LexHUSSAINARA KHANTOON & ORS. versus HOME SECRETARY, STATE OF BIHAR, PATNA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B
c
D
F
760
HUSSAINARA KHANTOON & ORS.
v.
HOME SECRETARY, STATE OF BIHAR, PATNA
April 19, 1979
[P. N. BuAGWArs, 0. CmNNAPPA REDDY AND A P. Sm, JJ.]
Le~al Aid to Poor-Ad111i11istration of Criminal l11.stice-Co11.\tilurional obli-
gation of Srate Gorel'nflu'nt-Frce lrgal sen-ices-A b.\l'llce of-I -i1it1rio1t of trial
-Att. 21 Constitution of lndfa.
Crilninal Procedure (,'ode, 1973-S. 167(2)(a)-Riu/11 uf u11d1·r-triul p1iso1I-
er-Release on bail-E11title111cnt to co101sel at Stale expense.
.....
On further hearing the petition for r'elease of under-tri::ils in the State of~
Bihar.
i
HEID : 1. The State Governments do not seem to be alive t.i their consti-
tutional responsibility in the matter of provision of free legal services in the
field of administration of criminal justice. If law is net only to speak justice
"
but abo deliver justice, legal aid is an absolute imperative. Legal aid is really
nothing also but equal justice in action.
It is in fact the deliYi!ry system of
•ecial justice.
[765D]
2. Every State Government will have to carry out its constitutional obli-
gation to provide free legal services to every accused person who is in peril
of losing his liberty and who is unable to defend himself through a lawyer
by reason of his poverty or indigence in cases where the needs of justice
so
require. If free legal services are not provided to such an accused, the trial
itself may run the risk of being vitiated as contravening Art. 21 and every State
Government should try to avoid su'>'.':h a possible eventuality.
!765F-G]
3. When an under-trial prisoner is produced before a. 1v1agistrate and he
has been in detention for 90 days or 60 days as the case may be, the f\.fagistrate
must, before making an order of further remand to judicial custody, poin.t out
to the under-trial prisoner that he is entitled to b'e released on bail.
[762H, 763A]
4. The Magistrate must take care to see that the right of the under-trial
prisoner to the assistance of a lawyer provided at State cost is secure.d to him
with a view to enable him to apply for bail in exercise of his right under pro-
viso (a) to sub-section (2) of s. 167 Criminal Procedure Code
[763B]
5. The Magistrate must deal with the application for bail in accordance
with tho guidelines laid down in the Court's order dated February 12, 1979.
[763C]
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
•
)-
•
>
G
Mrs. K. Hingorani for the Petitioner
U. P. Singh and S. N. Jlw fo.r the Respondent.
The Order of the Court was delivered by
'
..
...
,<
i
~
,
BHAGWATI, J.
This writ petition has again come up before us for
further directions. Mr. U.P. Singh, learned Advocate on behalf of the
H
State of Bihar, has intimated to us that pursuant to
the directions
given by us in our order dated 9th March, 1979('), the State of Bihar
(I) [1979] 3 SCR 532-544.
> ..
I
'
I
I
•
H. KHATOON v. HOME SECRETARY (Bhagwati, /.)
761
has already released 70 undertrial prisoners whose names were set out
in th~ chart filed by Mrs. Hingi:>rani on 9th March, 1979. It is highly
regretable that these undertrial prisoners should have remained in jail
without trial for periods longer than the maximum term for which they
could have been sentenced if convicted. We fail to see what moral or
ethical justification could the State have to detain these unfortunate
persons for such unreasonably long periods of time without trial. We
feel a sense of relief that they should once again be able to breathe the
air of freedom. But we find that there are still many more undertrial
prisoners who fall within thls category of persons who have been in
detention for periods li:>nger than the maximum term without their trial
having been commenced. Mrs. Hingorani has filed before us at the
hearing of the writ petition on 16th April,
1979 a
second
chart
giving the
names
and particulars of some of these
under-
trial prisoners who have not yet got the benefit of the earlier
order made by us.
There are 59 undertrial prisoners whose
names and particulars are set out in this chart and we direct that they
should be released forthwith as their continued detention is clearly illegal
and in violation of their fundamental right under Art. 21 of the Constitu-
tion. There are also several other undertrial prisoners who are accused
of multiple offences and even if we were to proceed on the assumption
that the State would be able to secure theiExcerpt shown. Read the full judgment & AI analysis in Lexace.