# Anil Gaur @ Sonu @ Sonu Tomar v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Criminal Misc. Bail Application No. 16961 of 2022
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-gaur-sonu-sonu-tomar-v-state-of-u-p-opp-party-47855
- **Pages:** 21

## Headnote

G.A.

Legal
Aid-Applicant-economical
deprived
class-abandoned by near and dear ones after
his
imprisonment-no
effective
pairokardirections issued to SLSA to devise a scheme
to identify prisoners- who are unable to file
bail
application-or
unable
to
effectively
prosecute their pending bail application-to
provide legal aid to them-Jail authorities -
duty-to prevent "undue long detention of
prisioners-under Regulation 439 (a)of the U.P.
Jail Manual-nodirect evidence against the
Applicant-no motive-case of circumstantial
evidence-recovered items were planted-no
independent witness to the recovery.

Bail allowed. (E-9)
List of Cases cited:

## Text

_Characters 0–39,932 of 65,231. This is a partial read: ask again with offset=39932 for what follows._

730 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 11 ILRA 730
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. Bail Application No. 16961 of
2022

Anil Gaur @ Sonu @ Sonu Tomar
 ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Nanhe Lal Tripathi, Sri Satish Kumar Mishra

Counsel for the Respondents:
G.A.

Legal
Aid-Applicant-economical
deprived
class-abandoned by near and dear ones after
his
imprisonment-no
effective
pairokardirections issued to SLSA to devise a scheme
to identify prisoners- who are unable to file
bail
application-or
unable
to
effectively
prosecute their pending bail application-to
provide legal aid to them-Jail authorities -
duty-to prevent "undue long detention of
prisioners-under Regulation 439 (a)of the U.P.
Jail Manual-nodirect evidence against the
Applicant-no motive-case of circumstantial
evidence-recovered items were planted-no
independent witness to the recovery.

Bail allowed. (E-9)
List of Cases cited:

1. Mohammad Giasuddin Vs St.of Andhra
Pradesh, (1977) 3 SCC 287

2. Sunil Batra (II) Vs Delhi Administration,
(1980) 3 SCC 488

3. Sheela Barse Vs St.of Mah., (1987) 4 SCC 373

4. Nilabati Behera (Smt) @ Lalita Behera
(Through
the
Supreme
Court
Legal
Aid
Committee) v. St.of Orissa and Ors, (1993) 2
SCC 746

5. Shabnam Vs U.O.I. & ors., (2015) 6 SCC 702

6. Gobardhan Singh & anr.Vs St.of U.P, 2013
SCC Online All 13141

7. Bachchey Lal Vs St.of U.P. , 2014 SCC Online
All 15093, 2014 SCC Online All 14128, 2014 SCC
Online All 14986

8. Junaid Vs St.of U.P., 2021 (6) ADJ 511

9. Ajeet Chaudhary Vs St.of U.P. & anr., (2021) 1
ADJ 559

10. Queen-Empress Vs Pohpi & ors. , 1891 SCC
Online All 1

11. Hussainara Khatoon & ors. (IV) Vs Home
Secretary, St.of Bihar, Patna, (1980) 1 SCC 98

12. Madhav Hayawadanrao Hoskot Vs St.of Mah.
& ors.

13. Sukh das Vs Union Territory of Arunachal
Pradesh

14. St.of Andhra Pradesh Vs Challa Ramkrishna
Reddy, (2020) 14 SCC 126

15. Chhotey Vs St.of U.P. in Criminal Misc. Bail
Application No.5328 of 2018

16. Rajnish v. St.of U.P. in Criminal Misc. Bail
Application No.20805 of 2022

17. Mahesh Chandra Shukla Vs St.of U.P. in
Criminal Misc. Bail Application No.17940 of 2022

18. Vikas Dwivedi Vs St.of U.P. in Criminal Misc.
Bail Application No.22375 of 2020

19. V. Ramu Vs St.of U.P. in Criminal Misc. Bail
Application No.17912 of 2019

20. Khatri & ors. (II) Vs St.of Bihar & ors.,
(1981) 1 SCC 627

21. Madhav Hayawadanrao Hoskot Vs St.of
Mah., (1978) 3 SCC 544
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
731
22. Suk das Vs Union Territory of Arunachal
Pradesh, (1986) 2 SCC 401

