Bounden duty of Court to provide legal assistance to an individual who is unable to engage a legal counsel: Madras High Court
Courts must mandatorily provide legal assistance through Legal Service Authority to an individual who is unable to afford or engage a legal counsel. A Bench of P Velmurugan J, while adjudicating the matter in The Executive Magistrate v. The State; [Crl.M.P.No.5016 of 2021], dealt with the issue of providing legal assistance to the needy. The case of the petitioner is that while the second respondent, Police was at regular patrolling, the petitioner was stands by suspicious and he was arrested and questioned and the second respondent initiated the proceedings under Section 107 of Cr.P.C. As per the proceedings, the petitioner executed a bond under Section 110 Cr.P.C. During the said bond period, the petitioner violated the proceedings and involved in another case in Crime No.121 of 2021 for the offence under Section 294(b), 341, 323, 324, 307 and 506(ii) IPC. Thereafter, the first respondent initiated action against the petitioner under Section 122(1)(b) Cr.P.C for the breach of bond executed by the petitioner under Section 110 Cr.P.C. Challenging the said order, the petitioner is before this Court. The learned counsel for the petitioner would submit that the petitioner was not involved in any offence and a false complaint has been foisted against him. The first respondent without affording any opportunity to the petitioner and without examining the witnesses, passed an order under Section 122(1)(b) Cr.P.C and cancelled the bail bond executed by the petitioner and imposed sentence of imprisonment for the remaining period. The learned Government Advocate (Crl.Side) would submit that after providing sufficient opportunity only, the petitioner was produced before the second respondent for enquiry. At the time of trial, the petitioner has not raised any request regarding legal assistance, but, now, the petitioner has raised the said objection. Hence, there is no merit in this case and the same may be liable to be dismissed. Admittedly, the petitioner was arrested in suspicious and on execution of bail bond he was involved in another case in Crime No.121 of 2021 for the offence under Section 294(b), 341, 323, 324, 307 and 506(ii) IPC. Thereafter, the second respondent initiated action against the petitioner under Section 122(1)(b) of Cr.P.C for the breach of bond executed under Section 110 Cr.P.C. It is settled proposition of law, the accused, who is in custody, has to be provided with legal assistance by engaging a counsel on his own. If the petitioner is not in a position to engage a counsel on his own, it is the bounden duty of the respondents/Court to provide legal assistance through Legal Services Authority. In this case, the first respondent ought to have offered adequate time to engage a counsel to defend him or engage a counsel through Legal Services Authority.
Crl.R.C.No.2221IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2021CORAM:THE HON BLE Mr. JUSTICE P.VELMURUGANCriminal Revision Case No.2221 &Crl.M.P.No.50121Prasad ... Petitioner..vs..1.The Executive Magistrate cum the Deputy Commissioner of Police Washermenpet.2.State by The Inspector of PoliceH8 Thiruvottiyur Police Station Chennai District. ... Respondents Criminal Revision Case filed under Section 397 read with 401 Cr.P.C to call for the records pertaining to the order dated 24.03.2021 passed against the petitioner in M.P.No.221 in LIR No.24 Sec.Pro DCP WPT 2020 on the file of the Executive Magistrate cum the Deputy Commissioner of Police Washermenpet. Page No.1 8 n Crl.R.C.No.2221For Petitioner :Mr.S.SilambuselvanFor Respondents:Mr.K.MathanGovernment Advocate341 323 324 307 and 506(ii) IPC. Thereafter the first respondent initiated action Page No.2 8 n Crl.R.C.No.2221against the petitioner under Section 122(1)(b) Cr.P.C for the breach of bond executed by the petitioner under Section 110 Cr.P.C. Challenging the said order the petitioner is before this Court.3. The learned counsel for the petitioner would submit that the petitioner was not involved in any offence and a false complaint has been foisted against him. The first respondent without affording any opportunity to the petitioner and without examining the witnesses passed an order under Section 122(1)(b) Cr.P.C and cancelled the bail bond executed by the petitioner and imposed sentence of imprisonment for the remaining period.4. The learned Government Advocatewould submit that after providing sufficient opportunity only the petitioner was produced before the second respondent for enquiry. At the time of trial the petitioner has not raised any request regarding legal assistance but now the petitioner has raised the said objection. Hence there is no merit in this case and the same may be liable to be dismissed.5. Heard the learned counsel on either side and perused the materials Page No.3 8 n Crl.R.C.No.2221available on record.6. Admittedly the petitioner was arrested in suspicious and on execution of bail bond he was involved in another case in Crime No.1221 for the offence under Section 294(b) 341 323 324 307 and 506(ii) IPC. Thereafter the second respondent initiated action against the petitioner under Section 122(1)(b) of Cr.P.C for the breach of bond executed under Section 110 Cr.P.C. 7. On a careful perusal of the records it is seen that on Prisoner s Transit Warrant the petitioner was summoned before the first respondent on 22.03.2021 however no opportunity was provided to the petitioner to engage a counsel and passed the impugned order on 24.03.2021. It is settled proposition of law the accused who is in custody has to be provided with legal assistance by engaging a counsel on his own. If the petitioner is not in a position to engage a counsel on his own it is the bounden duty of the respondents Court to provide legal assistance through Legal Services Authority. In this case the first respondent ought to have offered adequate time to engage a counsel to defend him or engage a Page No.4 8 n Crl.R.C.No.2221counsel through Legal Services Authority. 8. In such view the order passed by the first respondent dated 24.03.2021 is hereby set aside and the matter is remitted back to the first respondent for fresh consideration. The first respondent is directed to issue fresh summons to the witnesses and also provide legal assistance to the petitioner through the Legal Services Authority if the petitioner is not in a position to engage a counsel on his own and dispose of the case in accordance with law. Such exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The petitioner shall co operate with the respondents for enquiry.9. With the above direction this Criminal Revision Case is disposed of. Consequently connected miscellaneous petition is closed.30.04.2021r n sPage No.5 8 n Crl.R.C.No.2221To1.The Executive Magistrate cum the Deputy Commissioner of Police Washermenpet.2.The Inspector of PoliceH8 Thiruvottiyur Police Station Chennai District. 3. The Public Prosecutor High Court Madras. 4.The Superintendent Central Prison I Puzhal Chennai.Page No.6 8 n Crl.R.C.No.2221P.VELMURUGAN J.r n sCriminal Revision Case No.2221 &Crl.M.P.No.5012130.04.2021Page No.7 8 n Crl.R.C.No.2221Page No.8 8 