ORDER
K. Lahiri, J.
1. These are applications for issuance of Writs of Habeas Corpus in view of alleged ‘illegal detentions’ of the petitioners under the guise of the “Judicial Process”. Upon hearing adept and accomplished arguments of Mrs. V. L. Talukdar, Mrs. A. Hazarika, Miss K. Das and Mr. G. K. Bhattacharjee, the learned Counsel appointed as “Amicus Curiae” as well as Mr. K. K. Bezbaruah, Standing Counsel, Mizoram, I feel inclined to outline the broad features of the State’s responsibility to provide legal aid as well as the necessity of quick disposal of cases in Mizoram. It appears that the Governments of the region have not paid necessary heed to several landmark cases of the Supreme Court on the points.
2. Hoskot
ushered a new era in Criminal Jurisprudence and Constitution. It laid bare the true meaning of the expression “Procedure” in Article 21. It has ruled that the word “procedure” in the expression “procedure established by law” in Article 21, means “fair, reasonable and just” and not arbitrary, fanciful or oppressive; and the word “Law” means “reasonable law, not merely an enacted piece”. The Supreme Court heavily relied on the observations of Bhagwati, J, in the “landmark case” of Maneka Gandhi,
. In Hoskot, their Lordships set out the relevant ingredients of “fair procedure”. The components illustrated are not exhaustive. The illustrated ingredients are: (1) Natural Justice, (2) Right of Appeal, where criminal conviction is likely to deprive liberty, subject to just exceptions. To prefer an appeal, (a) service of a copy of the judgment to the accused; (b) providing free legal services to those “prisoners” who are indigent or otherwise disabled from securing legal assistance, where the ends of justice call for such services, are essential elements. Clause (a) and (b) are the State responsibilities under Article 21. The third component is “Lawyer’s Services”. In considering the imperative need for providing “free legal services” their Lordships relied on the observations of the eminent Jurist Prot Vence of Yale, “Gideon’s trumpet” of Black, J. stimulating philosophy of Legal Aid by Mr. Justice Brennan, quotes from “the Poverty Jurisprudence of Douglas, J. in Jon Richard Agrersinger v. Raymond, (which is known as Raymond’s case) reported in (1972) 407 US 25 : 32 L Ed 530 (535-36 & 554), Article 8 of the Universal Declaration of Human Rights, Article 14 (3) of the International Covenants on (Civil and Political Rights) and extracted from the report of High Powered Committee on Free Legal Aid. “Processual Justice to the People”, May 1973 P. 34 Para 93. Their Lordships took note of the efforts made by the Central and State Governments, pointed to Article 39-A as a “Fundamental Constitutional Directive” and described the Article as an “interpretative tool” for Article 21. It has been held that providing legal aid to the deserved “is a State’s duty and not Government’s charity… legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated, for his service.” The Supreme Court ruled the legal position “to put it beyond doubt”, amongst others, the follows:
1 to 3... ... ... 4. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so require, assign competent counsel for the prisoner's defence, provided the party does not object to that lawyer; 5. The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay assigned counsel such sum as the Court may equitably fix. 6. These benign prescriptions operate by force of Article 21 (strengthened by Article 19(1) read with Sub-article (5)) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril. 3. Items 1, 2 and 3 have been omitted as they relate to furnishing of copies and the duties of the jail administration.
4. The declaration of the above law must be obeyed by all State Govts. expeditiously. The duties and obligations of the State Governments have been clearly indicated. The High Courts are bound to see that the commands of the Supreme Court are followed in every nook and corner of India. A common striking feature which pervades in Hoskot 1978 Cri LJ 1678(SC) (supra), the Prisons Reforms case of Sunil Batra
, Hus-sainara Khatoon’s cluster of Cases (I to VI, post) and Niemeon Sangma (Post), is that the orders of the Supreme Court travelled beyond the immediate parties and were not confined to the cases alone, Distinguishing features of one case tormented the judicial mind that innumerable prisoners in the country belonging to the lower, illiterate bracket were suffering deprivation of liberty by unreasonableness, arbitrariness and unfair procedure inside the “stone walls” and behind the “iron bars”, in complete disregard of the norms of justice, guaranteed by and under Article 21 buttressed by Article 19(1) (d) read with Sub-article (5). It impelled the Supreme Court to declare laws for the entire prison population.”