23. St.of Andhra Pradesh Vs Challa Ramkrishna
Reddy, AIR 2000 SC 2083

24. K.H.Nazar Vs Mathew K.Jacob & ors.,
(2020) 14 SCC 126

25. U.O.I. Vs +Prabhakaran Vijaya Kumar &
ors., (2008) 9 SCC 527

26. Allahabad Bank & anr. Vs All India Allahabad
Bank Retired Employees Assc., (2010) 2 SCC 44

27. Bharat Coop. Bank (Mumbai) Ltd. Vs Coop.
Bank Employees Union, (2007) 4 SCC 685

28. Re-inhuman conditions in 1382 jails' (Writ
Petition (Civil) No.406 of 2013),
(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Submissions of learned counsels
III Prisoners' rights
IV Right of bail
V
Legal aid:

A. Constitutional Law Backdrop
B. Statutory Scheme of LSA Act,
1987
C. Instances and Consequences of
denial of legal aid
D. NLSA Scheme for Legal aid
E. Summation
VI Conclusions & Directions
VII Order on bail application

VII
I
Appendix

I. Introduction

1. Shri Nanhe Lal Tripathi, learned
counsel assisted by Shri Satish Kumar
Mishra, learned counsel for the applicant
predicates his submissions on merits by
contending that the applicant's inability to
access
legal
aid
raises
legal
and
constitutional issues which directly affect
the right of bail and the personal liberty of
the applicant. Members of the Bar also
submit that this problem is faced by many
prisoners. The issue regarding the scope
and right of legal aid to prisoners arises in
the circumstances of this case, but also
transcends the facts of this case.

2.

While
discharging
judicial
functions in bail determination this Court is
not denuded of its status as a constitutional
court. The court is under a constitutional
obligation to address various legal and
constitutional issues which impact the grant
of bail if they arise in the facts of a case.
Forgotten humanity in jails has been
brought in full glare of the judicial process.
In these facts and circumstances the court
cannot abdicate its constitutional role, and
turn a blind eye to their suffering.

II. Submissions of learned counsels

3. Shri Nanhe Lal Tripathi, learned
counsel assisted by Shri Satish Kumar
Mishra, learned counsel for the applicant
makes the following submissions:

A. The applicant belongs to a
economically deprived class of citizenry,
who was abandoned by his near and dear
ones after his imprisonment. He has no
effective pairokar to conduct his case.
732 INDIAN LAW REPORTS ALLAHABAD SERIES

B. The applicant did not have access
to legal aid to file his bail applications in a
timely manner before the trial court as well
as this Court.

C. Denial of legal aid delayed recourse
to the legal remedy of bail, and caused
unjustified incarceration.

D. Right of the applicant to legal aid is
a fundamental right and is also a statutory
right vested in him by the Legal Services
Authorities Act, 1987.

4. Learned members of the Bar also
made submissions on the issue of legal aid
and pointed out various other instances where
under trials in cases of heinous crimes could
not approach the courts for consideration of
bail applications in a timely manner due to
lack of legal aid. Shri Rishi Chaddha, learned
A.G.A. and Shri Paritosh Kumar Malviya,
learned A.G.A. have assisted the Court on
behalf of the State.

Learned counsels at the Bar have
called attention to the statutory provisions
of the Legal Services Authorities Act, 1987,
rulings of constitutional courts and the jail
manual, which will be discussed in the
narrative.

III. Prisoners' Rights

"Prison and the authorities conspire to
rob each man of his dignity"1.

5. Stephen William Hawking in his
book "The Grand Design" relates an
incident where keeping fish in bowls was
banned in Italy. The sponsor of the measure
demonstrated that fish in spherical bowls
develop a distorted vision with passage of
time. Prison conditions which are not under
constitutional watch will degrade human
life and distort human vision.

6. India's long freedom struggle
seared the experience of oppressive prison
regimes and steeled the resolve to improve
prison conditions.

7. Constitutional courts have fortified
certain inviolable fundamental rights of
prisoners. The discussion will profit by
referencing
some
authorities.
While
examining conditions of jailed prisoners,
the Supreme Court in Sunil Batra v. Delhi
Administration and Ors.2, acknowledged
the
restricted
fundamental
rights
of
prisoners but found in no uncertain terms
that "Part III of the Constitution does not
part company with the prisoner at the gates,
and
judicial
oversight
protects
the
prisoners' shrunken fundamental rights, if
flouted, frowned upon or frozen by the
prison authority." Further"...The operation
of Article 14, 19 and 21 may be pared
down for a prisoner but not puffed out
altogether."
Finally
the
following
proposition was entrenched in the body of
case laws relating to fundamental rights of
prisoners."56...So the law is that for a
prisoner all fundamental rights are an
enforceable reality, though restricted by the
fact of imprisonment."

