Delhi High Court: In a petition filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to set aside the order dated 05-10-2024, passed by the Additional Sessions Judge, South East District, Saket Courts, New Delhi (‘Sessions Court’), Swarana Kanta Sharma, J., stated that in the present case, it was the duty of both the Magistrate and the Sessions Court to assist the complainant, who remained practically unassisted despite being assigned a legal aid counsel. The Court stated that it was difficult to comprehend how a complainant who lacked legal assistance could be blamed for the non-appearance of his legal aid counsel and held responsible for not diligently pursuing his case, even when he himself appeared on every date of hearing.
Thus, the Court directed that the complaint filed by the petitioner before the Magistrate to be restored to its original number and its stage and be listed for pre-summoning evidence. Further, the Court directed the Secretary, DLSA to ensure that an appropriate mechanism was put in place to monitor the appearance of legal aid counsels, where they have been appointed, in all the District Courts of Delhi.
Background
On 27-02-2018, the petitioner was repairing the roof of his house along with his wife, when Respondent 2, accompanied by two unidentified persons, had come to the roof of the adjoining building. Respondent 2 and his associates had started abusing the petitioner and his wife and had threatened to kill both. They had then demolished the top wall of the petitioner’s property with the intent to harm him and his wife. Luckily, the petitioner and his wife had managed to escape before the wall could be demolished.
Thereafter, the police arrived, and the petitioner’s statement was recorded. Since, no action was taken by the police, the petitioner filed a formal written complaint to the SHO of the Police Station Amar Colony, Delhi. Despite this, no action was taken on his complaint, nor had a FIR been registered.
Subsequently, the petitioner filed an application under Section 156(3)1 of Criminal Procedure Code, 1973 (‘CrPC’) before the Magistrate seeking a direction for the registration of a FIR against Respondent 2 and 3, and the unknown associates of Respondent 2. Consequently, the Magistrate on 04-05-2024 had dismissed the petitioner’s complaint, under Section 2032 of CrPC for there being no evidence to take cognizance of complaint, as well as for non-prosecution.
Aggrieved by the order of dismissal, the petitioner had filed a criminal revision petition before the Sessions Court, who had vide the impugned order, dismissed the petition on the grounds that the petitioner had not filed any complaint against the legal aid counsel, appointed by the Delhi Legal Services Authority (‘DLSA’).
Analysis, Law, and Decision
The Court stated that in the present case, the petitioner’s situation highlighted the challenges faced by the individuals from disadvantaged backgrounds, when they depend on the legal aid system. It raised concerns about whether sufficient safeguards were in place to protect the interests of such petitioners and ensure their right to effective legal representation.
The Court stated that for an uneducated individual, who could not afford to hire a private lawyer, the appointment of a legal aid counsel was a significant source of hope. However, as a layman, the petitioner would have lacked both the legal knowledge and the confidence, and it would have been difficult for him to find the courage or resolve to file a complaint against his legal aid counsel. The Court stated that the Sessions Court ought to have considered that, it would have required significant courage for the complainant to lodge a complaint against his own legal aid counsel, given his social and educational limitations.
The Court stated that in the present case, the reasons behind the consistent non-appearance of the legal aid counsel, despite being appointed to assist the complainant, remained unclear. However, a perusal of the orders passed by the Magistrate and the Sessions Court reflected a lack of empathy and any initiative on their part to find out as to why the appointed counsel was consistently absent. There was no effort to inquire whether the petitioner still required legal aid or if there were underlying reasons for the counsel’s non-appearance. The Court stated that the lack of efforts by the Courts below to probe into the reasons for absence of legal aid counsel, and the failure to provide adequate support spoke volumes about the manner in which the legal system sometimes handles vulnerable individuals.
The Court stated that in the circumstances of the present case, it was the duty of both the Magistrate and the Sessions Court to assist the complainant, who remained practically unassisted despite being assigned a legal aid counsel. The Court stated that it was difficult to comprehend how a complainant who lacked legal assistance could be blamed for the non-appearance of his legal aid counsel and held responsible for not diligently pursuing his case, even when he himself appeared on every date of hearing. Instead of aiding the complainant in securing justice despite his financial challenges, the system became an obstacle in his path to justice.
Thus, the Court directed that the complaint filed by the petitioner before the Magistrate to be restored to its original number and its stage and be listed for pre-summoning evidence. Accordingly, the Court set aside the impugned orders of the Sessions Court and the Magistrate. The DLSA concerned was requested to ensure that a legal aid counsel was appointed at the earliest, and the Magistrate was directed that the pre-summoning evidence in this case be concluded within two months.
The Court stated that the present judgment was only an attempt to put in place a mechanism to address delays caused by the non-appearance of legal aid counsels and to prevent the dismissal of cases involving individuals who were already vulnerable and seeking justice.
Therefore, the Court directed the Secretary, DSLSA, to ensure that an appropriate mechanism was put in place to monitor the appearance of legal aid counsels, where they have been appointed, in all the District Courts of Delhi. It must be ensured that legal aid counsels duly inform the Secretary of the DLSA concerned about their regular appearances in the cases assigned to them.
The Court stated that the DSLSA should also devise a framework to address situations where a legal aid counsel failed to appear for two consecutive dates in a case, ensuring that timely and effective steps were taken to safeguard the interests of the litigants. The DSLSA should also consider establishing a review or grievance redressal mechanism to enable litigants to report instances of non-representation by legal aid counsels, so that corrective measures could be taken without undue delay. Further, the judicial officers should also be sensitized and encouraged to ensure that such cases were brought to the notice of Secretary, DSLSA concerned, in case of non-representation where a legal aid counsel was appointed. Compliance report in this regard, was filed before this Court by the Secretary, DSLSA within six weeks from date.
[Bachittar Singh v. State (NCT of Delhi), CRL.M.C. 240 of 2025, decided on 29-01-2025]
Advocates who appeared in this case :
For the Petitioner: Archit Upadhyay, Advocate
For the Respondents: Rajkumar, APP along with SI Himanshu Kumar Dubey, PS Amar Colony.
Buy Code of Criminal Procedure, 1973 HERE
1. Section 175 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’)