5. In Hussainara Khatoon (No. I),
, the existing bail system came under heavy fire by Bhagwati, J. (for himself and Koshal, J.). The system was declared to be oppressive and discriminatory against the poor. Their Lordships prescribed the contingencies when the Court should permit prisoners having “roots in the community” to be released on personal bond. Their Lordships have expressed that the fight to speedy trial is a part of Article 21 and prolonged detention violates Article 21. However, their Lordships left open the consequences if an accused is denied speedy trial and “is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21” (underscored by me). The steps in aid to speedy trial were emphasised thus:
But one thing is certain and we cannot impress it too strongly, on the State Government, that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice… it would not be enough merely to establish more courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges, such as improving their conditions of service would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is today a meaningless and empty word.
(underscored by me).
6. I would add that in the matter of Investigation of cases, the police administration is an integral part and the said administration must be geared up. Contributing factors for delay in investigation as well as trials are denial of certain essential working facilities to those directly and immediately connected with the investigation and trial of cases including the subordinate judiciary. Such working facilities include housing facilities, equipment, personal, stationary and the conditions of service. An eminent Jurist, Shri U. Buxi, has very rightly pointed out that “This denial of basic facilities is so systematic that every time, rather than project the reality of planned neglect, it has almost assumed the visage of being a natural fact concerning administration of justice.” The observations are as true as the principles of law that “Justice delayed is justice denied”. To secure amelioration in the working condition of subordinate judiciary is the prime duty and responsibility of the respective Governments. The High Courts have supplementary role to play. The mandates for expeditious justice to undertrial would end in a fiasco and shall remain a pious wish without gearing up of the conditions of investigation and trial machinery,
7. Skipping over Hussainara Nos. II and III, if we turn to No. V Case,
, we note several observations of the Supreme Court regarding the time-bound provision of Section 167(2) Proviso (a) of the Cr.P.C. It is imperative duty of a Magistrate, as pointed out, to inform a prisoner that he is entitled to be released on bail if he has been in detention for 90 days or 60 days, as the case may be. It has been observed (at p. 1054 of Cri LJ).
The State Government must also provide at its own cost, a lawyer to the undertrial prisoner with a view to enabling him to apply for bail in exercise of his right under proviso (a) to Sub-section (2) of Section 167 and the Magistrate must take care to see that the right of the under-trial prisoner to the assistance of a lawyer provided at State cost is secured to him… we hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrate….
(Emphasis supplied).
Their Lordships have reiterated that it Is a constitutional right of every accused who is unable to engage a lawyer and secure legal services on account of poverty, indigence or incommunicado situation to have free legal service provided to him by the State. The State is under a constitutional mandate to provide a lawyer to such accused. Their Lordships observed:
This constitutional obligation cannot wait any longer for its fulfilment, since more than 30 years have passed from the date of enactment of the Constitution and no State Government can possibly have any alibi for not carrying out this command of the Constitution.
Their Lordships warned:
If free legal services are not provided to such an accused, the trial Itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality.
