Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J. allowed an application of revision filed for quashing an order passed by Additional Sessions Judge (POCSO Act) under Sections 376, 506, 377 of the Penal Code, 1860 and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In the present case, the revisionist Shadaan Ansari being unable to engage a lawyer was provided an amicus curie by the trial court at expense of the state. The prosecution carried out Examination-in-Chief of the witnesses before the trial court. The amicus curie refused to cross examine the witnesses stating that it was not real and effective in this case. The revisionist filed for an application under Section 311 of the Code of Criminal Procedure, 1973 to recall the witnesses for their cross examination but it was rejected by the court with the observation that the Amicus Curiae denied the cross-examination on the advise of the revisionist.

Counsel for the revisionist, Bipin Kumar Tiwari, submitted that the intention of Section 304 of CrPC. is for providing real and effective aid to an accused and it is the duty of the trial court to ensure proper compliance of the requirement as the accused also has the right to fair trial. In support of his submission he placed reliance on Mohd. Hussain & Julfikar Ali v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408. He further submitted that if adequate legal aid has not been provided, it is a violation of Article 21 of the Constitution of India.

Counsel for the State, Aniruddh Kumar Singh, submitted that there is nothing illegal in the order passed by the court in rejecting the recall of witnesses for cross examination as the opportunity for the same was already given to the amicus curiae and it was turned down. He further submitted that it was clear that the trial court while rejecting the impugned order observed that the opportunity to cross examine the witnesses was given to the amicus curie but he denied it on the advice of the revisionist

The Court allowed the application for revision and quashed the impugned order of Additional Sessions Judge. Placing reliance on Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 and Mohd. Hussain v. State (Govt. of NCT) of Delhi, (2012) 2 SCC 584, the Court held that that if the adequate legal aid has not been provided to the accused during the trial, then it is violative of Article 21 of the Constitution of India. 

It was opined that the legal aid provided to the revisionist by the amicus curie was not real and effective, as the amicus curie had denied cross-examination of the witness. In view thereof, the Court set aside the impugned order and ordered the trial court to recall all the prosecution witnesses, and cross-examine them. [Shadaan Ansari v. State of U.P., 2020 SCC OnLine All 19, decided on 14-01-2020]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed against the order of the Appellate Court whereby petitioner’s appeal, against his conviction under Section 392 IPC recorded by the trial court, was dismissed on the sole ground of limitation.

The petitioner pleaded before the Appellate Court that being a poor person and in custody, he was unable to approach either the legal aid or to engage a private counsel, and therefore he couldn’t file the appeal in time. The Appellate Court noticed that during the trial the petitioner was represented by a private counsel and therefore disbelieved his explanation.

The High Court was of the view that the Appellate Court committed an error in not condoning the delay. It was said that the fact that the petitioner was represented by a private counsel before the trial court would not ipso facto imply that he had sufficient funds to engage a private counsel or appropriate legal advice to file an appeal within limitation. It was observed: “Courts have to take a liberal approach, when appeals against conviction are filed, with some delay, by persons who are in custody. Delay does not work to the advantage of the person incarcerated. People who are incarcerated do not have the advantage that a free person has, of approaching a counsel and taking legal advice at one own free will.”

It was said further: “We live in a society where the families of a poor person in custody and families of those coming from remote areas of the country are not even aware of their legal rights and even if aware, may not have the capacity or resources to approach a counsel for legal advice or approach courts for legal aid. Courts cannot adopt a hyper-technical approach, while considering an application seeking condonation of delay filed against conviction by a person in custody.” In such view of the matter, the Court quashed the impugned order and restored the petitioner’s appeal to the Court of the Additional Sessions Judge. [Rakesh Kumar v. State (NCT Delhi), 2019 SCC OnLine Del 8779, decided on 30-05-2019]

Law School NewsOthers

The Legal Services Clinic of the National Law School of India University is a student-run committee that seeks to increase access to the law through legal literacy programmes and free legal aid. In an effort to connect law students and legal aid clinics across the state we are organizing the first “Round Table Conference on Student-run Legal Aid” to create a legal aid network in Karnataka.

We invite you to join us in this conference where we shall be releasing our booklet “Frequently Asked Questions on the Law” in both Kannada and English. It serves as an easy-to-access handbook which addresses major legal questions and suggests ways in which ordinary citizens can use the law to secure their rights. The book both in Kannada and English will be distributed throughout the Karnataka State in collaboration with the Karnataka State legal Services Authority (KSLSA).

