Right To Get Legal Aid Is Accused's Fundamental Right: SC Issues Directions On Role Of Public Prosecutors & Appointment Of Legal Aid Lawyers

The Supreme Court observed the right to get legal aid is a fundamental right of the accused.

The Court emphasized that, when an accused is not represented by an Advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid.

The Court observed thus in a Criminal Appeal filed by the accused against the judgment of the High Court by which he was convicted for the offence of rape and murder.

The three-Judge Bench comprising Justice Abhay S. Oka, Justice Ahsanuddin Amanullah, and Justice Augustine George Masih observed, “the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution..it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused..."

The Bench added that, even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any Advocate, it is incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused.

Senior Advocate M. Shoeb Alam and AOR Talha Abdul Rahman (Amicus Curiae) appeared for the Appellant/Accused while Senior AAG K. Parameshwar appeared for the Respondent/State.

Brief Facts -

As per the prosecution case, the victim was ten years old at the time of the incident. One day in May 2009, the victim and her first cousin went to a pasture to graze her goats. As the victim was thirsty, she went near a tubewell cabin and the Appellant/accused was working as an operator there. The victim requested him to provide drinking water and it was alleged that with evil intentions, the accused took her inside the cabin, committed rape on her and thereafter, allegedly murdered her. The victim’s cousin saw the incident and hence, she narrated the story to the victim’s father. The father went to the tubewell cabin and found dead body of his daughter hidden in a haystack. On being questioned, the accused fled from the spot and hence, an FIR was registered against him.

The Trial Court convicted him for the offences punishable under Sections 376, 302, and 201 of the Indian Penal Code (IPC) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). The Trial Court imposed capital punishment. The High Court heard the Reference under Section 366 of the Criminal Procedure Code (CrPC) with an Appeal preferred by the accused. Though the High Court confirmed the conviction, the death penalty was set aside and the accused was sentenced to undergo life imprisonment for the remainder of his natural life subject to the exercise of powers of grant of remission or grant of clemency by the Constitutional functionaries. Hence, this was challenged before the Apex Court.

The Supreme Court in view of the above facts, said, “In a given case, the witnesses may have deposed in a language not known to the accused. In such a case, if the material circumstances appearing in evidence are not put to the accused and explained to the accused, in a language understood by him, it will cause prejudice to the accused.”

The Court further noted that the stage of the accused leading defence evidence arises only after his statement is recorded under Section 313 of the CrPC and unless all material circumstances appearing against him in evidence are put to the accused, he cannot decide whether he wants to lead any defence evidence.

The Court, therefore, concluded and issued the following directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers –

• It is the duty of the Public Prosecutor to assist the Trial Court in recording the statement of the accused under Section 313 of the CrPC.

• An accused who is not represented by an Advocate is entitled to free legal aid at all material stages starting from remand.

• At all material stages, including the stage of framing the charge, recording the evidence, etc., it is the duty of the Court to make the accused aware of his right to get free legal aid.

• Only those Advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate.

• The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed.

• It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice.

• In the cases where the offences are of a very serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance.

• The right of the accused to defend himself in a criminal trial is guaranteed by Article 21 of the Constitution of India.

• If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective.

Accordingly, the Apex Court allowed the Appeal, set aside the impugned Judgment, and acquitted the accused.

Cause Title- Ashok v. State of Uttar Pradesh (Neutral Citation: 2024 INSC 919)

Appearance:

Appellant: Senior Advocate Shoeb Alam, AOR Talha Abdul Rahman, Advocates Dev Sareen, M Shaz Khan, Sudhanshu Tewari, Rafid Akhter, and Faizan Ahmad.

Respondent: Sr. AAG K Parmeshwar and AOR Sakshi Kakkar.

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