Prisoners have no remedy against absentee counsels and little
control over the adverse situation that follows. In these
circumstances the prisoner becomes a victim of “undeserved
want” within the meaning of Section 12 (e) of the Legal Services
Authorities Act, 1987 who is entitled to legal aid. Refusal of
legal aid to this class of prisoners would entail denial of justice.
{Para 18}
19. In this wake, dismissal of a bail application for non
prosecution on account of absence of counsel is impermissible,
as it is contrary to the rights of prisoners to legal aid under the
Legal Services Authorities Act, 1987 and violative of
fundamental rights of the prisoners guaranteed under Article 21
of the Constitution of India.
20. Personal liberty is the fount of all rights. Protection of liberty
is the crown of the court process. While deciding bails the courts
have to be cognizant of the entitlement of prisoners to legal aid,
and also alert to their right of hearing. In the event of non
appearance of a prisoner’s counsel the court may appoint an
amicus curiae to represent the prisoner and proceed with the
hearing of the bail.
ALLAHABAD HIGH COURT
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18536
of 2020
Applicant :- Maneesh Pathak
Opposite Party :- State of U.P.
Author: Hon'ble Ajay Bhanot,J.
Order Date :- 28.2.2023
1. Matter is taken up in the revised call. None appears on behalf
of the applicant to press the bail application. Name of counsel for
the applicant is shown in the cause list.
2. The ordersheet discloses that the counsel for the applicant has
not appeared before this Court on successive dates of hearing in
the past. Earlier the Court had called for the status report from
the trial court as well as a report from the District Legal Services
Authority.
3. Question arises whether the bail application should be
dismissed for non prosecution or an amicus curiae should be
appointed to represent the applicant and the matter be heard on
merits.
4. Shri Omar Zamin, learned counsel is appointed as amicus
curiae to represent the applicant and assist the Court.
“Prison and the authorities conspire to rob each man of
his dignity”1.
5. The right to bail is derived from statute but cannot be isolated
from constitutional oversight.
1 Nelson Mandela in Long Walk to Freedom
6. Good authority has long entrenched the right of an accused to
seek bail in the charter of fundamental rights assured by the
Constitution of India. A more detailed discussion on
constitutional law anchors of right of bail which flows from
Article 21 of the Constitution of India can be seen in Ajeet
Chaudhary Vs. State of UP2 , Junaid Vs. State of UP. and
another3 and Anil Gaur @ Sonu @ Sonu Tomar Vs. State of
UP4.
7. Constitutional moorings of the right of bail also bring the
right of fair hearing within its ambit.
8. Legal aid is an indispensable instrument to secure the
preambled objective of justice to all citizens. The national
capacity to deliver equal justice is girded by the institutional
ability to provide legal aid. Legal aid was exalted as a
fundamental right by constitutional courts even before it was
vested as a statutory right by the legislature under the Legal
Services Authorities Act. [On the issue of legal aid and the
scheme of the Legal Services Authorities Act, 1987 see Anil
Gaur (supra)].
9. Entitlement to legal services is provided for in Chapter IV of
the Legal Services Authorities Act, 1987. Section 12 of the Legal
Services Authorities Act, 1987 contains the criteria for giving
legal services. Section 12(e) of the Act is germane to the
controversy and is extracted below:-
2 2021 (1) ADJ 559
3 2021 (6) ADJ 511
4 2022 SCC OnLine All 623 (Criminal Misc. Bail Application No. 16961 of 2022)
“Section 12 (e) - a person under circumstances of underserved want
such as being a victim of a mass disaster, ethnic violence, caste
atrocity, flood, drought, earthquake or industrial disaster.”
10. The scope of the provision to provide free legal aid arose for
consideration before this Court in Anil Gaur (supra) and was
analysed thus:
“40. The eligibility criteria for giving legal services under Section
12(e) is broad based.
The breadth of the provision manifests the legislative intent to
reach out to the last person at the bottom of the social heap. The
section contemplates to give legal aid to persons who suffer from
deprivation and exclusion caused by circumstances of want which
are not of their making.
Under the provision persons facing circumstances of “undeserved
want” become entitled for legal services. The phrase “undeserved
want” is generic in nature. The word “such as” precedes the
examples of “undeserved want” described in the section. The
instances of “undeserved want” depicted in the provision are
illustrative and not exhaustive, and are in the nature of externalities
i.e. adverse circumstances over which a person has no control and
which prevent recourse to justice.
The phrase “undeserved want” in the statute is not a fixed concept
but an evolutionary exercise. The State Legal Services Authority is
mandated to enquire whether the circumstances of a person being
considered for legal aid fall within the sweep of “undeserved
want”.
11. The Bar is the frontline sentinel of citizens’ rights and
liberties. The courts are the last bastion of constitutional law and
justice. Judges have an oath enshrined in the Constitution.
Lawyers have a pledge seared in their consciences to serve
justice in the nobel traditions of the legal profession. Translated
in terms of lawyers’ duties to their clients it essentially means
this. Lawyers have to diligently prepare the briefs and vigilantly
prosecute causes of litigants before the courts.
