Madhav Hayawadanrao Hoskot Vs. State of
Maharashtra [1978] INSC 138 (17 August 1978)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1978 AIR 1548 1979 SCR (1) 192 1978
SCC (3) 544
CITATOR INFO :
R 1979 SC1369 (6) RF 1980 SC1579 (21) R 1980
SC1789 (112) RF 1981 SC 28 (13) RF 1981 SC 674 (8) RF 1981 SC 746 (3) RF 1981
SC 818 (22) D 1982 SC 710 (92) F 1983 SC 109 (10) RF 1983 SC 361 ((2)19) RF
1983 SC 465 (5) R 1983 SC 624 (10) RF 1983 SC 803 (22) RF 1985 SC 231 (2) R 1986
SC 180 (39) R 1986 SC 991 (5)
ACT:
Right to free copy of the judgment by the
accused under. 5. 363 read with S. 387, 388 of the Code of Criminal Procedure
1973 (Act 2 of 1974), scope of-Duties of the Court to furnish the copy and duty
of the jail authorities to obtain the signature of the accused when the copy is
delivered through the jail authorities- Constitution of India 1950 Act.
19(1)(d) read with sub-Act. (S) and Act 21.
Right to counsel by the accused- Constitution
of India 1950. Articles 21, 22 39A and 142 read with S. 304 of the Criminal
Procedure Code, 1973 explained.
Words and Phrases "procedure established
by law" in Art.. 21 of the Constitution, explained-"Fair
Procedure" ingredients of.
Punishment and sentence-Correctional approach
by Courts to prison treatment and nominal punishment verging on
decriminalisation of serious social offence, explained.
Special leave petition grant of Art. 136 of
the Constitution is subject to the fundamental rules laid down by this Court.
HEADNOTE:
Under s. 363(1) of the Criminal Procedure
Code, 1973 "when the accused is sentenced to imprisonment, a copy or the
judgment shall immediately after the pronouncement of the judgment, be given to
him free of cost". Under s. 363(2), "on the application of the accused,
a certified copy of the judgment or when he so desires z. translation in his
own language if practicable or in the language of the Court, shall be given to
him without delay and such copy shall in, every case where the judgment is
appealable by the accused be given free of cost: Provided that where the
sentence of death is passed or confirmed by the High Court, a certified copy of
the judgment shall be immediately given to the accused free of cost whether or
not he applies for the same". By. s. 387 of the Code, these provisions
contained in Chapter XXVII are applicable so far as may be practicable to the
judgment in appeal by a Court of Sessions or Chief Judicial Magistrate. S. 388,
however, requires that the order of the High Court on appeal should be
certified to lower court and the court to which the High Court certifies its
judgment shall make such orders as are comfortable to the judgment of the High
Court.
The petitioner was tried for the various
offences under s.417 read with s.511 I.P.C`., s. 467 I.P.C. s. 468 I.P.C.
and 471 read with s. 467 I.P.C. by the
Sessions Court and found guilty of the said offences but sentenced to a soft
sentence of simple imprisonment till the rising of the Court and some fine. Two
appeals were filed one by the petitioner and the other by the State. The High
Court dismissed the petitioner's appeal and accepting the State's appeal
enhanced the sentence to three years on 22-11-73. On 26-11- 73, in conformity
with the Judgment of the High Court, the Sessions Court passed necessary orders
to the Central Prison Authority Bombay to take him into custody. He was later
on transferred to Yeravada Jail, Pune. The petitioner underwent the full period
of imprisonment and filed the special leave petition with a petition for
condonation , of delay contending that on 10- 12-73 he had applied under s.
363(2) read with s. 387 of the Code for a certified copy of the judgment dated
22-11-73 through the jail authorities and that though the copy was received by
the jail authorities in March 1 1974 from the High Court it was never delivered
to him, with the result he not only lost his right to appeal by special leave
but was forced to come up with a condonation petition after obtaining another
certified copy from the High Court.
Condoning the delay and dismissing the
petition the Court
HELD: l. Freedom is what freedom does. In
Art. 21 of the Constitution the guarantee of the personal liberty is phrased
with superb amplitude with the words, "No person shall be deprived of his
life or personal liberty except according to procedure established by
law". "Procedure established by law" are words of deep meaning
for all lovers of liberty and judicial sentinels. Amplified activist fashion,
'procedure' means 'fair and reasonable procedure' which comports with civilised
norms like natural justice rooted firm in community consciousness not primitive
processual barbarity nor legislated normative mockery.
