ORDER
Bilal Nazki, J.
1. This application was made by the accused persons for securing the copies of the statements of prosecution witnesses free of cost. The relevant facts and the questions involved were elaborately discussed by learned Single Judge in his order dated 5th March,1999. The relevant portion is given below;
'This petition raises an important question of law. The petitioners are accused in S.C.No. 330 of 1998. The trial is going on. There are 430 witnesses cited by the prosecution. 70 witnesses have already been examined. The accused are charged for the offences under section 120-B, 148, 324, 326, 307, 302 r/w 149 and 112 of I.P.C, and also under sections 3, 4, 5 and 6 of Explosive Substance Act. They are in judicial custody since November,1997. There was an occurrence near Rama Naidu Studios, Banjara Hills, Hyderabad in which a bomb blast took place, 25 people died and several others received injuries. The petitioners moved application for bail before the trial court which was dismissed. They approached the High Court. The High Court also dismissed the application. The petitioners state that they are not in a position to meet the full expenses which are being incurred by them while defending themselves. The offences with which the petitioners are charged are serious in nature and may result even with the punishment of death or life imprisonment. There are 430 witnesses. On an average if a statement of a witness is recorded on 5 pages the volume of the whole testimony would be in the range of 2000 pages. The costs which are being charged by the Courts for furnishing a certified copy of each page is Rs.2/-. So, every accused will have to incur costs of Rs.4,000/- to Rs.5,000/- on securing copies of the statements of the prosecution witnesses alone. It is submitted by the learned counsel for the petitioner that there is no provision either in the Code of Criminal Procedure or in the criminal Rules of Practice or Circulars prescribing supply of depositions free of cost.
When this matter came up before this Court for admission, this court directed the Public prosecutor to get instructions. As the case was of emergency it was directed that it shall be taken up for disposal immediately. The learned Public Prosecutor however stated that there is a provision in the Criminal Procedure Code being Section 363 which only entitles supply of copy of the judgment free of cost when a person is sentenced to imprisonment. There is no provision in the Criminal Procedure Code which entitles the petitioners to seek copies of depositions of the witnesses free of cost.......'
We have heard Mr. M.N. Narasimha Reddy, learned counsel for the petitioner, learned Advocate General and Mr. Kannabhiran, Senior counsel in detail. Though the learned Advocate General has not opposed that a fair trial would include supply of copies of depositions of prosecution witnesses to the accused persons during the trial but he submitted that there is no provision empowering the Courts to do so, therefore it will have to be left to the legislature or to the High Court which has some powers for making rules. But, Mr. Kannabhiran on the other hand submitted that, in view of the mandate of Article 21 of the Constitution of India it would not be necessary to have an amendment in the Criminal Procedure Code. According to him there would also be not any necessity of making any fresh rules because it is already mandated by Article 21 and 22(1) of the Constitution that the persons who are brought as accused before the Courts should have a fair trial. Fair trial is not an abstract word but has a meaning and the meaning to it has been given by the Apex Court from time to time in many of its landmark judgments. Since the law has crystallized and the cantors of fair trial are now well known because of the historical pronouncements of the Apex Court therefore there would be no difficulty in holding that the right to get copies of depositions by the accused is part of a fundamental right and is contained in Article 21 and 22(1) of the Constitution. Mr. Kannabhiran also submitted that, it is well known that an accused person is treated innocent till his guilt is proved therefore he should know the exact accusation against him before he puts up his defence. He also submits that even the Criminal Procedure Code did not contain a provision earlier for appointing a defence counsel in appropriate cases by the Court on account of the accused being not in a position to appoint a counsel, but only because of the judgments of the Apex Court such a provision was enacted in the Code of Criminal Procedure. Similarly, he submits that, there was no provision for free legal aid but section 340(1) of the Old Code which is equivalent to section 303 of the new Code received creative and constructive interpretation from the Supreme Court and a right to be defended by a lawyer was considered to be fundamental. Although earlier the Supreme Court had taken a view that appointment of an advocate at the expense of the State to defend an accused was only a privilege and not a right (Tara Sing Vs . State : [1951]2SCR729 ) but in R.M. Wasava v. State of Gujarat (1) the Supreme Court pointed out that providing a lawyer would also mean that sufficient time and complete papers should be made available so that the Advocate chosen may serve the cause of justice with all the ability at his command. The case before the Supreme Court (1 supra) was an appeal by a convict from jail. The appeal was dismissed, however the judgment assumed importance which can be gathered from reproducing the judgment in full. In his usual style Justice Krishna Iyer, as His Lordship then was, was candid, crystal clear and crisp while laying down important law;
'A petition from jail - this is one - demands closer judicial care and we have with deep concern scanned the materials placed before us in the light of the grounds of grievance urged in this appeal. We find no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronizing gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command. In the present case, the accused has made a grievance that the amicus curiae came into the picture only on the day the trial commenced. This is an unfortunate feature. Nevertheless, we are satisfied that by postponing the examination of the important witnesses to the next day the learned Judge helped counsel to equip himself fully. We are also satisfied from a perusal of the papers that the cross-examination has not suffered for want of time or facility for counsel for the accused. We would, however, emphasize that in all these cases there should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend him properly. With these observations we dismiss the petition.'
