Convict's Refusal To Grant Consent To File Appeal Must Be Recorded In Writing By DLSA: Orissa High Court

The Orissa High Court has held that a convict's refusal to prefer Appeal against his conviction through legal aid should be obtained in writing.

The Division Bench of the Court was considering an Appeal against an order passed by Addl. Sessions Judge convicting the Appellant for offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.

The Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra held, "Sometimes, the convicts are unaware of their legal rights or appeal process and sometimes, they expressed unwillingness and are reluctant to file appeals for various reasons. If any convict does not choose to prefer appeal against his conviction in spite of proper guidance and proper advice being aware of his fundamental and statutory rights, the same should be obtained in writing from him by the Secretary of the D.L.S.A. and be forwarded to the Member Secretary of Odisha State Legal Services Authority for future reference and a copy of the same shall also be kept with the jail authorities."

The State was represented by Additional Government Advocate Jateswar Nayak.

The Court, upon noticing that there is a delay of 4565 days in filing the Jail Criminal Appeal, asked the Registry to verify whether any regular Criminal Appeal/JCRLA has been filed by the appellant earlier challenging the impugned judgment.

The Court then sought a report from the District and Sessions Judge, who is supposed to regularly inspect the jail and inform convicts about their right to file appeal. The Judge, in the report filed, sought apology for the unintentional delay occasioned in filing the appeal and assured the Court in writing that he shall remain vigilant in future and shall take all necessary steps to ensure that all the Jail Criminal Appeals of the convicts are filed within the stipulated period henceforth.

The Court apprised the D.G., Prisons about the inordinate delay caused in the case in filling the Jail Criminal Appeal by the Appellant, who is a life convict.

He stated that upon coming to know about similar problems, a special drive was conducted and more than 100 cases were detected, where the Criminal Appeals or Jail Criminal Appeals numbers of the convicts were not available with the jail authorities and the convicts also could not furnish the same. Accordingly, arrangements were made to take steps for preferring the Jail Criminal Appeal and the present appeal is one of them. 

The Court emphasised that the right of appeal is an invaluable right, particularly for an accused who cannot be condemned eternally by a trial Judge, without having a right to seek a re-look of the trial Court's judgment by a Superior or Appellate Court.

"The right to prefer an appeal by an accused against the conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution", the Court held.

It stressed that when a convict is in judicial custody and not having the financial capacity to challenge the conviction order by way of an appeal making his own arrangement, it becomes the sacrosanct duty of authorities concerned to provide legal aid to him and to ensure that the appeal is filed with promptitude and information in that respect with up to date status of the appeal is provided to the convict regularly.

".....The convict should be guided properly and provided suitable advice regarding their statutory and constitutional rights to prefer the appeals, if necessary by taking the help of their family members so that appeals can be instituted with their consent", the Court observed.

Referring to the Supreme Court's decision in Kamaljit Kaur -Vrs.- State of Punjab, 2025, the Court reiterated that the appeal filed without the convict’s consent amounted to a misuse of process of law and therefore, it is necessary that the convict’s refusal to give his consent to prefer an appeal should be obtained in writing. 

"Since the legal system provides a robust right to appeal, the convicts, who are unable to make their own arrangement in preferring the appeals against the conviction, should receive free and effective legal aid as part of their right to access justice", the Court ruled.

It was inclined to condone the delay in filing the present Appeal considering the poor financial condition of the Appellant, the period of his detention in judicial custody and the circumstances under which the Jail Criminal Appeal could not be filed earlier.

The matter was accordingly listed for January 07, 2026.

Cause Title: Jatia Hembram v. State of Odisha

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