Legal Aid For Accused Should Not Be For Namesake,Experienced Lawyers Should Be Provided For Conducting His Case: Bombay HC [Read Judgment]

Legal aid to be provided at state expenses should not be for namesake, the bench said.

The Bombay High Court has directed trial court judges that sufficiently experienced lawyer should be provided for conducting the case of the accused and they should be appointed only after recording satisfaction of their competency.

The Aurangabad bench of Justice TV Nalawade and Justice AM Dhavale made this observation while upholding the acquittal of a man accused of murdering his wife. The trial court had acquitted him on the ground of insanity.

Holding that the accused is entitled to benefit of doubt, the bench said it is material lacunae that the investigation officer did not produce the accused before the medical officer to obtain opinion about his mental status nor made inquiry with the mental hospital whether he was taking treatment.

The court, while perusing the trial court records, took note of the fact that the accused was unrepresented and the Sessions judge had provided him a lawyer at the state expenses and that there was no proper cross-examination of the witnesses to find out the conduct of the accused just before and just after the incident.

Referring to various apex court judgments, the bench issued these directives to all police officers, judicial magistrates and sessions judges/special judges:

• Whenever any accused person is arrested and there is any history or the conduct of the accused indicating that he is not mentally sound, it is the duty of the police officer who has arrested him to produce him before the medical officer for his examination with regard to his unsoundness of mind and to obtain the necessary certificate. If he is suffering from any unsoundness of mind, he should be forwarded to mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further.


• If the investigating officer fails to perform his duty of getting the accused person examined, it is the obligation of Judicial Magistrate before whom he is produced for the first time. If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not. In case of mental insanity, he should be provided with appropriate medical help.


• It should be also born in mind by the trial Judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate. If the accused is not represented, appropriate legal assistance should be provided to him at the state expenses.


• In case of Sessions triable offence, it is the duty of the Sessions judge that sufficiently experienced lawyer should be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment. In case of sessions cases of complex or peculiar facts it should be enquired whether he has conducted such case or not. Legal aid to be provided at state expenses should not be for the name sake. Then only he should be appointed as advocate for the accused and after recording his satisfaction of competency of the advocate. Copies of this judgment may be forwarded to Registrar General and Director General of Police, Maharashtra, for issuing necessary directions in this regard.

The bench also said when the cases in which advocate is appointed at state expenses at the trial stage comes in appeal, it becomes difficult to find out the competency of the lawyer or otherwise. “It is therefore advisable that while appointing a lawyer at state expenses, the trial court should disclose in its order the length of practice of the advocate appointed and his/her experience in conducting the criminal cases, sessions cases or sessions of particular types and his opinion that in the situation he/she was the competent person to be appointed for the accused particularly in cases where there is likelihood of conviction for major offences,” the bench said.