8. Hussainara Khatoon and others
(I) v. Home Secretary, State of Bihar3
recognized the right of speedy trial of a
prisoner flowing from Article 21 of the
Constitution of India "to be implicit in the
broad sweep" of Article 21 of the
Constitution. Other facets of fundamental
rights of prisoners have been propounded
in Mohammad Giasuddin vs. State of
Andhra Pradesh4, Sunil Batra (II) v.
Delhi Administration5, Sheela Barse v.
State of Maharashtra6, Nilabati Behera
(Smt) alias Lalita Behera (Through the
Supreme Court Legal Aid Committee) v.
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
733
State of Orissa and Ors7, and Shabnam
v. Union of India and others8.

9. This Court in Gobardhan Singh
and another v. State of U.P.9 noted the
abject conditions of a large number of
forgotten "nameless" prisoners and set
forth:

"This is not just an isolated case. We
realize that there are a large number of such
cases of forgotten "nameless" prisoners
who have become "ticket numbers" and are
languishing in jails for prolonged periods
of time, as under trials (UTs) or as
convicted prisoners whose appeals are
pending almost interminably before Higher
Courts, who may or may not have filed bail
applications and who have become very
old, or are ailing from an incurable disease,
or who may even have become immobile or
have lost any capacity to commit a further
crime. The complainant (if any) has lost
any interest in prosecuting them or in
keeping them in jail any longer. Usually the
families of such accused have been
destroyed, or reduced to such abject
poverty, as happens when a family member
contracts a serious disease, that they cannot
pay counsel's fee or incur the recurring
unavoidable expenditures in Court offices
to get applications and affidavits prepared
or the matters listed, and the bail or case
disposed of. The relatively luckier children
and dependents may perhaps have been
provided with a roof over their heads by a
grudging relative, or they may have been
placed in a State or private run children's
home. Others may simply have been
abandoned to the street. The daughters in
the family may not have been married off,
and may be getting exploited by some
social deviant in the family or outside.
Keeping such prisoners in jail any further,
in the already overcrowded jails, serves no
useful purpose and is an unnecessary
burden on the State and the tax payer."

10. The concerns expressed in
Gobardhan Singh (supra) were followed
up by commensurate action in Bachchey
Lal v. State of U.P.10 by issuing various
directions for ameliorating the conditions
of prisoners and upholding their rights.

11.

Constitutional
courts
have
consistently protected the dignity and rights
of prisoners in jails.

IV. Right of bail

12. The right of bail is acknowledged
as a statutory right, but is also seen in the
perspective of constitutional liberties by
good authorities in point. Various facts of
the right to seek bail were examined by this
Court in Junaid Vs. State of U.P.11 and
Ajeet Chaudhary Vs. State of U.P. and
another12

13. The aforesaid authorities establish the
undeniable linkage between right of bail
and fundamental right to personal liberty.
Every prisoner has a fundamental right to
file an application for bail before the
competent court as per law and without
delay.

V. Legal Aid: A. Constitutional Law
Backdrop

14. Liberty was assured to all citizens
in the constitutional text, but justice is dear
to many citizens in the real world.
Inalienable constitutional rights are severed
by compelling socio economic realities.
Poverty, social exclusion and lack of legal
aid impede the course of justice. Article
39A of the Constitution of India removes
the barriers in redeeming the preamble
734 INDIAN LAW REPORTS ALLAHABAD SERIES
promise of securing justice for all citizens.
Article 39A of the Constitution of India
underscores the importance of providing
legal aid to serve equal justice to all
citizens and states so:

"39A.
EQUAL
JUSTICE AND
FREE LEGAL AID.

The State shall secure that the
operation of the legal system promotes
justice, on a basis of equal opportunity, and
shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any
other way, to ensure that opportunities for
securing justice are not denied to any
citizen by reason of economic or other
disabilities."