What can be culled out from the decisions aforesaid and relevant for the purpose of these cases are that
(A) It is the constitutional right of every prisoner who is unable to engage a lawyer or secure a legal service on account of poverty, indigence or incommunicado situation, to have free legal services provided to him by the State;
(B) States are under constitutional as well as Judge-made mandates to provide such legal services to such accused;
(C) State Governments must set up machinery for providing free legal services to the accused involving possible deprivation of liberty;
(D) When an undertrial prisoner is produced before a Magistrate it is his duty to point out to the accused the wholesome provisions of Section 167(2) proviso (a) and (b) as to his entitlements to be released on bail, on the expiry of 90 days or 60 days, as the case may be, on failure of completion of investigation by the police within the said periods;
(E) To enable such accused to get such relief (as stated in Cl. (D) above), the State Government must also provide at its cost, a lawyer to enable him to apply for bail. It is a constitutional obligation, as the wholesome provisions under Section 167(2) provisos are fair and just procedure contemplated under Article 21;
(F) In default of compliance with the constitutional obligations by the States and the Magistrate, the trials might run the risk of being vitiated as contravening Article 21.
8. I would venture to add that the Magistrate trying criminal cases should also observe carefully the provisions of 8. 437(6) of the Code, which provide that if the trial cannot be concluded within a period of 90 days from the date fixed for taking evidence in the case, such persons shall, if he is in custody during the whole of the said period, be released on bail, unless for reasons to be recorded in writing, the Magistrate otherwise directs. There is a statutory duty of the Magistrate to record reasons in writing and he must give cogent reasons for further detention of the accused charged with non-bailable offences.
9. The learned Standing Counsel submits that, there is no lawyer in Mizoram, and, as such, it is not easy for the Gov- erment to comply with the requirements set forth in Clause (A), (B) and (D). Further, the condition in Mizoram is slightly abnormal in view of insurgency. The so-called activities of insurgency, non-availability of lawyer, in my opinion, cannot be grounds for denial of constitutional rights, to the Mizos. Government must follow the mandates of the Supreme Court and do the needful. The Judiciary Is one of the 3 Agencies created to look ttfter the welfare of the people. We are Dot oblivious of the difficulties of the other Organs. Judiciary is never a competing agency, but is a supplementary and complementary agency of the other two Organs. We have common goal, but the field of functions of Judiciary is quite distinct and separate.
10. Mr. K. K. Bezbarua, learned Standing Counsel for Mizoram submits that the provisions of the Cr. P, C. are Hot applicable in Mizoram, barring Chapters VIII, X and XI. It is high time for the Government, in exercise of its power under Section 1 of the Cr. P. C, to apply the provisions contained in Sections 167 and 437, in Mizoram as these are “fair procedure” contemplated under Article 21. The contention of the learned Counsel that the letter of the provisions of the Criminal Procedure Code as contained in Sections 167 and 437 cannot be applied in Mizoram, is difficult to accept. The provisions are in consonance with the declarations of the Human Rights; the world over, the need of hour is quick disposal of cases and free legal aid. Mizoram cannot be made an exception to provide the two imperative bare necessities which are integral part of human right, on the score that only the spirit of the Cr.P.C. is applicable but not the letter. It has been explained by the Supreme Court as to how the spirit of the Code can be applied, where the letter is not applicable. On the authority of the decision of the Supreme Court in Gurumayum Safchi-gopal Sarma v. K. Onghi Anisija Devi Civil Appeal No. 659 of 1957 decided on B-2-1’961 and the observation of Hidaya-tullah, J. in State of Nagaland v. Ratan Singh , this Court observed in Digendra Kumar Das v. Rosie H. Bikhimi 1977 Assam LR 281 (in para 331 as follows:
I am of the view that the letter of the Code should not be the guide for the Court. No “such courts” derive their power from the Code or exercise any discretion under the Code. They should dispense justice untrammelled by the tech nicalities of the Civil P. C. and should try the suits or proceedings entangled or unravelled or untrammelled by the technicalities of the Code. Their only concern should be to dispense justice in accordance with the principles, of justice, equity and good conscience. If some of the principles of law of universal application, which is in consonance with justice, equity and good conscience, lurk in the Code, the Courts should apply the said immemorial principle which govern Civil litigation and are of universal application.
