Hansaria, J.:- "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can pat up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of a free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effec­tive that every citizen shall believe in and benefit by its impar­tiality and fairness." The above observation of Brennan, J. has more application to this country because of deep poverty here. It was the realization of great social injustice and that too in a forum of jus­tice which must have led to the insertion of Article 39A by the Forty-Second Amendment Act, 1976, in our Constitution. "Equal Justice" bad really been a part of our organic document from its very inception in Article 14 of the Constitution. It is however the liberal interpretation of Article 21 in Mantka Gandhi, AIR 1978 SC 597 , which saw fresh thinking on the subject of legal and by the highest court of the land. It was proclaimed in no uncertain terms by Bhagwati, J. in the landmark decision in Mamka Gandhi, AIR 1978, SC 597 that every procedure would not satisfy the call of Article 21. The same has to be "right and just and fair and not arbitrary, fanciful and oppressive." Hoikor, AIR 1978 SC 1548 , saw for the first time a clarion call in this regard, which was of course in the wake of Mqneka Gandhi. Article 39A, which reads :- "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, the ensure that opportunities for secur­ing justice are not denied to any citizen by reason of economic or other disabilities." “was regarded as an interpretative tool for Article 21 in Hoskot. A partial statutory implementation of mandate has found expres­sion in section 304 of the new Code of Criminal Procedure which has enjoined providing of legal aid "in a trial before the court of session". A partial statutory implementation of mandate has found expres­sion in section 304 of the new Code of Criminal Procedure which has enjoined providing of legal aid "in a trial before the court of session". In Hoskot it has however held that in other situa­tions as well courts cannot be inert in the face of Articles 21 and 39A. Let it be said at this stage to the credit of this State that though the old Cr.P.C. had not contained any provision for legal aid, Rule 19 of the Assam Law Department Manual did speak of providing legal aid, of course, only where the accused was committed for trial of a charge of murder. Even so, it was a lead given by this State in this regard. This court however bad not remained contented in seeing that legal aid is provided in a murder case only where it is specifically provided for. A Bench speaking through Goswami, C. J., as he then was, the State vs. Aji Peyang, ALR 1970 A & N 90, had stated that : "We cannot countenance the situation of seeing under our jurisdiction trial of a person facing the extreme penalty of Jaw without the aid of Counsel when he is unable to engage one." 2. Hoskot however contains a very bold pronouncement in this regard. It is held in no uncertain terms that providing of legal aid is a State's duty and not Government's charity. As to in which type of cases legal aid should be given, Krishna Iyer, J., observed as below : "Of course, the court may judge the situation and consi­der from all angles whether it is necessary for the ends of justice to make available legal aid the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion asides in the court." 3. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion asides in the court." 3. The country was to see bolder pronouncement from Bhagwati, J., In one of the Bussainara cases, AIR 1979 SC 1369, the court observed that : "when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be depr­ived of his life or liberty should be 'reasonable, fair and just'. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just'. It is an essen­tial ingredient of reasonable fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him". After referring to Article 39A, Bhagwati, J. further observed; "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 the needs of justice so required, provided of course......" In another Hussainara case, AIR 1979 SC 1377 , Bhagwati, J., took a step further and reminded that it was the constitut­ional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigenes, or incommunicado situation to have free legal services provided to him. It was told that let it not be forgot­ten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Legal aid was des­cribed as nothing else but equal justice in action. It was then observed that 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. 4. Harder cases were yet to come before the court. Legal aid was des­cribed as nothing else but equal justice in action. It was then observed that 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. 4. Harder cases were yet to come before the court. The Bhagalpur blinding cases evoked strong resentment in all conscience and so the court in Khatri vs. State of Bihar, AIR 1981 SC 928 , lamented that despite the law having been declared as far back as 9th March, 1979 that the right to free legal service is clearly an essential ingredient of reasonable, fair and just procedure, most of the States in the country had not taken note of that. When plea of financial constraints was mentioned on behalf of the State of Bihar, Bhagwati, J. could not coun­tenance it and observed that a State could not avoid its con5titutional obligation to provide free legal services to a poor by pleading financial or administrative inability. The stage from which legal aid was to be made available was said to be from the first time an accused is produced before the Magistrate because the jeopardy to the personal liberty arises as soon a& a person is arrested and produced before a Magistrate. The only qualification recognised was that : "the offence charged against the accused is such that, on conviction, it would result in a sentence of imprison­ment and is of such a nature that the circumstances of the case and the ends of social justice require that he should be given free legal representation." While amplifying this it was stated that there may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse or the like nature where social justice may require that free legal services need not be provided by the State. 