In addition to the book release, the conference also has a round-table discussion with members of other student-run legal aid committees scheduled. This seeks to be a platform for the crucial and much-needed discussion on how student-run legal aid clinics can be made functional and effective in law universities. We hope the discussion will be a successful first step in establishing a network for students of law across Bangalore city to help coordinate, collaborate, improve upon and make efforts at increasing access to legal aid more effective. This is our first step towards working on building a sustainable and efficient collaborative network amongst committees, which we hope to soon take to a pan-Indian level.

Hon’ble Mr. Justice Ashok Golappa Nijagannavar has generously agreed to provide us guidance and advice as the Keynote Speaker for the event. Furthermore, Sri. Hanchate Sanjeevakumar, Member Secretary, KSLSA has promised to share his time, thoughts and experiences with us as the Guest of Honor at the Conference. We expect eminent members of the bar, bench and student community to be present at the event.

Venue

Allen and Overy Hall, National Law School of Indian University, Nagarbhavi – 560072, Bangalore
Date: 22.01.2019
Time: 6:00 pm

Registration Fee and Procedure
No registration fee. However, on site contribution is much appreciated.

Contact Details

For further details or clarifications,

The Legal Services Clinic: lsc@nls.ac.inlsc.nlsiu@gmail.com

Visit our website at legalservicesclinic.org

Avinash V. Rao, Convenor: +91-9113814098

Mrinali Komandur, Joint-convenor: +91-9663385836

For more details, refer

Agenda – Legal Services Clinic

Concept Note – Legal Services Clinic

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ. and Ajay Mohan Goel, J. disposed of a writ petition by directing the concerned authorities to provide legal aid with immediate effect to jail inmates.

The present writ petition was filed in public interest owing to the information gathered under the Right to Information Act with regard to the non-availability of legal aid to inmates of the jail. Also, some were undergoing sentences as they could not get enlarged on bail for want of legal aid.

The Court appreciated the efforts of the petitioner to bring to the Court’s notice the issues faced by jail inmates. Accordingly, the H.P. State Legal Services Authority along with the Secretaries of District Legal Services Authority was directed to visit the jail and provide immediate legal aid to the inmates in need of it within a week’s time.[Anil Bansal v. State of H.P.,2018 SCC OnLine HP 1617, order dated 15-11-2018]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Rakesh Kumar & Arvind Srivastava JJ., while setting aside the order of death sentence, held that the appellant was not provided with the appropriate legal aid which he was entitled to.

According to the brief facts of the case, the appellant was convicted under Section 302 of IPC for the offence of murder of two children. For the stated offence he was convicted by relying on the 5 witnesses out of the 16 mentioned witnesses. It has been stated that the cross-examination of all the witnesses could not be held due to appellant’s financial condition being poor and not being able to afford legal assistance in that regard.

The Hon’ble High Court, observes that the trial court should have taken steps for providing legal aid at the expense of the government as the case of appellant went weak due to the failure of cross-examination of all the witnesses and thereby  Section 304 of CrPC has also not been complied in that regard. The court also observed that the primary witnesses were not examined by the prosecution which compels it to set aside the decision of the trial court and requires the High Court to remit back the matter.

The trial court has also been directed to take up the matter twice a week without any unnecessary delay as it holds a grave issue of the murder of two children, only then a logical end to this case would be attained. [State of Bihar v. Ram Prit Mandal,2018 SCC OnLine Pat 1080, order decided on  04-04-2018]

 

Case BriefsSupreme Court

Supreme Court: With a view to provide an alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice, the bench of A.K. Goel and U.U. Lalit, Jj held that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice.

Availability of video conferencing facility; availability of legal aid service; deposit of cost for travel, lodging and boarding in terms of Order XXV CPC; E-mail address/phone number, if any, at which litigant from out station may communicate, were some of the safeguards suggested by the Court.

The Bench noticed that transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The Court said that wherever the facility of video conferencing is available, it ought to be fully utilized and all the High Courts should issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases.

The Bench further added that to combat the issue of ignorance about availability of suitable legal services, Legal Aid Committee of every district should make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels should be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

It was also said that every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. [Krishna Veni Nagam v. Harish Nagam, 2017 SCC OnLine SC 236, decided on 09.03.2017]