11. These were my observations in connection with the Civil Procedure Code. I would observe that if any provision accords with the principles of law of universal application and are in consonance with justice, equity and good conscience, as well as in accord with the constitutional mandates, the Government of Mizoram as well as the courts governed by the principles of justice, equity and good conscience are bound to follow the said principles. The principles of free legal aid as well as quick disposal of criminal cases are principles of universal application and have the backings of the constitutional mandates. The Courts are bound to follow them.
12. The Supreme Court had to face similar situation in Nimeon Sangma v. Home Secy., Govt. Meghalaya . A large number of undertrial prisoners were detained in violation of Article 21. Their Lordships pointed out to the provisions of Sections 167, 209 and 309 of the Code. Their Lordships observed that the State was obliged to follow Article 21 and “to comply with the spirit of the Cr. P. C”. There are some flutters in some quarter as to why their Lordships did not refer to 5 landmark cases of Hussainara . In Nimbon Sangma 1979 Cri LJ 941 (SC) their Lordships had to consider the very questions involved in Hussainara but the difference was that in Meghalaya only the spirit of the Code is applicable but not the letter. The decision was rendered on concession, accordingly, their Lordships did not consider it necessary to refer to Gurumayum Sakhigopal Sarma and Ratan Singh (Civil Appeal No. 659 of 1957, D/- 9-2-1961) (SC), as well as the cluster Hussainara’s cases. However, the fact remains that their Lordships issued the same mandate to the area (Meghalaya] where the spirit of the Code is applicable but not the letter. In view of the state of affairs in Mizoram revealed in these cases as well as in very many other cases which have come to light, I direct the State Government to complete the investigation of all pending cases within 6 months from today, where charge sheets have not been laid and further direct the courts to dispose of the case, where the charge-sheets have been submitted, within 6 months from today. I also direct the Government to make available the necessary legal services to the prisoners in Mizoram who are unable to engage lawyers or secure legal services on account of poverty, indigence and incommunicado situation. I also draw the attention of the State to take a policy decision with a view to ensure that accused, too indigent to set in motion the judicial process do not suffer silently their illegal detention in contravention of Article 21. The Government ought to comply with the spirit of the Code of Criminal Procedure or to apply the provisions of Sections 167 and 437 as well as Sections 209, 303, 304 and 309 of the Cr.P.C. in Mizoram. I direct the State Government to issue necessary circular or order to all the Magistrates to carefully implement the provisions of Article 21, Sections 167, 437, 209, 303, 304 and 309 of the Cr.P.C. and the prisoners in jail should be made aware of ‘their rights.”
13. Now, let me turn to decide the individual cases:
Crl. Misc. Case No. 13 (HC) of 1980.
14. In this case, accused Zarzoliana Is a student of Class X in a Government High School and is a peasant as well. He was arrested on 15-2-1979 in connection with G.R. Case No. 38/79 under Section 384 read with Section 511, I.P.C. Till the present day, no charge-sheet has been submitted by the Police. The alleged offences relate to attempt to commit extortion. The ffence of extortion is punishable with imprisonment for three years or fine or both. The period of 90 days is long over. Accordingly the petitioner is entitled to be enlarged on bail under Section 167(2)(a) proviso of the Cr.P.C.
15. However, the petitioner has also been arrested once again, while in jail custody of the police, in connection with an offence allegedly under Sections 302/307/ 326/224/427, I.P.C. The petitioner states that on 23-5-71, when he was being es~. corted to the Court from the District Jail, Aizawl, there was some sort ot incident to attempt to escape from custody by some persons and one person threw chilly powder on the escort party, snatched away rifles and killed one M.R.P. escort constable and caused serious injuries to 4 other C.R.F. constables. The offence is serious, no doubt. However, the petitioner was treated as an accused on and from 23-5-79. About one year 4 months have elapsed since the occurrence but no charge-sheet has been submitted. In view of the language of Section 167(2), proviso (a)(1), the Magistrate is bound to enlarge him on bail on the expiry of 90 days from the date of arrest and detention in custody of the accused in connection with the case. Under these circumstances the accused is entitled to bail. In the result, I direct that the accused person shall be enlarged on bail by the learned Magistrate on furnishing adequate security for his release. In view of the serious nature of the allegation I direct that the petitioner shall be enlarged on bail with the condition that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer and that he shall not leave the jurisdiction of his police station without previous permission of the court, except for the purpose of attending court. If in the meantime the charge-sheet has been submitted the trial shall commence forthwith and must be completed within a period of 90 days.