5. It gives us pleasure in recording that before the Supreme Court had held as above, this court speaking through Lahiri, J., had held earlier in Kuthu Goala vs. The State of Assam 1981 Crl. L.J. 424, after referring to Nandini Satpathy vs. P. L. Dam. 5. It gives us pleasure in recording that before the Supreme Court had held as above, this court speaking through Lahiri, J., had held earlier in Kuthu Goala vs. The State of Assam 1981 Crl. L.J. 424, after referring to Nandini Satpathy vs. P. L. Dam. AIR 1973 SC 1025, that : "if free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to needy person it should begin from the moment when a poor and needy person is apprehended by the Police. It is useless to allow the roots to dry and thereafter to water the plant. Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality." 6. The petitioners in this case have made a grievance that they were denied legal assistance not only from the date of very first production but during the course of the trial also. It has been averred that they had verbally prayed the learned trial court to give them legal assistance as they were too poor to engage a lawyer, but the same was refused by stating that legal service could be provided in serious cases only, by which the trial court might have meant cases triable by a court of session. In the present case, the charge against petitioner Achyut was under section 325, and under section 323 against Pratap. Of course, at the close of the trial, both the petitioners have been convicted under section 323 and sentenced to a fine of Rs. 50/- each, in default to S. I. for 7 days. This matter which is otherwise run-of-the mill type, has been examined by a Division Bench because the question of free legal aid was involved. We would therefore confine ourselves to this aspect only. 7. Shri Sarma appearing for the petitioners took us through the aforesaid case law and submitted that as section 325 I. P. C, is punishable with imprisonment for 7 years and fine, it was incumbent on the part of the trial court to have provided the petitioners with legal aid for want of which the trial has stood vitiated. 8. 7. Shri Sarma appearing for the petitioners took us through the aforesaid case law and submitted that as section 325 I. P. C, is punishable with imprisonment for 7 years and fine, it was incumbent on the part of the trial court to have provided the petitioners with legal aid for want of which the trial has stood vitiated. 8. Though there is nothing on record to show if the petitioners had asked for legal aid, that is not material in view of Khairi, because as stated therein : "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 in its purpose. The Magistrate or the Sessions Judge before whom an 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." The question therefore is not whether legal aid had been asked for or not, but whether the denial of the same for any reason whatsoever has rendered the trial non-est in the eye of law. From what has been stated above it is clear that free Legal service is not to be made available in all cases-it would much depend on the circumstances of the case. In Hoskot, sufferance of "public justice" was said to be the criterion, as per Hussainara "the ends of Justice" is the guiding star, and Khatri spoke of "social justice" in this regard. Thus, every case which ends with imposition of small fine cannot be held to be hit by Article 21 because of the denial of free legal service. If each and every trial were to be held bad for want of legal service, each and every detention in judicial custody would be so. But it is doubtful if a person could approach the High Court for writ of Habeas Corpus on the ground that he has been kept in detention without providing legal aid. Such a detention cannot also perhaps be regarded as wrongful confinement and a suit for damages against the authorities may not lie. But it is doubtful if a person could approach the High Court for writ of Habeas Corpus on the ground that he has been kept in detention without providing legal aid. Such a detention cannot also perhaps be regarded as wrongful confinement and a suit for damages against the authorities may not lie. Of course, a flagrant violation of this requirement in some cases may lead the court to take a different view. 9. In the case at hand though one of the petitioners was charged under section 325, the ultimate conviction of both is under section 323 with a fine of Rs. 50/- as sentence. The facts are further simple and speak of assault on two persons. Only 2 P.Ws were examined in the case. We have noted that petitioner Achyut lias been acquitted of the charge under section 325 because of lack of medical evidence. But a perusal of the records shows that Tunu Begum (one of the injured) had been medically exa­mined and even the x-ray had revealed a fracture. In such a case, to set aside the present conviction and to remit the case for fresh trial would really put the petitioners in greater jeopardy, which we have regarded neither advisable, nor in the interest of justice, inasmuch as in indigent person seeking for justice because of denial of legal services cannot be put on a more perilous course. By relying on State of U.P. vs. Kapil Deo, AIR 1973 SC 494 , it is however submitted by Shri Sarma that even while setting aside the conviction, we may not remand the matter. In that case remand was refused because the respondent was kept under suspension for 20 years. Of course, in Chajoo Ram vs. Radhey Shyam AIR 1911 SC 1367 lapse of 10 years in a case of perjury, and in Machander vs. State of Hyderabad, AIR 1975 SC 792 delay of over 4½ years in a murder case had acted as repellent in this regard. This shows that no rigidity is to operate. In the case at hand, the occurrence is of 20.4.79 and the date of conviction is 30.4.81. Not much time has thus passed. This shows that no rigidity is to operate. In the case at hand, the occurrence is of 20.4.79 and the date of conviction is 30.4.81. Not much time has thus passed. Moreover, the fact that Achyut was acquitted under section 325 because of non-examination of the doctor whereas an injury report showing grievous hurt is on record is a factor which really calls for remand, as a person who makes a grievance of injustice to him during the course of trial must face the same whole heartedly and be prepared to receive his due sentence for the acts really committed by him. He cannot have the best of both the worlds-obliteration of his guilt due to violation of procedural safeguard, and escape from further proceeding with full safeguard. So, if we would have set aside the conviction because of non-providing of legal aid, it would have been diffi­cult for us on the facts of the case not to remand the case for fresh trial. 10. Because of all the above, we would hold that present is not a case in which conviction should be set aside for denial of legal aid. Let the matter be placed before a learned Single Judge to consider other points raised in the revision.