15. Free legal aid is today enshrined as
a statutory right in the Legal Services
Authorities Act. Free legal aid was earlier
exalted
as
a
fundamental
right
by
constitutional law. Holdings of constitutional
courts form the backdrop of the Legal
Services Authorities Act. Allahabad High
Court had pioneered the concept of legal aid
as intrinsic to a fair trial in the fabled dissent
of Hon'ble Syed Mahmood J in QueenEmpress v. Pohpi and others13. Denial of
legal aid causes violation of fair, reasonable
and just procedure, unjustified incarceration,
and curtailment of liberty. Articles 14 and 21
of the Constitution of India are engaged in
these circumstances.

16. In this regard reference can be made
profitably to the following holdings in
Hussainara Khatoon and others (IV) v.
Home
Secretary,
State
of
Bihar,
Patna14made after referencing Article 39A
of the Constitution of India:

"7.....This Article also emphasises that
free legal service is an inalienable element
of 'reasonable, fair and just' procedure for
without
it
a
person
suffering
from
economic or other disabilities would be
deprived of the opportunity for securing
justice. The right to free legal services is,
therefore, clearly an essential ingredient of
'reasonable, fair and just, procedure for a
person accused of an offence and it must be
held 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 theneeds of justice so required,
provided of course the accused person does
not object to the provision of such lawyer."

17. The need to rescue the credibility
of the legal system and restore the faith of
the common man in the justice system was
emphasized in following terms:

"9. We may also take this opportunity
of impressing upon the Government of
India as also the State Governments, the
urgent necessity of introducing a dynamic
and
comprehensive
legal
service
programme with a view to reaching justice
to the common man. Today, unfortunately,
in our country the poor are priced out of the
judicial system with the result that they are
losing faith in the capacity of our legal
system to bring about changes in their life
conditions and to deliver justice to them.
The poor in their contract with the legal
system have always been on the wrong side
of the law. They have always come across
"law for the poor" rather than "law of the
poor". The law is regarded by them as
something mysterious and forbiddingalways taking something away from them
and not as a positive and constructive social
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
735
device for changing the socio economic
order and improving their life conditions by
conferring rights and benefits on them. The
result is that the legal system has lost its
credibility for the weaker sections of the
community. It is, therefore, necessary that
we should inject equal justice into legality
and that can be done only by dynamic and
activist scheme of legal services. ....We
would
strongly
recommend
to
the
Government of India and the State
Governments that it is high time that a
comprehensive legal service programme is
introduced in the country. That is not only a
mandate of equal justice implicit inArticle
14and right to life and liberty conferred by
Article 21, but also the compulsion of the
constitutional directive embodied in Article
39A."
(emphasis supplied)
True then, true now.

18. The courts too have a duty to
ensure that prisoners appearing in criminal
proceedings have access to legal aid.
Courts cannot remain mute spectators when
legal aid is denied to prisoners in legal
proceedings before them.

19. The trial courts stand at a vantage
point in these matters and are best
circumstanced to understand the need of
legal aid of the prisoners appearing before
them.

20. The Supreme Court in Khatri
and others (II) v. State of Bihar15 and
others recognized pervasive legal illiteracy
in the country and cast an obligation on
trial judges to bring about the fruition of
the rights of prisoners to free legal aid in
the following terms:

"But even this right to free legal services
would be illusory for an indigent accused
unless the magistrate or the Sessions Judge
before whom he is produced informs him of
such right. It is common knowledge that
about 70 per cent of the people in the rural
areas are illiterate and even more than that
percentage of people are not aware of the
rights conferred upon them by law. There is
so much lack of legal awareness that it has
always been recognised as one of the
principal items of the programme of the legal
aid movement in this country to promote
legal literacy. 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. The magistrate or the sessions judge
before whom 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, he is entitled to obtain free legal
services
at
the
cost
of
the
State.
Unfortunately, the judicial magistrates failed
to discharge this obligation in the case of the
blinded prisoners and they merely stated that
no legal representation was asked for by the
blinded prisoners and hence none was
provided. We would, therefore, direct the
magistrates and Session 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, he must be provided legal
representation at the cost of the State."

Prophetic
words
which
fell
on
institutions with short memories.

21. The aforesaid propositions are
entrenched
in
the
body
of
judicial
precedents as is evident from readings of
736 INDIAN LAW REPORTS ALLAHABAD SERIES
Madhav Hayawadanrao Hoskot v. State
of Maharashtra16 and Suk das v. Union
Territory of Arunachal Pradesh17 and
State of Andhra Pradesh v. Challa
Ramkrishna Reddy18.

