IN THE HIGH COURT OF KERALA AT ERNAKULAM

R. Basant & K. Vinod Chandran, JJ.

Crl.M.A. No. 1474 of 2012 in DSR No. 4 of 2012

Dated this the 12th day of April, 2012

Head Note:-

Constitution of India, 1950 -  Article 21 and 39(A) - Code of Criminal Procedure, 1973 - Section 304 - Kerala High Court Rules, 1971 - Rule 183 - If a prisoner does not have the opportunity to interact with his counsel, such legal aid/advice is empty, meaningless and hollow. 

Specific directions issued.

1. All counsel appointed to render legal aid under Rule 183 of the Kerala High Court Rules must ensure that they interact with the accused persons and take instructions from them. 

2. To facilitate this they shall be entitled to proceed to the prison where such accused persons are detained in custody. They shall be entitled to claim, as part of remuneration and in addition to what is now payable to them under Rule 185, Traveling Allowances and Daily Allowance as admissible in the case of a first class Officer of the State Government. 

3. The Superintendent of the prison concerned shall afford all opportunities to such counsel to interact with and take instructions from such accused persons in absolute privacy. Such counsel shall be entitled to inform the Prison Officials concerned(through the Registry if 'necessary or directly) sufficiently in advance whereupon all such necessary assistance for interaction shall be provided by the officials of the Jail concerned. 

4. All such counsel shall file before the Registry, memos stating that they have so interacted with the clients within a period of three months from the date of their appointment(or earlier as directed by the Court) and such proceedings shall be listed for hearing by the Registry only after such memo is filed. If such memo is not filed within three months the Registry shall bring up the matter for further directions of the Court. 

5. Copy of these directions shall be communicated by the Registry to all counsel appointed under Rule 183 in matters presently pending. Copy of this Order shall be furnished to the learned Director General of Prosecution as also to the Member Secretary, KELSA. The Director General of Prosecution shall take steps immediately to instruct all Prison officials to afford the opportunity referred above for the counsel to interact with the accused.

O R D E R

R. Basant, J.

i. Do the arrangements for free legal aid for the appellants in custody in criminal appeal really serve their laudable purpose ?

ii. Is there only literal and not substantive compliance with the compassionate mandate of law that every hapless and helpless accused in custody must be provided adequate legal assistance ?

These questions which have been vexing and disturbing us in this jurisdiction for sometime have been brought to our pointed attention by this petition filed by Adv. K.R. Krishnakumari a counsel engaged at the cost of the State to defend the accused who is facing a sentence, of death. Her appointment has been made under Rule 183(1) of the Kerala High Court Rules. We place on record our appreciation for the efforts made by the learned counsel to bring to our pointed attention a malady that appears to be prevailing in the matter of rendering free legal aid to accused persons.

2. Death Sentence Reference 4 of 2010 pending before this Court is registered on the basis of a reference from the Principal Sessions Judge, Ernakulam wherein accused has been found guilty, convicted and sentenced, inter alia, under Section 302 of the Indian Penal Code to be hanged by the neck till his death. As there was no representation, the learned counsel Smt. Krishnakumari was appointed under Rule 183(1) of the Kerala High Court Rules to render legal aid to the accused. After the counsel perused the records, the learned counsel feels that the appellant ought to prefer a proper appeal against the impugned judgment. He has not done the same so far. Evidently he has no one to look after his interests and his disadvantageous position as the convict in prison is fettering that option of his. In these circumstances, the counsel feels that she must be permitted to interact with the accused. She wants to aid and advise him for the proper conduct of his case. Rendering proper legal aid to the accused must necessarily include giving legal advice to him to prefer an appeal. The learned counsel has not had the opportunity to interact with the accused. She prays that arrangements may be made to enable her to interact with the accused. Ideally the counsel would like the accused to be brought to this Court where she can have interactions with him. If that be not possible for any reason, the learned counsel prays that she may be permitted to interact with him in the prison where he is presently lodged. Appropriate further directions to facilitate such interaction may be issued, prays the learned counsel.

3. We have been coming across this malady of counsel appointed under Rule 183(1) of the Kerala High Court Rules not having opportunity to interact with persons for whom they are charged with the duty to render legal aid. It is unnecessary to advert to precedents. The sweep of the right to life under Article 21 certainly takes in the right for legal aid and advice in such matters where the accused is facing a sentence of death/life. Specific reference to precedents may appear to be unnecessary. However, we take note of the classic decision of the three Judges Bench in Madhav v. State of Maharashtra, AIR 1978 SC 1548. Article 39(A), it has been held is an interpretative tool for Article 21. Right to life would be rendered meaningless unless a person in disadvantaged circumstances, like the accused herein, is given legal aid not merely in a procedural sense but in the full substantive concept. We may also refer to the latest decision on the point AIR 2012 SC 750 by two Judges Bench in Mohd.Hussain alias Julfikar Ali v. State (Govt. Of NCT), Delhi. It is unnecessary to expatiate on the right to legal assistance as it is so fundamental and basic in our system of law that an indictee is entitled to legal aid at all levels.

