Legal aid from the point of arrest judgments

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  • 1. Judgments on:Accused Persons’ Rightson ArrestDebashisHRLN, Kolkata
  • 2. Joginder Kumar’s case(1994) 4 SCC 260• The power to arrest without a warrantshould be exercised only after areasonable satisfaction is reached, aftersome investigation, as to the genuinenessand bona fides of a complaint and areasonable belief as to both the person’scomplicity as well as the need to effectarrest.
  • 3. Joginder Kumar’s case(1994) 4 SCC 260• Except in heinous offences, an arrest mustbe avoided if a police officer issues noticeto the person to attend the police stationand not leave the station withoutpermission
  • 4. Prem Shanker Shukla’s Case(1980) 3 SCC 526• Right not to be handcuffed or chained orroped• Also in Citizen for Democracy v. State ofAssam [(1995) 3 SCC 743]
  • 5. D.K. Basu’s caseAIR 1997 SC 610• Apart from informing the person arrestedof the above rights, the police should alsoinform him of his right to consult and bedefended by a lawyer of his choice.• He should also be informed that he isentitled to free legal aid at state expense
  • 6. Prabha Dutt’s Case(1982) 1 SCC 1• Right of Media persons to interview anarrestee in custody
  • 7. Sheela Barse’s Case(1983) 2 SCC 96• Whenever a person is arrested by thepolice and taken to the police lock up, thepolice will immediately give an intimationof the fact of such arrest to the nearestLegal Aid Committee and such Legal AidCommittee will take immediate steps forthe purpose of providing legal assistanceto the arrested person at State cost
  • 8. Sheela Barse’s Case(1983) 2 SCC 96• Preferably a lady Judge, shall makesurprise visits to police lock ups in the cityperiodically with a view to providing thearrested persons an opportunity to air theirgrievances and ascertaining the conditionsin the police lock ups and whether therequisite facilities are being provided andthe provisions of law are being observed
  • 9. Sheela Barse’s Case(1983) 2 SCC 96• As soon as a person is arrested, the policemust immediately obtain the name of anyrelative or friend and should get in touchwith such relative or friend and inform himabout the arrest
  • 10. Shobharam’ CaseAIR 1966 SC 1910• The right to counsel applies at all custodialinterrogations and at all critical stages of aprosecution after formal proceedings havebegun. These stages include post-indictment interrogations, arraignment,guilty plea, and trial.
  • 11. Khatri & Ors -Vs.- Bihar(1981) 1 SCC 627• Decisions of the court made without theaccused having been provided a lawyerare not valid• Accused to be informed by Court of rightto free legal aid at State cost• Accused is entitled to compensation forviolation
  • 12. Nandini Satpathy’s Case(1978) 2 SCC 424• The right to consult an advocate of his choiceshall not be denied to any person who isarrested.• The spirit and sense of Article 22(1) is that it isfundamental to the rule of law that the servicesof a lawyer shall be available for consultation toany accused person under circumstances ofnear custodial interrogation.• Moreover, the observance of the right againstself-incrimination is best promoted by concedingto the accused the right to consult a-legalpractitioner of his choice.
  • 13. Nandini Satpathy’s Case(1978) 2 SCC 424• Lawyers presence is a constitutional claimin some circumstances in, our countryalso, and, in the context of Article 20(3), isan assurance of awareness andobservance of the right to silence
  • 14. Nandini Satpathy’s Case(1978) 2 SCC 424• Not that a lawyers presence is a panacea for allproblems of involuntary self-crimination, for he cannotsupply answers or whisper hints or otherwise interferewith the course of questioning except to intercept whereintimidatory tactics are tried, caution his client whereincrimination is attempted and insist on questions andanswers being noted where objections are not otherwisefully appreciated.• He cannot harangue the police but may help his clientand complain on his behalf, although his very presencewill ordinarily remove the implicit menace of a policestation
  • 15. Nandini Satpathy’s Case(1978) 2 SCC 424• “…We realize that the presence of a lawyer isasking for the moon in many cases until a publicdefender system becomes ubiquitous...”• The police need not wait more than for areasonable time for an advocates arrival. Butthey must invariably warn-and record that factabout the right to silence against self-incrimination; and where the accused is literatetake his written acknowledgement
  • 16. Smt. Selvi & Ors Vs. Karnataka(2010) 7 SCC 263• Article 20(3) not only a trial right but itsprotection extends to the stage of investigationalso• Compulsory involuntary administration of theNarcoanalysis, polygraph examination and theBrain Electrical Activation Profile (BEAP)violates the `right against self-incriminationenumerated in Article 20(3) of the Constitutionas the subject does not exercise consciouscontrol over the responses during theadministration of the test.
  • 17. CHRI Vs. State of West BengalW.P. 56 of 2013 – Calcutta HC• A panel of Legal Aid Lawyers should bepresent in each Court hearing remandapplications, so as to ensure thatarrestees who cannot afford a defencelawyer is provided with a lawyer at State’scost right from the date of first production
  • 18. Bal Bahadur Vs. Customs OfficerCrl. A. No. 12/2009 – Delhi HC• To ensure quality legal aid –Separate panel of trial court lawyers comprisingsenior lawyers of not less than 10 years or moreexperience and associate lawyers of not lessthan five years to defend the indigent accusedfacing trial for commission of offencespunishable with sentence of seven years andmore