Criminal Misc. Case No. 14 (HQ/1980.
16. Thanglawta is an editor of a daily newspaper named ‘MI’. It is a Mizo language paper. The accused was arrested on 1-8-79 in connection with Awzawl P. S. Case No. 14(8)/79, that is, G.R. Case No. 505/79, under Sections 153A and 505, I.P.C. The offence is for promoting enmity between classes etc. It is a non-bailable offence but the maximum punishment is for three years or fine or with both. More than a year has elapsed and no charge-sheet has been submitted. The accused shall be enlarged on bail by the learned Magistrate. He was entitled to bail on the expiry of 60 days from the date of his arrest.
17. However, he was arrested on 23-11-79 in connection with another case, namely, Awzaw P. S. Case No. 36 (10) of 1’979 corresponding to G.R. Case No. 705/ 79. It has been stated that certain objectionable editorial comments were published in the newspaper. He was arrested under Section 124A, I.P.C. which is punishable with imprisonment for life and fine as well as under Section 153A, I.P.C. which is punishable with imprisonment for 3/5 years and fin. It is stated that he has been released on bail on 24-11-79. Ii the accused is on bail, the question of granting him bail does not arise. If he has been arrested and kept under detention, the learned Magistrate shall enlarge him on bail, on such conditions as he may deem fit and proper, in the facts and circumstances of the cases.
18. However, the petitioner states that a new case was taken up against him for some publication made by him on 10-12-79 in his paper. He was arrested on 6-6-80. The offence under which he has been arrested is stated to be under Section 10 read with Section 13-B of the Unlawful Activities Prevention Act. He is still in jail. The petitioner has annexed the translation of the publication dated 10th December, 1979. It appears that it was made in connection with the general election. I have perused the same. It has threatening over-tone. However, the petitioner is a respectable editor and he ought to be careful in making statement of the nature which may create a feeling of apprehension or fear in the minds of others. On perusal of the statement I do not find that there is any such material which disentitles him to be enlarged on bail. He is a respectable editor; he was already released on bail on 25-11-79. There is nothing to show that he violated any terms and conditions or jumped bail. The allegation of the offence under the Unlawful Activities Prevention Act are neither punishable with death or imprisonment for the. In any view of the matter, it does not appear that the paper report contained any element of an offence under the said Act. However, this is my tentative view. The State has not filed any counter. Taking all factors into consideration, I direct that the accused-petitioner be released on bail f Rs. 5,000 (Rupees five thousand only) with one surety of the like amount to the satisfaction of the Magistrate, Aizawl However, the petitioner shall not leave Mizoram without written permission of the learned Magistrate and shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from diclosing such facts to the court or any police officer,
Criminal Misc. Case No. 16 (HC) of 1980.
19. The petitioner Lalliana is a publisher of the said language daily (Mizo) and positively a responsible person. He was also arrested along with Thanglawta of Cri. Misc. Case No. 14 (HC) of 1980 on the same sets of allegations. For the reasons set out in the case of Thanglawta I direct that the present petitioner shall be also enlarged on bail of Rs. 5,000 (Rupees five thousand only) on the same terms and conditions of the bail granted to the accused-petitioner in Criminal Misc, Case No. 14 (HC) of 1980.
Criminal Misc. Case No. 22 (HC) of 1980.
