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‘Judges to inform undertrials of free legal aid’

Free legal aid is indisputably the fundamental right of an undertrial,but is legal assistance extended only to those who specifically ask for it in court?

Written by Utkarsh Anand | New Delhi |
May 6, 2009 1:03:43 am

Free legal aid is indisputably the fundamental right of an undertrial,but is legal assistance extended only to those who specifically ask for it in court?

For some,this might seem a technicality,however,the same debate cost 31-year-old Eroj — languishing behind bars for almost 10 years — his freedom.

A sessions court,citing a Supreme Court ruling,has held that free legal aid cannot not restricted to those who apply for it and has put it upon every judge in the country to inform undertrials of their right to such assistance,the cost borne by the state.

Additional Sessions Judge Manoj Jain noted that even a conviction had to be set aside if the accused had not been apprised of this constitutional guarantee,and acquitted two undertrials in the case of all charges.

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Eroj was facing trial along with one Sabir in a robbery case. As per the prosecution,they had robbed a vegetable vendor of Rs 1,000 after injuring him with a knife. The two were nabbed on December 12,1999; a part of the looted money was also allegedly recovered.

The case was first heard by a metropolitan magistrate under the milder charges of robbery. By August 2008,the court had recorded the statements of eight witnesses,including the vendor. The prosecution then moved an application attaching stricter IPC sections,claiming a knife was used in the crime,making it a graver offence.

The application was allowed and the case transferred to the sessions court.

When the matter was taken up by ASJ Jain,he was shocked to learn that despite a protracted trial,the accused,belonging to the economically weaker strata,had never been assisted by a legal aid counsel,nor had they been informed by the lower court of their right to ask for one.

Notably,while Sabir could collect resources and procured bail during the trial,Eroj languished in Tihar owing to financial inability.

A legal aid counsel was subsequently employed by the court and the matter was heard afresh. This time,however,the prosecution failed to adduce important evidence and witnesses and requested the court to rely on the testimonies recorded earlier. ASJ Jain then cited a 1986 Supreme Court judgment,which had held that legal aid would become merely a promise on paper if the onus was on a poor,illiterate undertrial to ask for free legal aid. It was,therefore,directed that magistrates and sessions judges in the country had to inform every undertrial appearing before them of his/her entitlement to free legal services,the apex court had added. “The testimony on record is completely unrebutted and uncontroverted,” ASJ Jain added.

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