In this case, the Supreme Court did not find that providing an advocate was sufficient for defending an accused, it said that sufficient time and complete papers should be made available so that the Advocate chosen may serve the cause of justice with all the ability at his command.
2. Now, in this context if we see, if an accused person is not able to pay for the copies of the depositions how could he prepare for effective defence. In the present case, it was pointed out that there were about 430 witnesses and each accused has to pay an amount of Rs.4000/- to 5,000/- for obtaining copies. If an accused person is not in a position to get these copies we wonder how can his Advocate address the Court while defending the accused. We may also point out that the principles which flow from the Criminal Procedure Code also do not suggest that the copies of depositions should not be given free of cost although there is no provision in the Code of Criminal Procedure directing supply of copies of depositions free of cost. Even when the trial commences under section 207 it is laid down that;
'207. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused free of costs, a copy of each of the following -
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements; if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:'
At that stage the accused has to be called upon to show why a charge should not be framed against him on the basis of the material collected by the police during investigation. So, if for framing of charge the accused is entitled to copies of the material supplied by the police one wonders how could he be deprived of depositions at the stage of conviction. If an accused cannot be charged of an offence without supplying the material as enumerated under section 207 of Cr.P.C, how can he be convicted of an offence and sentenced without supplying the depositions.
3. In a judgment reported in M.H. Hoskot v. State of Maharashtra (2) the Supreme Court was of the view that, one of the important components of fair procedure is natural justice. The Court was dealing with the right to appeal and it held that, 'there are two requirements which must be fulfilled, (1) service of a copy of the judgment to the prisoner in time to file an appeal and (2) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service'. The Court held that, both these requirements in fact are State's responsibilities under Article 21.In another judgment Hussainara Khatoon v. State of Bihar (3) the Supreme Court was dealing with delay in trial and the Court held that, a procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person. The Court went on to say that, 'no procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would be a foul of Article 21'.
If a person is not able to obtain the copies because he is not in a position to pay for that, it would certainly lead to adjournment after adjournment of the case because the advocate appearing for him, even if provided by the Government, would not be in a position to defend the case. Therefore, in our view, if the copies of depositions are not supplied to a person who is not able to pay for it then it may lead to unnecessarily prolonging the trial which would again be negation of Article 21 of the Constitution. It is also well settled that the rights of the accused person which are available to him either under Article 21 or 22 or 39(a) of the Constitution accrue to such an accused not after conviction, not only during the trial, but immediately after he is first produced before the Magistrate as has been held by Supreme Court in Khatri v. State of Bihar (4).In Ranjan Dwivedi v. Union of India (5) the Supreme Court considered the question, whether the right to be defended by a legal practitioner of his choice under Article 22(1) of the Constitution comprehends the right of an accused to be supplied with a lawyer by the State. This was a case where a lawyer had been provided to an accused person but he was not satisfied as a very paltry sum was being given by the Legal Aid to the lawyers appointed by it for defending the indigent accused persons. The complaint of the accused was that his lawyer was a junior lawyer and Senior lawyers would not appear for him on the fee offered to them and on the other hand the prosecution was being led by a galaxy of lawyers headed by a very competent Public Prosecutors. The Supreme Court did not allow the Writ petition but asked the accused to take remedies under section 304 Cr.P.C, it nevertheless pointed out that, there cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge laid and unless he has competent professional assistance. It referred to Law Commission's Forty eighth report and also to section 304 Cr.P.C.
