MARTIN ALIAS TAMILSELVAN Vs. STATE

JUDGEMENT

(1.) A short but important question that arises for our consideration in the criminal appeal and the writ petitions is whether the accused, in the facts and circumstances of the case, would be entitled to engage the pleaders of their choice and such pleaders are entitled to the remuneration from the State and if so, what could be the quantum. The circumstances under which the criminal appeal and the writ petitions came to be filed would be dealt with in the later portion of the judgment. However, the appellants in the criminal appeal are facing trial before the Special Court for POTA offences, Poonamallee and the accused covered in the writ petitions are facing trial before the Special Court for Exclusive Trial of Bomb Blast Cases. Poonamallee for heinous crime and they have been defended by the pleaders appointed by them without reference to any orders passed by the Court of Sessions or this Court. In such circumstances, whether the pleaders who have represented the accused would be entitled to the remuneration from the State.

(2.) For deciding the above question, the entitlement of the accused to engage the pleaders of their choice and if the accused are able to satisfy this Court that they do not have sufficient means to pay the remuneration to the pleaders, the following legal right of the accused must be considered.

(3.) An accused is entitled to a fair trial in accordance with the principles of fundamental justice that requires funded pleader to be provided, if the accused wishes a pleader, but cannot pay a pleader. The object for a provision of a pleader to a disadvantaged accused is to minimize the imbalance in the adversarial system, where the accused is pitted against the awesome prosecutory machinery of the State. In our criminal jurisprudence, the presumption of innocence -being innocent until proven guilty-is a legal right that the accused in criminal trials is entitled to. This presumption is seen stem from the Latin legal principle, namely ei incumbit probatio qui dicit non qui negat -the burden of proof rests on the person who asserts, not on who denies. Free legal service to the poor and the needy is an essential element of "reasonable, fair and just" procedure. The right of such reasonable, fair and just procedure could be traced to the fundamental right guaranteed under Article 21 of the Constitution of India. Article 39A emphasizes that the free legal service is an inalienable element of reasonable, fair and just procedure.