September 30, 2022

Khatri v. State of Bihar I- Right to be informed of legal aid

The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State

The case of ‘Khatri v. state of Bihar’[1] arose from an unfortunate and brutal incident of police atrocities, where Police blinded the 24 prisoners by pouring acid in their eyes. This is also known as ‘Bhagalpur blinding case’. The incident shook the conscience of the country and the matter was also discussed in the parliament.

A writ petition was also filed in the Supreme Court out of the facts of this case. There are two judgements on the case. In the first judgement, the court considered some crucial issues regarding the prisoners’ legal and health battle and also the carelessness of state of Bihar and lower judiciary in dealing the matter of such extant of brutality.

The Health Battle

When the incident came in the notice of the country, blinded prisoners were admitted in Rajendra Prashad Ophthalmic Institute, New Delhi. When the case came before the court, the blinded prisoners who were under-going treatment were likely to be discharged from that Institute since their vision was so totally impaired that it was not possible to restore it by any medical or surgical treatment.

So, the question was that where they can go?

Mrs. Hingorani, counsel on behalf of the blinded prisoners, expressed the apprehension that it might not be safe for them to go back to Bhagalpur, particularly when investigation into the offences of blinding was still in progress and some arrangement should, therefore, be made for housing them in New Delhi at the cost of the State.

The court agreed with the counsel and found it justified that at least until the next date of hearing, it would be desirable not to send the blinded prisoners back to Bhagalpur. The court, therefore, suggested that the blinded prisoners who are discharged from the Rajendra Parshad Ophthalmic Institute, New Delhi should be kept in the Home which was being run by the Blind Relief Association of Delhi on the Lal Bahadur Shastri Marg, New Delhi, and the State of Bihar should bear the cost of their boarding and lodging in that Home.

The battle of ‘living’

After such an incident of eye murdering, the prisoner had nowhere to find means to live and job. It was also necessary form the point of human right and natural law that prisoner should get compensation for their lost.

The question of compensation was raised by Mrs. Hingorani on behalf of the blinded prisoners was whether the State was liable to pay compensation to the blinded prisoners for violation of their Fundamental Right under Article 21 of the Constitution. She contended that the blinded prisoners were deprived of their eye sight by the Police Officers who were Government servant acting on behalf of the State and since this constituted a violation of the constitutional right under Article 21, the State was liable to pay compensation to the blinded prisoners.

However, Mr. K. G. Bhagat on behalf of the State, contended that it was not yet established that the blinding of the prisoners was done by the Police and that the investigation was in progress and he further urged that even if blinding was done by the police and there was violation of the constitutional right enshrined in Article 21, the State could not be held liable to pay compensation to the persons wronged.

 On these rival contentions, the court noticed that it can certainly injunct the State from depriving a person of his life or personal liberty except in accordance with procedure established by law, but if life or personal liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right to life and personal liberty.

These were the questions of long discussion, therefore, the court decided to hear it in next hearing.

The battle for Justice

From the records of the state which it supplied to the court from time to time, the court noticed that neither at the time when the blinded prisoners were produced for the first time before the judicial magistrate nor at the time when the remand orders were passed, was any legal representation available to most of the blinded prisoners.

The records of the judicial magistrates showed that no legal representation was provided to the blinded prisoners, because none of them asked for it nor did the judicial magistrates enquire from the blinded prisoners produced before them either initially or at the time of remand whether they wanted any legal representation at State cost. The only excuse for not providing legal representation to the blinded prisoners at the cost of the State was that none of the blinded prisoners asked for it.

The result was that barring two or three blinded prisoners who managed to get a lawyer to represent them at the later stages of remand, most of the blinded prisoners were not represented by any lawyers and save a few who were released on bail, and that too after being in jail for quite some time, the rest of them continued to languish in jail.

Hussainara Khatoon Case

The court expressed its displeasure over this state of affairs that permitted to continue such things despite the decision of this Court in Hussainara Khatonn’s case[2]. This Court has pointed out in Hussainara Khatoon’s case (supra) which was decided as far back as 9th March, 1979 that the right to free legal services is clearly 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 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

 The court displeased with this disregard of the decision of the highest court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding through-out the territory of India.

Free legal aid at the cost of the State

Mr. K. G. Bhagat on behalf of the State agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused but he suggested that the State might find it difficulty to do so owing to financial constraints.

But the court disagreed with this contention and pointed out that the State of Bihar cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigenous and whatever is necessary for his purpose has to be done by the State.

In support of this view, the court referred Rhem v. Malcolm where it was said that,

The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty

and to quote the words of Justice Blackmum in Jackson vs. Bishop[3]:

“humane considerations and constitutional requirements are not in this day to be measured by dollar considerations.”

At which stage, free legal aid may be received?

This position was cleared by the court,

“this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody.

That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”

Right to be informed about legal right

According to the court, this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose.

The court, therefore, made it clear that,

The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State

Directions of the court

In the case, the court directed-

  • the magistrates and Session Judges of the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
  • Unless he is not willing to take advantage every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation.
  • The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation.

Where free legal aid may be denied?

There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.

The court reprimanded the judicial magistrates for not showing enough care in the case

Not producing the prisoners before the magistrates

The court expressed its unhappiness at the lack of concern shown by the judicial magistrates in not enquiring from the blinded prisoners, when they were first produced before the judicial magistrates and thereafter from time to time for the purpose of remand, as to how they had received injuries in the eyes

The court said that, the provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police.

The court stricted on judicial magistrate, when it said,

“one thing is clear that in the case of almost all the blinded prisoners, the forwarding report sent by the Police Officer in Charge stated that the accused had sustained injuries and yet the judicial magistrates did not care to enquire as to how injuries had been caused. This can give rise only to two inferences; either the blinded prisoners were not physically produced before the judicial magistrates and the judicial magistrates mechanically signed the orders of remand or they did not bother to enquire even if they found that the prisoners before them had received injuries in the eyes.”

Not caring the decision on legal aid

The court noticed from the record of the court that one blinded prisoner by the name of Umesh Yadav sent a petition to the District and Sessions Judge, Bhagalpur, on 30th July, 1980 complaining that he had been blinded by Shri B. K. Sharma, District Superintendent of Police and since he had no money to prosecute this police officer, he should be provided a lawyer at Government expense so that he might be able to bring the police atrocities before the court and seek justice.

Ten other blinded prisoners also made a similar petition and all these petitions were forwarded to the District & Sessions Judge on 30th July, 1980.

But, the District & Sessions Judge by his letter dated 5th August, 1980, addressed to the Superintendent of the Bhagalpur Central Jail stated that there was no provision in the Code of Criminal Procedure under which legal assistance could be provided to the blinded prisoners who had made a petition to him and that he had forwarded their petitions to the chief judicial magistrate for necessary action. The Chief Judicial Magistrate also expressed his inability to do anything in the matter.

On this lack of care, the court said that

“The information appearing in these petitions disclosed very serious offences alleged to have been committed by the Police and the Chief Judicial Magistrate should not have nonchalantly ignored these petitions and expressed his inability to do anything in the matter.”

Final conclusion of the court

While concluding the judgment, the court directed the state government to inform the court clearly and precisely as to what steps they took after 30th July, 1980 to bring the guilty to book and to stop recurrence of such atrocities.

Reference

Khatri v. State of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627


[1] 1981 SCR (2) 408

[2] [1979] 3 S.C.R. 532

[3] 404 F. Supp. 2d, 571