[201C-E]
2. One component of 'fair procedure' is
natural justice. Generally speaking and subject to just exceptions, at least a
single right of appeal on facts, where criminal conviction is fraught with long
loss of liberty, is basic to civilized jurisprudence. It is integral to fair
procedure, natural justice and normative universality save in special cases
like the original tribunal being a high bench sitting on a collegiate basis. In
short, a first appeal from the Sessions Court to the High Court, as provided in
the Criminal Procedure Code, manifests this value upheld in Art.
21. Every step that makes the right of appeal
fruitful is obligatory and every action or inaction which stultifies it is
unfair and, ergo, unconstitutional (In a sense, even Art.
19 may join hands with Art. 21, as the Maneka
Gandhi reasoning discloses). Maneka Gandhi's case has laid down that personal
liberty cannot be cut out or down without fair legal procedure. [197F, 203D-E.
F 208E] Pertinent to the point in the case are two requirements: (i) service of
a copy of the judgment to the prisoner in time to file an appeal an(l (ii)
provision of free legal services to a prisoner who is indigent or otherwise
disabled from securing legal assistance where the ends of justice call for such
service. Both these are. State responsibilities under Art. 21 and apply where
procedural law provides. for further appeals as well. [203F-G] Maneka Gandhi v.
Union of India [1978] 1 SCR 621, referred to.
3. Judicial Justice with procedural
intricacies, legal submissions and critical examination of evidence, leans upon
professional expertise; and a failure of equal justice under the law is on the
cards where such supportive skill is absent for one side. Our Judicature and
Judicial Process, engineered by kindred legal technology, compel the
colloboration of lawyer-power for steering the wheels of equal justice under
the law. [204C-D] If a prisoner who is sentenced to imprisonment is virtually
unable to exercise his constitutional and statutory right of appeal, inclusive
of special leave to appear for want of legal assistance, there is implicit in
the Court under Art. 142 194 read with Articles 21 and 39A of the Constitution
power to assign counsel for such imprisoned individual "for doing complete
justice". This is a necessary incident of the right of appeal conferred by
the Code and allowed by Art. 136 of the Constitution. The accused has a right
to counsel not in the permissive sense of Art. 22(1) and its wider amplitude
but in the peremptory sense of Art. 21 confined to prison situations. [28F-G,
209C]
4. Where the prisoner seeks to file an appeal
or revision every facility for exercise of that right shall be made available
by the jail administration. [209E] (a)Courts shall forthwith furnish free
transcript copy OF the judgment when sentencing a person to prison term. In the
event of any such copy being sent to the jail authorities for delivery to the
prisoner by the appellate, unrevisional or other Court, the official concerned
shall with quick despatch. get it delivered to the sentence and obtain written
acknowledgement thereof from him. Any jailor who by indifference or vendetta,
withholds the copy thwarts the Court process and violates Art. 21 and may pavc
the way for holding the further imprisonment illegal. These obligations are
necessary implied in the right of appeal conferred by the Code read with the
commitment to procedural fairness in Art. 21. S. 363 of the Cr. P.C. is an
activist expression of this import of Art. 21 and is inviolable.
[204A-B & 209DE] John Richard Argersinger
v. Raymond Hamlin, 407 U.S. 25 32 LED. 2d. 530 at 535-36 and 554, quoted with
approval.
Art. 8 of the Universal Declaration on Human
Rights and Art. 14(3) of the International Covenant on Civil and Political
Rights referred to.
(b) The State which prosecuted the prisoner
and set in motion the process which deprived him of his liberty shall pay to
the assigned counsel such sum as the Court may equitably fix. the Court may
judge the situation and consider from all angles whether it is necessary in the
ends of justice to make available legal aid in the particular.
case. That discretion resides in the Court.
[209A-B, & G] (c) These benign prescriptions operate by force of Art.