22. The right to free legal aid,
responsibility of the trial courts and the
Government is stated in Section 304 of the
Code of Criminal Procedure:

"304. 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."

V. Legal Aid: B. Statutory Scheme of
LSA Act, 1987

23. The need for a specific statute and
independent statutory authorities to provide
"free legal and competent legal services (to
the weaker sections of the society) to
ensure that the opportunities of securing
justice are not denied to any citizens by any
reason of economic and other disabilities",
was acknowledged by the legislature when
it enacted the Legal Services Authorities
Act, 1987 (hereinafter referred to as the
"Act", 1987).

24. The Act is a welfare legislation.
Settled canons of statutory interpretation
will guide the court in construing the
provisions of the Act. Cases in point settle
the proposition that welfare legislations are
liable to be interpreted liberally to ensure
that beneficent measures contemplated by
the legislature reach eligible persons.

25. The proposition will be reinforced
by authorities. K.H.Nazar v. Mathew
K.Jacob and others19 held that:

"Provisions of a beneficial legislation
have to be construed with a purposeoriented approach. The Actshould receive a
liberal construction to promote its objects.6
Also, literal construction of the provisions
of a beneficial legislation has to be
avoided. It is the Court's duty to discern the
intention of the legislature in making the
law. Once such an intention is ascertained,
the statute should receive a purposeful or
functional interpretation."

[Also
see:
Union
of
India
v.
Prabhakaran
Vijaya
Kumar
and
others20, and Allahabad Bank and
another v. All India Allahabad Bank
Retired Employees Association.21]

26. Relevant provisions of the Act are
discussed in the paragraphs that follow.
Section 2 of the Act is the definition clause.
Section 2 (aaa), section 2(c) and section
2(g) of the Act define "court", "legal
service" and "scheme" respectively.
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
737

27. Section 2(aaa) is extracted below:

"Section 2 (aaa). "court" means a civil,
criminal or revenue court and includes any
tribunal or any other authority constituted
under any law for the time being in force,
to
exercise
judicial
or
quasi-judicial
functions."

28. The definition of the word "court"
is exhaustive. The vast reach of the
provision
envisages
all
proceedings
pending before various courts and legally
constituted tribunals and authorities where
a lis can be instituted, and rights of citizens
will be engaged and adjudicated as per law.
Trial courts, revising courts and appellate
courts alike come within the purview of the
provision.

29. Section 2(c) of the Act reads as
under:

"Section 2(c). legal service" includes
the rendering of any service in the
conduct of any case or other legal
proceeding before any court or other
authority or tribunal and the giving of
advice on any legal matter."

30. The provision contains an
inclusive definition of "legal service" and
recognizes
various
collateral
services
which are integral to providing fruitful
legal
aid
in
the
conduct
of
legal
proceedings or giving legal advice. The
wide ambit of the provision ensures that
legal aid is not curbed by a constricted
understanding, and legal services are
rendered effectively.

31. The construction of the words
"means" and "includes" used in the definition
clauses in section 2(aaa) and section 2(c) is
assisted by this iteration in Bharat Coop.
Bank (Mumbai) Ltd. v. Coop. Bank
Employees Union22 by holding thus:

"When in the definition clause given in
any statute the word "means" is used, what
follows is intended to speak exhaustively.
The use of the word "means" indicates that
the "definition is hard and fast definition, and
no other meaning can be assigned to the
same. On the other hand, when the word
"includes" is used in the definition, the
legislature does not intend to restrict the
definition.
It
makes
the
definition
enumerative and not exhaustive. That is to
say, the term defined will retain its ordinary
meaning but its scope would be extended to
bring within its matter, which in its ordinary
meaning may or may not comprise."

32. Section 2(g) of the Act reads as
under:-

"Section 2(g). scheme" means any
scheme framed by the Central Authority, a
State Authority or a District Authority for the
purpose of giving effect to any of the
provisions of this Act."

33. The provision imparts statutory
flavour to the schemes framed by various
authorities under the Act. This creates
enforceable rights in favour of the recipient
and enhances efficacy of the schemes for
legal aid.

34. Section 3 and Section 3A constitute
National Legal Services Authority and the
Supreme Court Legal Services Committee
respectively.23 I

35. Section 6 constitutes the State
Legal Services Authority. Section 8A and
Section 9 constitute High Court Legal
Services Committee and District Legal
Services Authority respectively.24ii
738 INDIAN LAW REPORTS ALLAHABAD SERIES

36. Section 7 of the Act which defines
the functions of the State Authority has a
direct bearing on the controversy and is
being reproduced below:

"Section 7. Functions of the State
Authority-(1) It shall be the duty of the
State Authority to give effect to the policy
and directions of the Central Authority.

