KHATRI AND OTHERS versus STATE OF BIHAR & ORS.

Citation: [1981] 2 S.C.R. 408 · Decided: 19-12-1980 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Hearing Adjourned
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Judgment (excerpt)

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KHATRI AND OTHERS 
v. 
STATE OF BIHAR & ORS. 
December 19, 1980 
[P. N. BHAGWATI AND A. P. SEN, JJ.] 
Right to free legal services to a person accused, of an offence-Duty of the 
State explained Co11Stitution of India, Articles 21 and 22. 
Expressing displeasure over disregard of the decision of the Supreme Court 
by the State of Bihar, the Court 
HELD : (I) The right to free legal services is clearly an essential ingredient 
of reasonable, fair and just procedure· for a person accused of an offence and 
it is implicit in the guarantee of Article 21 and the State is under a constitutional 
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. The State should provide free 
legal aid to an. accused person who is unable to secure legal services on account 
of indigence and \.Vhatever is necessary for this purpose has to be· done by the 
State. It cannot avoid its constitutional obligation to provide free legal services 
to a poor accused hy pleading financial or administrative liability. 
[412C-D, F-G] 
Hussainara Khatoon v. State of Bihar, [19791 3 S.C.R. 532, reiterated. 
JI.hem v. Malcolm, 377 F.· Supp. 995; Jackson v. Bishop. 404 F. Supp. 2d, 
571, quoted with approval. 
(2) The State is under a constitutional obligation to provide free legal ser· 
vices not only at the stage of trial but also at the stage when the accused is first 
produced before the magistrate, as also when he is remanded from time to time. 
[413C-D] 
(3) But even this right to free legal services would be illusory for an indi-
gent accused unless the magistrate or the Sessions Judge before whom he is pro· 
duced informs him of such right. It would make a mockery of legal aid if it were 
to be left to a poor ignorant and illiterate accused to ask for free legal services. 
Legal aid would become merely a paper promise and it would fail of its purpose. 
1be magistrate or the sessions judge before who·m the 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, het is. entitled 
to obtain free legal services at the cost of the State. Unless he is not willing 
to take advantage, every other State in the country should make provision for 
grant of free legal services. to an accused who is unable to engage a lawyer on 
account of reasons such as poverty, indigence or incommunicado situation. The 
only qualification would be that the offence charged against the accused is such 
that on conviction it 'vould 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 representation. There may be cases involving 
offences such ns economic offences or offences against law prohibiting prostitution 
or child abuse and the like, where· social justice may require that free legal 
services need not be provided by the State. [413D, E-F, H, 414A-BJ 
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KHATRI v. BIHAR (Bhagwati, J.) 
409 
( 4) The State and its police authorities should see to it that the constitutional, 
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and legal requirement to produce an arrested person before a judicial magistrate 
within 24 hours of the arrest is scrupulously observed. 
[414C·D] 
( 5) The provision inhibiting detention without remand is a very healthy 
provision which enables the magistrates to keep check over the police investiga· 
tion and it is necessary that the magistrates should try to enforce this require~ 
ment and where it is found to be disobeyed come down· heavily upo~ the police. 
[414F-G] 
ORIGINAL JURISDICTION : Writ Petition No. 5670 of 1980. 
(Under Article 32 of the Constitution) 
Mrs. K. Hingorani and Miss Rekha Tiwari for the Petitioner. 
K. G. Bhagat and D. Goburdhan for the Respondent. 
The Order of the Court was delivered by 
BHAGWATI, J .-This case has now come before us after service 
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of notice on the Slate of Bihar. When this case was taken up for 
hearing by us on 2nd December, 1980, we expressed our displeasure 
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that the State of Bihar had not chosen to appear in answer to the 
notice, but this expression of displeasure was made by us on the 
assumption that the notice was served on the State of Bihar. We are 
however informed by Mr
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