21 "strengthened by Art. 19(1)(d) read
with sub-article (5) from the lowest to the highest Court where deprivation of
life and personal liberty is in substantial peril. [209H]
5. Since the Supreme Court is the last in
Indian pyramid of justice every party in person elicits from the Court extra
solicitude so that he may not suffer from a sense of handicap due to the
absence of professional legal service. The present petition, the party though
proffessional legal aid by the Court preferred to argue himself [1971H. 198A,
209B]
6. (a) The Supreme Court has laid down
certain fundamental principles its governing its jurisdiction when special
leave is sought under Art. 136 of the Constitution.
The Court cannot depart from this criteria
lest the endless chase for justice by every defeated litigant, civil and
criminal should flood it into dysfunction.[198A-B] 195 Ujjagar Singh & Anr.
v. State (Delhi Admn), order in S.L.P. (Crl.) No. A 1319 etc. Of 1977 dt.
31-7-78 (unreported case).
(b) The soft justice syndrome vis-a-vis white
collar offenders scandalizes the Court. It stultifies social justice and
camouflages needed severity with naive leniency.
[196G] (c) Social defence is the
criminological foundation of punishment. In the instant case, the trial judge
has confused between correctional approach to prison treatment and nominal
punishment verging on decriminalisation of serious social offences. The first
is basic and the second pathetic. That Court which ignores the grave injury to
society implicit in economic crimes by the upperberth 'mafia' ill serves social
justice. Soft sentencing justice is gross injustice where many innocents are
the potential victims. It is altogether a different thing to insist on
therapeutic treatment, hospital setting and correctional goals inside the
prison "even punctuated by parole, opportunities for welfare work
meditational normalisation and healthy self-expression so that the convict may
be humanised and on release rehabilitated as a safe citizen.
Coddling is not correctional any more than
torture is deterrent. While iatrogenic prison terms are bad because they
dehumanize, it is functional failure and judicial pathology to hold out a
benignly self defeating non-sentence to deviants who endanger the morals and
morale, the health and wealth of society. [199E-H, 200A] Mohammad Giasuddin v.
State of Andhra Pradesh [1978] I SCR 153. applied.
CIVIL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) No. 408 of 1978.
From the Judgment and order dated 22-11-1973
of the Bombay High Court in Criminal Appeal No. 747/ 72 with Criminal Review
Application No. 685/72.
In person for the Petitioner H. R. Khanna and
M. N. Shroff for the Respondent.
The order Gr the Court was delivered by
KRISHNA IYER, J.-A short paragraph might perhaps have been sufficient as
obituary note on this Special Leave Petition but two basic issues-one of prison
justice and the other of sentencing caprice-challenge our attention and deserve
more elaboration.
The facts, more flabbergasting than fantasy,
present themselves in this Special Leave Petition. The appeal is against a
conviction con- currently rendered for a novel and daring set of crimes and follow-up
sentence of three year prison term. 'The offence is bizarre, the 196 offender
perplexing, the sentence incredibly indiscreet at the Sessions Court stage but
reasonably just at the High Court level and, to cap it all the delay in seeking
leave from this Court is doubly shocking be cause it is inordinate and
implicates the prison administration.
A miniaturised version of the prosecution,
which has culminated in the conviction, is all that is necessary in view of the
ultimate order we propose to make. The petitioner, a Reader in the Saurashtra
University, claims to be a Ph. D. Of Karnataka University, although there is a
controversy as to this high academic qualification being a fabrication. In the
present case we are not concerned with it directly. His moot academic
proficiency apart, his abortive enterprise in an other field has landed him in
the present criminal case. According to the prosecution, Dr. Hoskot, the
petitioner, approached Dabhol kar, a block-maker of Bombay, placed an order to
prepare an embossing seal in the name of the Karnataka University, Dharwar, and
forged a letter of authority purporting to have been signed by the Personal
Assistant to the Vice-Chancellor of the said University authorisig him to get
the seals made. This Project Counterfeit Degrees, if we may so call it, had,
perhaps, as its object the concoction of certificates of degrees by the
Karnataka University. A degree-hungry community like ours offers a happy
hunting ground for professionals in the fine art of fabricating academic
distinctions. If the expertise is perfect and its exercise undetected there is
more money in it that in an honest doctorate. Anyway, the petitioner's
mis-adventure was intercepted before it could fulfill itself because Dabholkar,
the Bombay block-maker, was too clever a customer. He gave pre-emptive
information to the police leading to the unearthing in time of the criminal
scheme. The Sessions court tried the petitioner and held as proved beyond
reasonable doubt that the petitioner was guilty of the grave offences charged,
namely, under ss. 417 read with 511 I.P.C.. s. 467 I.P.C., s. 468 I.P.C. and
ss. 471 read with 467 I.P.C. After having rendered this draconian verdict
against a person who was a Reader in a University and claimed to be M.Sc., Ph. D.,
around 30 years old and coming from a middle-class family beyond economic
compulsions to make a living by criminal means, the court swerved towards a
soft sentence of simple imprisonment till the rising of the court and some
fine. We are scandalized by this soft justice syndrome vis-a-vis white collar
offenders. It stultifies social justice and camouflages needed severity with
naive leniency. However, two appeals were carried to the High Court, one by the
petitioner against his conviction and the other by The State against the naive
sentence. The High Court dismissed the appeal against the conviction and, in
allowance of the State's 197 prayer for enhancement, imposed rigorous
imprisonment for three years. The present petition for special leave to appeal
is against this heavy sentence.