(2) Without prejudice to the generality
of the functions referred to in sub- section
(1), the State Authority shall perform all or
any of the following functions, namely,-

(a) give legal service to persons who
satisfy the criteria laid down under this Act;

(b) conduct Lok Adalats, including
Lok Adalats for High Court cases;

(c) undertake preventive and strategic
legal aid programmes; and

(d) perform such other functions as the
State Authority may, in consultation with
the Central Authority, fix by regulations."

37. Among other functions the statute
unequivocally enjoins upon the State
Authority to give legal aid to persons who
satisfy the criteria laid down under this Act,
and to undertake "preventive and strategic
legal aid programmes". The power to
undertake legal aid programmes by creating
various schemes and procedures is guided
in broad and conceptual terms, and not by a
minutely detailed framework.

38. The meaning of "strategic" in
Oxford dictionary is "forming part of a
long-term plan or aim to achieve a
specific
purpose."
The
meaning
of
"preventive" is "designed to prevent
something from occurring." The words
"strategic" and "preventive" in Section 7
are of wide import which envisage the
State
Legal
Services
Authority
to
independently and proactively create
schemes to provide legal aid and prevent
miscarriage of justice.

39. Entitlement to legal services is
provided for in Chapter IV. Section 12 of
the Act25iii contains the criteria for
giving legal services. Section 12(e) of the
Act is germane to the controversy and is
extracted below:-

"Section
12(e)
a
person
under
circumstances of underserved want such
as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood,
drought,
earthquake
or
industrial
disaster."

40. The eligibility criteria for giving
legal services under Section 12(e) is
broad based.

The
breadth
of
the
provision
manifests the legislative intent to reach
out to the last person at the bottom of the
social heap. The section contemplates to
give legal aid to persons who suffer from
deprivation and exclusion caused by
circumstances of want which are not of
their making.

Under the provision persons facing
circumstances
of
"undeserved
want"
become entitled for legal services. The
phrase "undeserved want" is generic in
nature. The word "such as" precedes the
examples of "undeserved want" described
in
the
section.
The
instances
of
"undeserved
want"
depicted
in
the
provision
are
illustrative
and
not
exhaustive, and are in the nature of
externalities i.e. adverse circumstances
over which a person has no control and
which prevent recourse to justice.

The phrase "undeserved want" in the
statute is not a fixed concept but an
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
739
evolutionary exercise. The State Legal
Services Authority is mandated to enquire
whether the circumstances of a person
being considered for legal aid fall within
the sweep of "undeserved want".

41. The entitlement to legal services
of persons who satisfy any of the criteria
laid down in Section 12 of the Act is vested
by virtue of Section 13 of the Act.

"Section 13. Entitlement to legal
services.-(1) Persons who satisfy or any of
the criteria specified in section 12 shall be
entitled to receive legal services provided
that the concerned Authority is satisfied
that such person has a prima-facie case to
prosecute or to defend.

(2) An affidavit made by a person as to
his income may be regarded as sufficient
for making him eligible to the entitlement
of legal services under this Act unless the
concerned
Authority
has
reason
to
disbelieve such affidavit."

42. A conjoint reading of various
provisions detailed above establishes that
for grant of aid the legislature has made no
distinction between persons who are
imprisoned for heinous offences or non
heinous crimes. Further, eligible persons
are entitled to legal services at any stage of
proceedings (whether pre trial, trial or
appeal or revisional) which he or she is
prosecuting or defending. (Ref: Rajoo
alias Ramakant Vs. State of Madhya
Pradesh26).

43. Under the scheme of the Act the
Legal Services Authorities also have to suo
moto initiate the process of identifying
classes of persons who face circumstances
of "undeserved want", educate them on
their right to legal aid, frame schemes,
determine the nature of legal services
required in the case, and give them
requisite legal services.

44. The statute envisages that the
arms of law are long enough to reach
injustice. The constitution ensures that the
arms of courts are strong enough to serve
justice.

45. In light of the scheme of the Act
thus discussed, I hold that persons who
cannot file bail applications before the
competent court due to these reasons.