We are, therefore, of the view that since fair trial would mean also providing of a competent professional assistance to an indigent accused person, therefore it follows that the accused person should also have the relevant material with him. The most competent advocate also would not be in a position to do justice with a criminal case unless he has the copies of depositions, made against the accused, with him.A reference can also be made to judgment in Suk Das v. Union Territory of Arunachal Pradesh (6). In this case the Supreme Court emphatically stated in para-5 and 6 that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. Para- 5 and 6 are reproduced;
'5. It is now well established as a result of the decision of this Court in Hussainara Khatoon's case : 1979CriLJ1045 that 'the right to free legal service is.....clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must beheld to be implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.'
This Court pointed out that it is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal service available to him. The same view was taken by a Bench of this Court earlier in M.H. Hoskot v. State of Maharashtra, (1979) 3 SCC 544: (AIR 1978 SC 1549). It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognized that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can in the circumstances be no doubt that the appellants were entitled to free legal assistance at State cost when they were placed in peril of their personal liberty by reason of being accused of an offence which if proved would clearly entail imprisonment for a term of two years.
6. But the question is whether this fundamental right could lawfully be denied to the appellants if they did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him? Now it is common knowledge that about 70% of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advise in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor. That is why it has always been recognized as one of the principal items of the programme of the legal aid movement in the country to promote legal literacy. It would in these circumstances make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service. Legal aid would become merely a paper promise and it would fail of its purpose. This is the reason why in Khatri v. state of Bihar : 1981CriLJ597 , we ruled that the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. We deplored that in that case where the accused were blinded prisoners the Judicial Magistrate failed to discharge his obligation and contended himself by merely observing that no legal representation had been asked for by the blinded prisoners and hence none was provided. We accordingly directed 'the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State' unless he is not willing to take advantage of the free legal services provided by the State. We also gave a general direction to every State in the country '......to make provision for grant of free legal service to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situations,' the only qualification being that the offence charged against an accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representations. It is quite possible that since the trial was held before the learned Additional Deputy Commissioner prior to the declaration of the law by this Court in Khatri v. State of Bihar (supra), the learned additional Deputy Commissioner did not inform the appellants that if they were not in a position to engage a lawyer on account of lack of material resources they were entitled to free legal assistance at State cost and ask them whether they would like to have free legal aid. But it is surprising that despite this declaration of the law in Khatri v. State of Bihar (supra) on 19th December,1980 when the decision was rendered in that case, the High Court persisted in taking the view that since the appellants did not make an application for free legal assistance, no unconstitutionality was involved in not providing them legal representation at State cost. It is obvious that in the present case the learned Additional Deputy Commissioner did not inform the appellants that they were entitled to free legal assistance and inquire from them whether they wanted a lawyer to be provided to them at State cost. The result was that the appellants remained unrepresentedby a lawyer and the trial ultimately resulted in their conviction. This was clearly a violation of the fundamental right of the appellants under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellants must be set aside.'
In this case the Supreme Court went ahead saying that it would be the duty of the Magistrate and Judge to inform the accused that he has a right to obtain free legal aid. In our view, the free legal assistance would not mean only making available an advocate, legal assistance in itself includes many more things. An advocate would only be able to do justice with his brief if relevant material is supplied to him and the most relevant material in a criminal trial would be the depositions of the prosecution witnesses. We have no hesitation in holding that free legal aid, which is now considered to be a fundamental right of an accused person, includes not only making available an advocate but also the material on which the prosecution relies.
7. In view of these judgments, we hold that it is in the spirit of scheme of the Code of Criminal Procedure that the copies of the depositions of the prosecution witnesses should be made available to the accused persons so that they can make the defence effectively. Even the Code of Criminal Procedure mandates providing of legal aid to the persons who are not in a position to defend themselves financially. In view of the pronouncements of the Supreme Court holding that free legal aid is a fundamental right to an accused person who is not financially able to defend himself, therefore, we hold and direct that the copies of the depositions shall be made available to the accused persons.
8. We hope that the High Court will frame the rules in this connection. Till the rules are framed we direct that all Magistrates and the Judges shall provide the copies of the depositions free of cost to accused persons who are not able to pay for the copies. An application accompanied with an affidavit that the person is an indigent person may have to be made by the accused persons before the concerned Magistrates or Judges as and when they need the copies. Copies shall be provided to them during the trial or after the trial but in any case the copies, free of cost, shall be made available only once.
9. The application is accordingly disposed of with the above directions.