Introduction

• This case dealt with several aspects of criminal law and constitutional law which also includes right to get represented by an advocate under Code of Criminal Procedure, 1973 (CrPC) and Constitution of India, 1950.

Facts

• The only surviving Terrorist for 26/11 (2008) terrorists' attack on Mumbai at targeted places - Ajmal Kasab was convicted under Sections 302, 120B, 121, and 121A of Indian Penal Code, 1860 (IPC).
• Initially no lawyer agreed to represent the Ajmal Kasab as his client before the Court, and Kasab also denied all the services provided by the India and demanded the lawyer from his Country.
• Pakistan even did not accept the Kasab as his citizen and Kasab then accepted a lawyer from India.

Issues Involved

• Whether Article 22(1) comes into force only on the commencement of the trial as provided under Section 304, CrPC?
• Whether not providing a lawyer as per the choice of the accused person is violation of the accused’s fundamental rights under the Indian Constitution?

Observations

• The Supreme Court observed that the right to be defended by a legal practitioner crystallizes only at the stage of commencement of the trial under Section 304 of CrPC, but it is incorrect because there are two reasons:
  • First, such a view is based on an unreasonably restricted construction of the Constitutional and statutory provisions;
  • Second, it overlooks the socio-economic realities of the country.
• The Court further emphasized upon the developments of the legal aid under Article 22, 39A and Section 304 of the CRPC.
  • The Court said that the right to defend does not arise only at the time of commencement of the trial but also when the accused is present before the Magistrate as he is remanded from time to time.
  • The Magistrate is under obligation to inform the accused about his right to free legal aid just before the accused was produced.
• The right to access legal aid to consult and to be defended by a legal practitioner arises when a person arrested in connection with a cognizable offence is first produced before a Magistrate.
• The right to free legal services is clearly essential for the reasonable, fair and just procedure for a person accused.
• The Court further said it is the constitutional duty of the Court to provide the lawyer to the accused even if he doesn’t ask for the lawyer.

Conclusion

• The Court concluded that as the accused refused to accept the lawyers provided by the India and demand for the Pakistan lawyer, but it was unacceptable because Pakistan did not even consider him as its citizen.
  • And when he asked for the lawyer, the two lawyers were provided to him, hence there is no violation of the fundamental rights of the appellant under Constitution of India, 1950.
• The SC also upheld the decisions of the Trial Court and accused was hanged to death in complete secrecy on 21st Nov 2012 at 7:30 AM at Yerwada jail in Pune.

Note

• Section 304 of CrPC: Legal aid to accused at State expense in certain cases.—

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for—

(a) the mode of selecting pleaders for defence under sub-section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.