(a) they do not have resources to do
so,

(b) have been abandoned by friends
and family after their incarceration,

(c) do not have any pairokar,

(d) have not been educated of their
right to move a bail application without
delay; are victims within the scope of
"undeserved want".

46. Such class of persons are entitled
to legal services, the nature of which has to
be decided by the statutory authorities.

47. Similarly there are persons who
fail to file bail applications before the trial
court in a timely manner after their
detention, or do not expeditiously approach
the High Court for bail after the rejection of
their bail applications by the trial court. The
said cases prima facie fall within the ambit
of "undeserved want", subject to enquiry by
the State Legal Services Authority or the
District Legal Services Authority.

V.
Legal
Aid:
C.
Instances
and
Consequences of denial of legal aid

48. The applicant was in jail since
06.12.2017. He was able to file a bail
application before the trial court in 2019
740 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e. after a delay of more than one year. The
bail application was rejected on 04.06.2019
by the trial court. He could approach this
Court for bail only in the year 2022 i.e.
three years after the trial court refused him
bail.

49. The applicant was delayed in
taking recourse to legal remedies and
securing justice because of financial
penury, lack of legal awareness, absence of
pairokar and denial of legal aid.

50. This case is not a one off. While sitting
in bail jurisdiction, I noticed a number of
cases where bail applications were filed
after
inordinate
delays
because
the
prisoners did not have access to legal aid.
The other category of cases was where bail
applications
could
be
filed
but
lay
unattended in the cold storage of the
Registry. In the latter cases lack of funds
and absence of pairokars led to ineffective
prosecution causing indefinite delays in
hearing.

And so the prisoners wait resigned to
their fate.

51. Some like cases which were
pointed out by the members of the Bar.

[I. Rajnish v. State of U.P. in Criminal
Misc. Bail Application No.20805 of 2022,
II. Chhotey vs. State of U.P. in Criminal
Misc. Bail Application No.5328 of 2018,
III. Mahesh Chandra Shukla v. State of U.P.
in
Criminal
Misc.
Bail
Application
No.17940 of 2022, IV. Vikas Dwivedi v.
State of U.P. in Criminal Misc. Bail
Application No.22375 of 2020 and V.
Ramu Vs. State of U.P. in Criminal Misc.
Bail Application No.17912 of 2019]

52. In Rajnish (supra) the applicant
was in jail since 26.04.2011. The first bail
application was filed by the applicant
before the trial court 11 years after his
imprisonment. The trial had not concluded
when the applicant was enlarged on bail by
this Court on 06.08.2022. While granting
bail the Court was constrained to hold:

"This is the first bail application which
has been moved by the applicant before this
Court. The applicant belongs to the bottom
heap
of
humanity
and
unfortunately
forgotten class of citizens. He did not have
the resources to engage a counsel nor was
he given to access to legal aid for these
long years. Constitutional promise of
securing justice has been denied to him.

However, it is for all instruments of
governance, the trial courts, the police
authorities, the legal services authorities to
introspect and bring about necessary
systemic corrections with the conviction
that such a state of affairs will not be
repeated. Never again. The District Legal
Services Authority in the State of Uttar
Pradesh shall draw up a list of prisoners
who are incarcerated for long period and
examine whether they have not been able to
move bail applications due to penury and
lack of access to legal aid. Corrective
measures should accordingly be taken.
Legal aid workshop should be conducted in
every jail in the State of Uttar Pradesh to
ensure that such grievances are promptly
redressed."

 (emphasis supplied)

53. In Ramu (supra) the applicant
was in jail since 14.02.2008. The first bail
application was rejected by this Court on
15.11.2008. The applicant was able to file
the second bail application before the High
Court in 2019 i.e. more than 11 years after
the rejection of first bail application by this
Court. Thereafter, further three years delay
occurred in hearing of the bail due to
11 All. Anil Gaur @ Sonu @ Sonu Tomar Vs. State of U.P.
741
applicant's
inability
to
file
listing
application and effectively prosecute them.
The trial had not concluded when the bail
was granted by this Court on 16.07.2022.

54. In Chhotey (supra) the applicant
was in jail since 22.02.2014. The first bail
application of the applicant was rejected by
this Court on 19.08.2014. The second bail
of the applicant was filed more than three
years after the rejection of first bail
application by this Court. Further four
years delay happened as the applicant
lacked resources to file listing applications
and prosecute them effectively.