12. In bail applications special care has to be taken by the
counsels since the applicant is in jail and the counsel is his sole
representative before the court. Time honoured conventions of
the nobel profession cast an unconditional duty on the prisoner's
counsel to be present at the bail hearing. It is immaterial whether
the counsel’s professional remuneration has been paid or not.
Failure of a counsel at to turn up at a bail hearing may even
constitute a misconduct.
13. Dismissal of a lis for non prosecution is a practice evolved by
courts over long years for efficient administration of justice. The
practice is sound and has proved its efficacy in removing
unnecessary cases which clog the legal system. No litigant has a
right to unlimited draught on the time of the court. Non
appearance of counsel can also lead to an inference that the lis
does not survive, or that a litigant does not wish to prosecute the
same. Dismissal of such cases for default enables the judicial
system to place surviving cases in which the litigants are
interested on the courts’ dockets.
14. With the dismissal of a case for non prosecution, the lis
arrives at a terminus and is only subject to a restoration
application being filed by the litigant and allowed by the court. It
is important though to bear in mind the distinction between a lis
where civil rights are adjudicated, and a criminal case in which
the prisoner’s personal liberty is engaged. A litigant can elect to
waive civil claims by not prosecuting them. However, citizens
cannot relinquish their personal liberty even by choice. Personal
liberty is irrevocably vested in every citizen by the Constitution
and the courts are its permanent guardians.
15. Absence of the counsel at a bail hearing deprives the
prisoner-applicant of all ability to influence the outcome of a
proceeding where his personal liberty is at stake. When a bail
application is dismissed for non prosecution the prisoner’s period
of detention is enlarged by default even as he goes unrepresented
and unheard before the court.
16. Prisoners who apply for bail often live in poor and destitute
circumstances. On many occasions they do not have effective
pairokars who can oversee the presence of counsels at bail
hearings.
17. The abject conditions of a large number of forgotten
prisoners were summed up by Saran J. in Gobardhan Singh and
another v. State of U.P. 2013 SCC Online All 13141:
“This is not just an isolated case. We realize that there are a large
number of such cases of forgotten "nameless" prisoners who have
become "ticket numbers" and are languishing in jails for prolonged
periods of time, as under trials (UTs) or as convicted prisoners
whose appeals are pending almost interminably before Higher
Courts, who may or may not have filed bail applications and who
have become very old, or are ailing from an incurable disease, or
who may even have become immobile or have lost any capacity to
commit a further crime. The complainant (if any) has lost any
interest in prosecuting them or in keeping them in jail any longer.
Usually the families of such accused have been destroyed, or
reduced to such abject poverty, as happens when a family member
contracts a serious disease, that they cannot pay counsel's fee or
incur the recurring unavoidable expenditures in Court offices to get
applications and affidavits prepared or the matters listed, and the
bail or case disposed of. The relatively luckier children and
dependents may perhaps have been provided with a roof over their
heads by a grudging relative, or they may have been placed in a
State or private run children's home. Others may simply have been
abandoned to the street. The daughters in the family may not have
been married off, and may be getting exploited by some social
deviant in the family or outside. Keeping such prisoners in jail any
further, in the already overcrowded jails, serves no useful purpose
and is an unnecessary burden on the State and the tax payer.”
18. Prisoners have no remedy against absentee counsels and little
control over the adverse situation that follows. In these
circumstances the prisoner becomes a victim of “undeserved
want” within the meaning of Section 12 (e) of the Legal Services
Authorities Act, 1987 who is entitled to legal aid. Refusal of
legal aid to this class of prisoners would entail denial of justice.
19. In this wake, dismissal of a bail application for non
prosecution on account of absence of counsel is impermissible,
as it is contrary to the rights of prisoners to legal aid under the
Legal Services Authorities Act, 1987 and violative of
fundamental rights of the prisoners guaranteed under Article 21
of the Constitution of India.
20. Personal liberty is the fount of all rights. Protection of liberty
is the crown of the court process. While deciding bails the courts
have to be cognizant of the entitlement of prisoners to legal aid,
and also alert to their right of hearing. In the event of non
appearance of a prisoner’s counsel the court may appoint an
amicus curiae to represent the prisoner and proceed with the
hearing of the bail.
21. The narrative can profit by reference to authorities in point.
22. The cases discussed below arise out of criminal appeals.
However, the principles of law enumerated therein can be safely
applied by analogy to various criminal proceedings where the
applicant is in jail and personal liberty of the prisoner hangs in
balance.
23. The Allahabad High Court pioneered the cause of
unrepresented prisoners in criminal proceedings in the fabled
dissent of Syed Mahmood, J. in Queen Empress v. Pohpi and
others6.