The High Court's judgment was pronounced in
November 1973 but the Special Leave Petition has been made well over four years
later. This hiatus may appear horrendous, all the more so because the
petitioner has undergone his full term of imprisonment during this lengthy
interregnum. The explanation offered by him for condonation of the delay, if
true, discloses a disturbing episode of prison injustice. To start with the
petitioner complained that the High Court granted a copy of the judgment of
1973 only in 1978, a further probe disclosed that a free copy had been sent
promptly by the High Court, meant for the applicant, to the Superintendent.
Yeravada Central Prison, Pune. The petitioner denies having been served that
copy and there is nothings on record which bears his signature in token of
receipt of the High Court's judgment. The Prison Superintendent on The other
hand, would have us believe that a clerk of his office did deliver it to the
prisoner but took it back for the purpose of enclosing L it with a mercy
petition to the Governor for remission of sentence. This exonerative story may
be imaginary or true but there is no writing to which the petitioner is a party
to validate this plea. The fact remains that prisoners are situationally at the
mercy of the prison 'brass' but their right to appeal, which is part of the
constitutional process to resist illegal deprivation of liberty, is in peril,
if district jail officials' ipse dixit that copies have been served is to pass
muster without a title of prisoner's acknowledgment.
What is more, there is no statutory provision
for free legal serives to a prisoner, in absence of which, a right of appeal
for the legal illiterates is nugatory and therefore, a negation of that fair
legal procedure which is implicit in Art. 21 of the Constitution, as made
explicit by this Court in Maneka Gandhi(1).
Having narrated the necessary facts which
project the two profound but neglected problems of criminal jurisprudence we
should have proceeded to discuss the merits of the evidence to decide whether
leave should be granted to this petitioner. Indeed, although the court had
assigned a lawyer to render free legal service to the petitioner and argue the
case on his behalf, Dr. Hoskot decided to dispense with legal assistance and
argued on his own. Of course, he has presented his case capably and with
analytical precision in his endeavor to controvert the correctness of the
findings of the courts below. We have listened to him at some length since this
Court is the last in the (1) [1978 2 S.C.R. 621.
198 Indian pyramid of justice and a party in
person elicits from us extra solicitude so that he may not suffer from a sense
of handicap due to the absence of professional legal service. Nevertheless this
Court has laid down certain fundamental principles governing its jurisdiction
when special leave is sought. We cannot depart from these criteria 13 lest the
endless chase for justice by every defeated litigant, civil and criminal,
should flood this Court into dysfunction by a docket flood. It is dangerous to
be too good. The recent pronouncement of a Bench of This Court, through the
Learned Chief Justice, settles with clarity the decisive jurisdictional
guideline. We quote:
"In view of the concurrent findings of
the Sessions Court and the High Court on the principal issues arising in the
case we see no justification for granting special leave for a reconsideration
of the question as regards the guilt of the petitioners..
