MANLCK LAL KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this application under Article 227 of the Constitution of india read with Section 482 of the Code of criminal Procedure 1973 Mr. Himansu De, learned Advocate for the petitioner accused, has raised a point of importance, namely, if the Special Court under the Bengal Criminal Law Amendment (Special courts) Act 1949 is to appoint a lawyer for the defence of the accused in a case before him, at the costs of the State, in view of the provisions of Section 304 of the Code of Criminal Procedure on account of the poverty of the accused ? The point has arisen in this way.

(2.) THE accused petitioner is a Government servant. He is facing trial in Case No. 6 of 1982 before the 5th Additional Special court, Calcutta, on charges under Sections 409 and 120b of the Indian Penal Code. Admittedly, the accused has been placed under suspension and is getting a subsistence allowance of Rs. 667/- per month. He, prayed before the Special Court for engagement of an advocate for his defence at the costs of the State in view of the provisions of Section 304 of the Code of criminal Procedure On the ground that he was unable to pay any advocate his/her reasonable remuneration because of the big family he had to maintain and the poor subsistence allowance he was allowed per month. It was contended that Special court was for all practical purposes a sessions Court and there is no reason why the provisions of Section 304 of the Code should not be invoked. Mr. De, learned advocate took such a plea before the special Court, but the Social Court overruled his contention. Mr. De has therefore come up before us to raise the identical contention. Mr. De, first of all, placed before us the observations of the Supreme court in the cases of Hussainara Khatoon and others -versus- The Home Secretary, state of Bihar, Patna reported in AIR 1979 sc 1369 and Khatri and others versus - The State of Bihar and others reported in air 1981 SC 928 and contends that in view of the provisions of Article 21 of this constitution of India, 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. He contends further that the right to free legal service is 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 of the Constitution of India. For clarification of the import and spirit of Article 21 of the Constitution of India, Mr. De, learned Advocate, relies on the observations of the Supreme Court in the two cases noted above. We should note immediately that in those cases the parsons concerned were detained in jail. They ware therefore handicapped in the matter of engaging lawyers of their choice. Their handicap aggravated because of their poverty arising out of their long detention in jail. In the case before us the accused has been enlarged on bail and he has been getting a subsistence allowance admittedly of Rs. 667/- per month. We are therefore satisfied that the observations of the supreme Court relied on by Mr. De, the learned Advocate have little applicability to the facts and circumstances of the present case.

(3.) MR. DE, learned Advocate, place before us the provisions of Section 5 (3) of the west Bengal Criminal Law Amendment (Special Courts) Act 1949 as amended by west Bengal Criminal Law Amendment (Special Courts) Amending Act 1982. The said sub section (3) reads as follows :-