24. Duty of a counsel to appear in cases despite non receipt of
fees and expenses and the obligation of the courts to protect the
liberty of the prisoner by appointing an amicus curiae was
emphasized in Khaili and others Vs. State of Uttar Pradesh7
by holding:
“1. ...But even though the fees and expenses were not paid, the Advocate
should not, in our opinion, have refused to argue the case. It must be
remembered by every advocate that he owes a duty to the court, particularly
in a criminal case involving the liberty of the citizen, and even if he has not
been paid his fees or expenses, he must argue the case and assist the court in
reaching the correct decision. We can appreciate a situation where an
6 1891 SCC Online All 1
7 1981 Supp SCC 75
advocate may be unable to argue the case in the absence of instructions from
the client, but non-receipt of fees and expenses can never be a ground for
refusing to argue the case. The learned Advocate in the present case, however,
refused to argue the case and consequently the learned Judge went through
the record of the case and decided the appeal. Now one thing is clear that
howsoever diligent the learned Judge might have been and however careful
and anxious to protect the interests of the appellants, his effort could not take
the place of an argument by an advocate appearing on behalf of the
appellants. We think that in a case such as this, what the learned Judge should
have done was to appoint an advocate amicus curiae and then proceed to
dispose of the appeal on merits.”
25. Similarly the Supreme Court set its face against the practice
of dismissing criminal appeals for default of appearance and
advocated appointment of amicus curiae in Kabira Vs. State of
U.P.8:
“2….We are, therefore, of the view that there has not been a proper disposal
of the appeal preferred by the appellant. The appeal could not be dismissed by
the learned Judge for default of appearance. If the appellant was not present,
the learned Judge should have appointed some advocate as amicus curiae and
then proceeded to dispose of the appeal on merits.”
26. By means of the the bail application the applicant has prayed
to be enlarged on bail in Case Crime No. 50 of 2019 at Police
Station- Bardah, District- Azamgarh under Section 307 IPC. The
applicant is in jail since 20.03.2019.
27. The bail application of the applicant was rejected by the
learned trial court on 04.06.2019.
28. The following arguments made by Shri Omar Zamin, learned
counsel on behalf of the applicant, which could not be
satisfactorily refuted by Shri Rishi Chaddha, learned AGA from
the record, entitle the applicant for grant of bail:
8 1981 Supp SCC 76
(i). The FIR has been lodged to rationalise a fake encounter
staged by the police authorities to burnish their credentials and
defend illegal use of force upon applicant.
(ii). No one from the police has suffered life threatening injury.
(iii). The recovered items were planted on the applicant to
implicate him in this case.
(iv). There is no independent witness to the recovery.
(v). Recovered articles cannot be linked with the crime.
(vi). Prosecution evidence does not connect the applicant with
the offence.
(vii). It is contended that the applicant has always cooperated
with the investigations and had joined the trial. The applicant is
innocent.
(viii). The trial is moving at a snail's pace and and shows no sign
of early conclusion. The applicant cannot be faulted for the delay
in the trial.
(ix). Inordinate delay in concluding trial has lead to virtually an
indefinite imprisonment of the applicant.
(x). Status report sent by the learned trial court records that the
prosecution proposes to examine 12 witnesses as per the
chargesheet. However, not a single witness has been examined
till date. The trial court is making delay. The applicant is not
responsible for the delay in the trial. Inordinate delay in
concluding trial had lead to virtually an indefinite imprisonment
of the applicant. The right of the applicant to speedy trial has
been violated.
(xi). The applicant is not a flight risk. The applicant being a law
abiding citizen has always cooperated with the investigation and
undertakes to cooperate with the court proceedings. There is no
possibility of his influencing witnesses, tampering with the
evidence or reoffending.
(xii). The applicant has explained his criminal history. It is also
contended that evidently the applicant is a soft target and a
convenient scapegoat for the police authorities. The applicant has
been nominated in the said cases only to show the proficiency of
the police investigators. The said criminal cases do not have any
bearing on the instant bail application.
29. In this wake without expressing any opinion on the merits of
the case I am of the view that the applicant is entitled to be
enlarged on bail.
30. Let the applicant- Maneesh Pathak be released on bail in the
aforesaid case crime number, on furnishing a personal bond and
two sureties each in the like amount to the satisfaction of the
court below. The following conditions be imposed in the interest
of justice:-
(i) The applicant will not tamper with the evidence or influence
any witness during the trial.
(ii) The applicant will appear before the trial court on the date
fixed, unless personal presence is exempted.
31. The learned trial court shall ensure that the sureties
demanded of the applicant are commensurate with his
socioeconomic status. Heavy sureties which the applicant can not
fulfill in view of his socioeconomic constraints will render the
right of bail nugatory.
32. High Court Legal Services Authority shall kindly consider
the payment of the approved remuneration to Shri Omar Zamin,
Advocate (Adv. Roll A/O0083/2012) who represented the
applicant as amicus curiae before this Court.
33. A copy of this order be communicated to the learned trial
court as well as District Legal Services Authority, Azamgarh, by
Registrar Compliance by FAX.
Order Date :- 28.2.2023
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