55. It is noteworthy that in Chhotey
(supra) the trial proceedings came to a halt
in the year 2012 when the records of the
trial court were transmitted to this Court.
During eight years of imprisonment of the
applicant the trial was at a stand-still. While
granting bail to the applicant on 16.03.2022
in Chhotey (supra) this Court made these
observations :

"The comments of the trial judge
indicate that the records of the case were
transmitted to this Court in compliance of
the orders passed on 12.09.2012. In the
comments sent by trial judge it is further
stated that in the absence of the records the
Sessions Trial No. 956 of 2013 (State Vs
Chhotey)
cannot
proceed.
Without
availability of original documents including
the case diary the applicant could not be
charged by the trial court. As per the
comments of the trial court various
communications were sent by the trial court
on 28.03.2014, 27.09.2014, 14.01.2020,
15.01.2021, 04.08.2021 to the High Court.
However the records have not yet been
transmitted to the trial court. From the
aforesaid submissions as well as the
records available before this Court it
appears that the applicant has been in
detention since 22.02.2014 but has not been
charged by the trial court till date. The trial
against the applicant is yet to commence."

 (emphasis supplied)

Denial of legal aid was highlighted in
the aforesaid order.

56. In Vikas Dwivedi (supra) the
applicant was in jail since 05.03.2013. The
applicant was able to file the bail
application before the trial court more than
four and half years after his imprisonment.
He could file the first bail application
before this Court more than six months
after the rejection of his bail by the trial
court. The first bail application of the
applicant was rejected by this Court on
17.05.2018. The second bail of the
applicant was filed more than two years
after the rejection of first bail application
by this Court. Thereafter, further two years
of delay was occasioned due to lack of
resources to file listing applications and
prosecute the same effectively. When the
applicant was granted bail by this Court on
17.02.2022 the trial had not concluded.

57. In Mahesh Chandra Shukla
(supra) the applicant was in jail since
12.07.2009. The fourth bail was filed nine
years after the rejection of the third bail.
Trial had not concluded when bail was
granted by this Court on 29.08.2022.

58. Many of the aforesaid bail
applications were delayed second or
subsequent bail applications before this
Court.

The grounds for second or subsequent
bail applications can be promptly advised
to prisoners only when they have regular
and unimpeded access to legal aid.
742 INDIAN LAW REPORTS ALLAHABAD SERIES

59. The failure of justice in the said
cases was occasioned by poverty, social
exclusion,
legal
illiteracy,
impersonal
administration and denial of legal aid.

Exactions of poverty are more severe
than punishments in law. For them the
glorious dawn of the 75th year of
independence has lost the sheen of
freedom's ideals and the substance of the
republic's promise.

60. Injustice is the birthmark of a
slave nation. Justice is the birthright of a
free people and our constitution says they
shall have it.

The resolve of the "people of India" to
secure justice for all citizens was embedded
in the Constitution of India.

61. All stakeholder institutions have
to pause and reflect. The judiciary too have
to turn the searchlights inwards. The courts
have the power to judge, but cannot escape
the judgement of the nation's collective
conscience. Independence of judiciary is
strengthened by honest introspection and
self correction.

62. The Bar of the Allahabad High
Court spoke for prisoners who had lost their
voice, and worked tirelessly without thought
of remuneration or expectation of reward.
The learned counsels uphold the highest
traditions of the profession, and shine light on
the hallowed heritage of this Court.

63. Shri Ajay Kumar Pathak, learned
counsel, Shri Saurabh Yadav, learned counsel,
Shri Anil Kumar Srivastava, learned counsel,
Ms.Ushma Mishra, learned counsel and Shri
Ashish Kumar Singh, learned counsel and
Shri Rishi Chaddha, learned A.G.A. and Shri
Paritosh Kumar Malviya, learned A.G.A. in
the aforesaid cases respectively deserve
fullest appreciation. In such matters, Shri N.I.
Jafri, learned Senior Counsel assisted by Ms.
Nasira Adil, learned counsel, Ms. Gunjan
Jadhwani, learned counsel, Shri Omar Zamin,
learned counsel and Shri Rajrshi Gupta,
learned
counsel
have
unconditionally
volunteered to take up the causes. The
learned counsels have always assisted the
Court
competently.
They
researched
painstakingly and argued with ability.

V. Legal Aid: D. NLSA Scheme for Legal
Aid

64. The plight of prisoners who suffer
long incarcerations due to interminable
delays in the criminal justice system was
noticed by the Supreme Court.