inhibiting
detention without remand is a very healthy provision which
enables the Magistrates to keep check over the police
investigation and it is necessary that the Magistrates
should try to enforce this requirement and where it is found
to be disobeyed, come down heavily upon the police.
We also cannot help expressing our unhappiness at the
lack of concern shown by the judicial magistrates in not
enquiring from the blinded prisoners, when they were first
produced before the judicial magistrates and thereafter from
time to time for the purpose of remand,
415
as to how they had received injuries in the eyes. It is true
that most of the blinded prisoners have said in their
statements before the Registrar that they were not actually
produced before the judicial magistrates at any time, but we
cannot, without further inquiry in that behalf, accept the
ex parte statement of the blinded prisoners. Their
statements may be true or may not be true; it is a matter
which may require investigation. But one thing is clear that
in the case of almost all the blinded prisoners, the
forwarding report sent by the Police Officer In Charge
stated that the accused had sustained injuries and yet the
judicial magistrates did not care to enquire as to how
injuries had been caused. This can give rise only to two
inferences; either the blinded prisoners were not physically
produced before the judicial magistrates and the judicial
magistrates mechanically signed the orders of remand or they
did not bother to enquire even if they found that the
prisoners before them had received injuries in the eyes. It
is also regrettable that no inspection of the Central Jail,
Bhagalpur was carried out by the District & Sessions Judge
at any time during the year 1980. We would request the High
Court to look into these matters closely and ensure that
such remissness on the part of the judicial officers does
not occur in the future.
We would also like to advert to one more matter before
we close and that is rather a serious matter. It appears
from the record that one blinded prisoner by the name of
Umesh Yadav sent a petition to the District and Sessions
Judge, Bhagalpur, on 30th July, 1980 complaining that he had
been blinded by Shri B. K. Sharma, District Superintendent
of Police and since he had no money to prosecute this police
officer, he should be provided a lawyer at Government
expense so that he might be able to bring the police
atrocities before the court and seek justice. Ten other
blinded prisoners also made a similar petition and all these
petitions were forwarded to the District & Sessions Judge on
30th July, 1980. The District & Sessions Judge by his letter
dated 5th August, 1980, addressed to the Superintendent of
the Bhagalpur Central Jail stated that there was no
provision in the Code of Criminal Procedure under which
legal assistance could be provided to the blinded prisoners
who had made a petition to him and that he had forwarded
their petitions to the chief judicial magistrate for
necessary action. The Chief Judicial Magistrate also
expressed his inability to do anything in the matter. It
appears that the Superintendent of the Bhagalpur Central
Jail also sent the petitions of these blinded prisoners to
the Inspector General of Prisons, Patna on 30th July, 1980
with a request that this matter should be brought to the
notice of the State Government. The Inspector General of
Prisons, forwarded these petitions to the Home Department.
The Inspector
416
General of Prisons was also informed by three blinded
prisoners on 9th September 1980 when he visited the Banka
Jail that they had been blinded by the police and the
Inspector General of Prisons observed in his inspection note
that it would be necessary to place the matter before the
Government so that the police atrocities may be stopped. The
facts disclose a very disturbing state of affairs. In the
first place we find it difficult to appreciate why the Chief
Judicial Magistrate to whom the petitions of these blinded
prisoners had been. forwarded by the District & Sessions
Judge did not act upon the complaint contained in these
petitions and either take cognizance of the offence revealed
in these petitions or order investigation by the higher
police officers. The information appearing in these
petitions disclosed very serious offences alleged to have
been committed by the Police and the Chief Judicial
Magistrate should not have nonchalantly ignored these
petitions and expressed his inability to do anything in the
matter. But apart from that, one thing is certain that
within a few days after 30th July 80 the Home Department did
come to know from the Inspector General of Prisons that
according to the blinded prisoners who had sent their
petitions, they had been blinded by the Police, and from the
inspection note of the Inspector General of Police it would
seem reasonable to assume that he must have brought the
matter to the notice of the Government. We should like to
know from the Inspector General of Prisons as to who was the
individual or which was the department of the State
Government to whose notice he brought this matter and what
steps did the State Government take on receipt of the
petitions of the blinded prisoners forwarded by the
Inspector General of Prisons as also on the matter being
brought to their attention by the Inspector General of
Prisons as observed by him in his inspection note. We should
like the State Government to inform us clearly and precisely
as to what steps they took after 30th July, 1980 to bring
the guilty to book and to stop recurrence of such
atrocities. We want to have this information because we
should like to satisfy ourselves whether the blindings which
took place in October 1980 could have been prevented by the
State Government by taking appropriate steps on receipt of
information in regard to the complaint of the blinded
prisoners from the Inspector General of Prisons.
We would direct the State Government to furnish us full
and detailed particulars in this behalf before the next
hearing of the writ petition.
The writ petition will now be taken up for further
hearing on 6th January, 1981.
S.R. Petition adjourned.
417