MALATI SARDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal petition had been forwarded from the Correctional Home in 2010 on behalf of the appellant (in custody) challenging the judgment and order of conviction and sentence passed by the trial Court on 3.7.2010. On 29.6.2011, the matter appeared in the list when a learned Single Judge of this Court requested the Public Prosecutor to appoint a lawyer from the State panel to prosecute the appeal. Thereafter, no steps were taken and finally the appeal was placed before me again on 13.7.2017 when I requested Mr. Deep Chaim Kabir, an empaneled lawyer of the State Legal Services Authority to appear in the matter and to take necessary steps in the matter.<þ> 2. Mr. Kabir submits that in all probability the appellant had served out her sentence in the meantime.<þ> 3. Under such circumstances, report is called for from the State as to whether the appellant has served out her sentence in the meantime or not. Such report is to be filed on the next date of hearing.<þ> 4. The aforesaid state of affairs persuade me to note with concern the dismal failure in the matter of extending effective legal aid/assistance to convicts in prosecution of appeals from judgment and orders of conviction and sentence.<þ> 5. The factual matrix of this case shows that although the appeal papers have been forwarded from the Correctional Home, prompt appointment of lawyer either from defense panel of the State or the legal services authority had not been made and no steps had been taken in the matter for the last six years to prosecute the appeal on behalf of the appellant.<þ> 6. Right to prefer an appeal is not only a statutory right but a basic human right of every convict in terms of Article 14(5) of International Covenant of Civil and Political Rights to which the country is a signatory. Right to free legal aid/assistance to an accused is a fundamental right implicit in the requirement of fair, just and reasonable procedure enshrined under Article 21 read with Article 39A of the Constitution of India. Such right is also statutorily expressed in section 304 Cr.P.C. and the provisions of the Legal Services Authorities Act, 1987 (hereinafter referred to as Act of 1987). The latter legislation provides for appropriate statutory mechanisms to extend prompt and effective legal aid to any person in custody as enumerated in section 12 of the said Act of 1987 which would include a convict. It is no longer res integra that the Magistrate/Judge has a duty to inform an accused of his right to be 3 defended by a lawyer appointed at the expense of the State from the stage of his first production before the Court. Failure to do so, would tantamount to dereliction of duty on the part of the judicial officer exposing him to departmental proceeding and would even vitiate the trial if such breach occurred in the course of trial [See <ß><ï>Md. Ajmal Md. Amir Kasab @ Abu Mujahid v. State of Maharashtra, (2012) 9 SCC 1 (para-474, 477 and 478)]. Hence, duty to inform an accused of his right to free legal aid while facing a criminal charge is a species of 'fair trial rights' acknowledged as an integral component of just, fair and reasonable procedure enshrined under Article 21 of the Constitution of India.<þ> 7. In <ß><ï>Rajoo @ Ramakant v. State of Madhya Pradesh, (2012) 8 SCC 553 the Apex Court held that the fundamental right to legal aid to an accused is not confined to the trial stage alone but would also extend to the appellate stage. The Court observed as follows:-<þ>