DIPSINH KESHRISINH BARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) WHEN this matter was called out, learned advocate Mr. Bhatt (appointed) prayed for some time to enable him to fully prepare as he has not been able to go through the Record & Proceedings of the case. In this regard, making general grievance, Mr. Bhatt further submitted that in High Court whenever any Advocate is appointed to defend poor accused what he is given is only the copy of the impugned judgment and order of the conviction and sentence passed by the trial courts. Except this bare minimum, there is no other material made available to him by way of evidence to verify, test and ultimately challenge the reasons for conviction for preparing appropriate memo of appeal. Under such circumstances, according to Mr. Bhatt, no doubt, the concerned advocate as of duty does go to the office, peruses the record in hurry, takes down some notes and on the basis of the same, ultimately makes his submissions before the Court, but then such preparation in a huff is not all times to his heart satisfaction and as a result in a given case for want of proper preparation the convict prisoner was likely to be prejudiced, if his appeal is summarily dismissed.

(2.) THERE is indeed some substance in whatever has been submitted by Mr. Bhatt. In fact, appeals in serious cases wherein the life imprisonment and/or for that purpose any other major sentence is imposed on accused require quite thorough and elaborate preparation and indeed that cannot be done in a huff and hurry by sitting in department under pressure and an atmosphere none too congenial to concentrate, understand and prepare the case for admission which many a times is quite challenging task !! These are not the matters of 'touch and go' or 'open and shut games'. !! It is really little hard, inconvenient and therefore difficult for learned advocate to prepare a brief under tension and pressure admist working staff members in the Criminal Branch. Now, this difficulty of the learned members of the Bar (appointed), being quite genuine, is indeed quite understandable. Accordingly, the grievance voiced by Mr. Bhatt needs serious and immediate consideration to salvage the situation ultimately in favour of handicapped poor accused in the overall interest of justice !! In our opinion, when we are giving legal aid to the accused persons none should labour under some misconception that thereby we are obliging the accused. No. Not the least. Certainly not. Rather all courts are under the Constitutional obligation to see to it that poor accused is not denied justice because of his poverty, and for want of proper legal assistance and accordingly, free legal aid is given to him. It is not for mere show or idle formality rather it is because of our Constitutional obligation that we are making free legal aid available to the needy. In order to make the said legal aid matter quite effective and matter of substance and not mere form, not only accused should be given free legal aid by appointing an advocate but that advocate for him should be quite competent and must be invariably provided with bare minimum requirement viz., the evidence recorded before the Trial Court and material documents to adequately prepare himself. Now unless some solution is provided from the grass-root level, nothing substantial and effective was going to happen !! Precisely, in this view of the matter, in the first instance, in cases wherein before the Trial Court the accused are defended by the appointed advocates, then in those cases after the evidence of the witness is recorded, typed or zeroxed, copy of such evidence must be invariably and immediately given free of cost to the accused so that defending advocates (appointed) can effectively defend his case. The Public Prosecutor shall also be given such facility. It is hardly required to be emphasized that in absence of the evidence papers, it is indeed not possible for any advocate to effectively represent and defend the accused. In that view of the matter, we by this order direct all the Criminal Courts of the State that they shall as by way of their foremost duty to immediately furnish typed or zerox readable copies of the evidence of the witnesses and the relevant documents to learned advocates (appointed) and learned Public Prosecutors. The Registrar is accordingly hereby directed to immediately circulate the copy of this Order to all the Criminal Courts of the State which in turn shall see to it that with immediate effect, copies of the evidence alongwith the material documents are furnished to all learned advocates (appointed) during the course of the trial. Not only that but after the trial is over, irrespective of order of conviction or acquittal, the concerned advocate (appointed) shall hand over the entire bunch of evidence-papers alongwith the police papers to the convict prisoner and the jail authority, in cases of conviction shall see to it that while forwarding the appeal from the jail to the higher forum, he also forwards alongwith the same, a copy of evidence so that once again advocate appointed in higher-forum has the benefit of studying the evidence while preparing and arguing the matter before the Court. Not only that but it shall also be the duty of all the appointed advocates to enlist the infirmities in the reasonings of the Trial Court while reaching ultimate conclusion of conviction, prepare brief, appeal-memo and hand-over, the same alongwith other case papers to the Clerk of the court who in turn shall see to it that the same immediately reaches to the concerned accused in the jail.