20. Sangzikpuia states that he was arrested on 7-9-74. The alleged offences are under Sections 121/122/393, I.P.C. in connection with G.R. Case No. 475 (5) of 1975. The allegation against the accused was that he “robbed” a sum of Rs. 50 and joined MNF in 1966. It is stated that the charge-sheet has been submitted against the accused as late as on 29-1-79. The case is said to be pending in Court. It is apparent that no legal aid has been given to the accused. The accused was entitled to be enlarged on bail under Section 167(2) proviso (a) (i) of the Cr. P. C, However, the period is over and the accused has since been charge-sheeted. The charge-sheet, as stated, was submitted on 29-1-79. The State in its affidavit submits that the accused confessed before the Magistrate that he had joined the MNF. A copy of the confessional statement has been filed by the State, The State claims that it is a confession, The statement is on solemn affirmation. Be that as it may, I quote the alleged confessional statement.
On solemn affirmation I beg to state that I belonging to Zobawk Group Centre under Lunglia P. S. I joined the MNF In the year 1966. On 24-11-67 I surrendered before the security post at Lunglia with 1 rifle, l grenade and 36 numbers of cartridge. Then I was sent to jail. After 3 years I was released from jail on 27-12-89 and I began to work in a workshop belonging to Zarliang at Zarkawt as a driver. I was scared ot the MNF and hence decided to leave Mizoram. Henca I was looking for a chance of recruitment in the Indian Army. With this intention I went to Kolasib on 20-8-73 and stayed with Sangliana who is a relative of mine. There I worked as a labour earning Rs. 6 a day. On 29-8-74 Shri Zorama and Shri Bachhunga (MNF) came and told that they would lead ma to Arakan as I surrendered before the Indian Army, for my trial. At night at about 7 p. m. they took me to the house of BDO Kolasib. They requested the BDO to pay Rs. 50. The BDO paid Rs. 50 to Zorama. Then we left the place but they would not allow me to leave them. I spent 2 nights with them and on 4-9-74 they took me to Thingdawl. We spent 2 nights at Thingdawl and on 6-9-74 I escaped at about 9 a.m. and went back to Kolasib and stayed with said Sangliani. Sangliani asked me to report the matter before the police. I went to P. S. at about 11 a.m. and reported the matter before the O.C. Kolasib P.S. Then the police arrested me.
Sd/- Sangzikpuia.
21. It is not a confession of guilt. The statement is not inculpatory but out and out exculpatory. It is stated to be the only material evidence against him. In view of finding that it is not a confession, I direct that the accused shall be enlarged on bail of Rs. 1,000 (Rupees one thousand only). On the basis of this statement the poor petitioner, a citizen of India, was kept confined behind the bars for well over 7 years. The case is an eye-opener and calls for a careful scrutiny by those in charge of the administration of justice in Mizoram to scrutinise similar cases and to grant relief to the deserving persons to whom justice is being denied. Mizoram is a land-locked country and the door of the High Court is not very close to the litigant. It is the imperative duty of all to join hands with the judiciary to see that no injustice is caused to a single Mizo in Mizoram and not a single prisoner is detained in violation of Article 21 of the Constitution. As alluded, the common goal of the legislative, executive and judiciary is the same, namely, the welfare of the people. It is essential for all to ba up and doing to scrutinise the cases of undertrial prisoners very carefully. As there is no lawyer in Mizoram, I feel that it is the duty of the Government of Mizoram to issue necessary circulars to all the prisoners detained in jail to exercise their right declared by the Supreme Court and reiterated herein.
22. In the result, the applications are allowed as indicated above.
23. Before I conclude I must acknowledge the kind assistance and invaluable help rendered by the learned Advocates who appeared as Amicus Curiae.
24. As they have done services la the ease on behalf of the petitioner, I direct that they should foe paid hearing fee @ Bs. 85 per day each and the fees shall be borne by the Government of Mizoram. The learned Public Prosecutor, Government of Mizoram assures me that the payment will be made forthwith.