4. It is of course true that in all cases where the indictees are unrepresented before this Court, the Court invokes the power under Rule 183 of the Kerala High Court Rules and ensures that the services of a counsel is made available to such indictees. But at a practical level and in a realistic sense we find only literal and not substantive compliance with, the laudable mandate of law. Some of such indictees contact the counsel through their relatives and the counsel has some meager indirect instructions in the matter. But in the bulk of cases, we do note that the counsel appointed under Rule 183 have only acquaintance with the relevant records. They do not have, and surprisingly according to us, they do not claim, opportunity for effective interaction with the persons on whose behalf they appear and make submissions before Court. If a prisoner does not have the opportunity to interact with his counsel, we need only mention that such legal aid/advice is empty, meaningless and hollow. That would be gross disservice to the laudable mandate under Article 21 and 39(A) of the Constitution, Section 304 of the Code of Criminal Procedure and Rule 183 of the Kerala High Court Rules. We have no hesitation to agree that this unfortunate state of affairs must be altered and changed. Before every counsel appointed under S.304 Cr.PC or under Rule 183 of the Kerala High Court Rules stands up to advance arguments before the Court concerned, we want them to interact with the persons for whom they are supposed to render legal aid. Without such instructions from the client and interaction between client and the lawyer, the concept of legal aid and assistance would be rendered meaningless. We therefore, feel that specific directions ought to be issued to remedy this malady which is occurring before us every day when such appeals/DSRs are taken up for consideration.

5. We wanted to ascertain details. The Registry was directed to put up detailed notes. Notice was issued to the Member Secretary of the Kerala Legal Services Authority (KELSA). They were requested to explain the provisions of law under which such legal services are being rendered to the accused persons. We also wanted to know why two parallel streams of providing legal aid are continuing even now.

6. A counsel entered appearance for the Member Secretary, KELSA. The member Secretary was personally required to be present before Court to explain details. Learned Director General of Prosecution has also made submissions. The detailed note of the Registry has been placed before Court. The Member Secretary submits that the Kerala Legal Services Authority has effective provisions to render legal aid to such persons in custody. At present, applications received from persons in such custody in matters pending before the High Court are forwarded by KELSA to the High Court Legal Services Committee. In respect of DSRs and Criminal Appeals, when legal services are sought, the Secretary of the Kerala High Court legal Services Committee places the same before the Registry whereupon on the directions of the Court, a counsel is engaged at the expense of the State to render legal aid to such accused. For such appointments the Legal Services Authority under the Act does not take up any responsibility. Such appointments are made from the panel prepared by the Hon'ble Chief Justice, in accordance with the Rules.

7. It is pointed out that Rule 185 of the Kerala High Court Rules deals with the fee payable to the counsel. Not only prescribed fee, additional amounts can also be ordered to be paid by the Court. The quantum of such fees subject to the stipulations of the Rules remains in the absolute discretion of the Court. It is pointed out that if the Court is so pleased, the Court can direct that expenses for the counsel appointed under Rule 183 to proceed to the prison and to take instructions can be disbursed, on the orders of the Court, by the Registry.

8. Incidentally it is brought to our notice that fee payable under the relevant rules and regulations under the Legal Services Authorities Act is more than what is ordinarily payable under Rule 185 of the Kerala High Court Rules. What is the justification for such two parallel streams, it was queried. We must mention that we have not received adequate and satisfactory responses to that query. We do certainly feel that the two streams for providing legal aid/assistance to persons in custody need to be harmonised. We direct the Registry to place the matter before the Hon'ble Chief Justice to take appropriate action so as to bring about uniformity in the matter of legal aid and advice to such persons.

9. Coming specifically to the grievance of the petitioner we are certainly of the opinion that all counsel must interact with the parties for whom they appear, before they attempt to argue matters before Courts on behalf of such persons. Inability/refusal to so interact with such accused persons would, according to us, be the very negation of a right for free legal aid.

10. We are in these circumstances satisfied that specific directions can be issued in favour of the petitioner. We feel that we should not merely stop there. Further, specific and general directions can be issued which should hold the field, until modification of the statutory stipulations or Rules are brought about. We do in these circumstances think it appropriate to issue following general directions:-

1. All counsel appointed to render legal aid under Rule 183 of the Kerala High Court Rules must ensure that they interact with the accused persons and take instructions from them. 

2. To facilitate this they shall be entitled to proceed to the prison where such accused persons are detained in custody. They shall be entitled to claim, as part of remuneration and in addition to what is now payable to them under Rule 185, Traveling Allowances and Daily Allowance as admissible in the case of a first class Officer of the State Government. 

3. The Superintendent of the prison concerned shall afford all opportunities to such counsel to interact with and take instructions from such accused persons in absolute privacy. Such counsel shall be entitled to inform the Prison Officials concerned(through the Registry if 'necessary or directly) sufficiently in advance whereupon all such necessary assistance for interaction shall be provided by the officials of the Jail concerned. 

4. All such counsel shall file before the Registry, memos stating that they have so interacted with the clients within a period of three months from the date of their appointment(or earlier as directed by the Court) and such proceedings shall be listed for hearing by the Registry only after such memo is filed. If such memo is not filed within three months the Registry shall bring up the matter for further directions of the Court. 

5. Copy of these directions shall be communicated by the Registry to all counsel appointed under Rule 183 in matters presently pending. Copy of this Order shall be furnished to the learned Director General of Prosecution as also to the Member Secretary, KELSA. The Director General of Prosecution shall take steps immediately to instruct all Prison officials to afford the opportunity referred above for the counsel to interact with the accused.

11. Coming specifically to the request in this case the petitioner can also proceed to the Prison to take instructions from and to interact with the accused. She shall be entitled as of right to claim the TA and DA applicable as per the above observations.

12. An earlier Bench has issued such a direction but we reiterate that as soon as a counsel is engaged under Rule 183 Registry shall communicate to the prisoner name and details of the counsel engaged under Rule 183. Such communication shall be given through the officials of the prison where the prisoner is detained with copy to the counsel. This will ensure, we do hope, that there will be no possibility of the Prison officials not knowing/not recognising the right of the counsel to interact with the prisoner.

13. Hand over a copy to the learned counsel for the petitioner. The Registry shall carry out the general directions issued in this order.