There is hardly a case, civil or criminal,
which does not raise some question of law or the other. But no question of law
of general public importance is involved in these petitions. It is time that it
was realised that the jurisdiction of this Court to grant special leave to
appeal can be invoked only in very exceptional circumstances. A question of law
of general public importance or a decision which shocks the conscience of the
court are some of the prime requisites for the grant of` special leave.(1)
[Ujjagar Singh & Anr. v. State (Delhi Admn..) ] Bearing this policy in
mind, coupled with the efficacy of concurrent findings of Fact, we decline the
request for leave even assuming there are some improbabilities in the
prosecution case or errors in the con current holdings. In this view, we do not
examine the merits further but insist on clarifying the two larger questions
lying half-hidden. No observations made by us should be understood as affecting
the petitioner's plea in any other criminal case he may be facing.
The Sessions Court. having found a university
professor guilty of organising (abortively though) a scheme of making bogus
degrees suddenly slumped at the sentencing stage and, awarded a single day's
simple imprisonment. The reasons given arc symptomatic or chaotic sentencing and
confusion about the correctional orientation of punishment. The court observed:
"Accused is a young man. He has no
previous conviction . He has a good family background. His father was a Deputy
Collector and Magistrate in the Mysore State. He (1) order in
SLP(Crl.No.1319ete.Of 1977dt.31-7- 1978(unreported case) 199 struck me as
having intelligence above the average. He is not a person with a criminal
tenancy. It is suggested by the learned P.P. that possibly accused did this in
a fit of dispartion as he was given notice of discharge by The Saurashtra
University regarding his Readership in Mathematics.
The modern emphasis on the corrective aspect
of punishment cannot be ignored in this case which determining the adequacy of
sentence, having regard to the nature of the offence and the background of the
accused, I think that I should give one chance for the accused to improve.
Hence I do not think it desirable to send him to jail as he might return as a
confirmed criminal? which may he a liability to the society. If, on the other
hand, mercy is shown to him at this stage of his first impact with justice,
then it is probable that he may be reclaimed as a good citizen who call harness
his talent for desirable activities. In view.
of this T propose to pass the following order
to which the learned Spl. Public prosecutor has no objection Substantive
sentences of one day S.I. to run concurrently.
(emphasis added) It is surprising that the
Public Prosecutor has consented, on behalf of the State, to this unsocial softness
to an anti-social offender on conviction for grave charges. Does the
Administration sternly view white-collar offenders, or abet them by agreeing to
award of token punishment, making elaborate trials mere tremendous trifles ?
Social defence is the criminological foundation of punishment. The trial judge
has confused between correctional approach to prison treatment and nominal
punishment verging on decriminalisation of serious social offences. The first
is basic, the second pathetic. That Court which ignores the grave injury to
society implicit in economic crimes by the upper-berth 'mafia' ill serves
social justice. Soft sentencing justice is gross injustice where many innocents
are the potential victims. It is altogether a different thing to insist on
therapeutic treatment, hospital setting and correctional goals inside the
prison (even punctuated by parole, opportunities for welfare work, meditational
normalisation and healthy self-expression), so that the convict may be
humanised and, on release? rehabilitated as a safe citizen. This Court has
explained the correctional strategy of punishment in Giasuddin's case(1).
Coddling is not correctional, any more than torture is deter- rent. While
iatrogenic prison terms are bad because they dehumanize, (1) Mohammad Giasuddin
v. State of Andhra Pradesh [1978]1 S.C.R.153.
200 it is functional failure and judicial
pathology to hold out a benignly self-efeating non-sentence to deviants who
endanger the morals and morale, the health and wealth of society.
The 47th Report of the Law Commission of
India noticed this weakness for economic offenders in the judicial personnel
(of course, also in the administrative and legislative actors) and recommended:
"18.2. Suggestions are often made that
in order that the lower Magistracy may realise the seriousness of some of the
social and economic offences, some method should be evolved of making the
judiciary conscious of the grave damage caused to the country's economy and
health by such anti-social crimes. The frequency and emphasis with which these
suggestions have been made, and the support which they have received from very
high officers has caused some anxiety to us. But we hope that the higher courts
are fully alive to the harm, and we have no doubt that on appropriate occasions,
such as, judicial conferences, the subject will receive attention. It is of
utmost importance that all State instrumentalities involved in the
investigation, prosecution and trial of these offences must be oriented to the
philosophy which treats these economic Offence as a source or grave challenge
to the material wealth of the nation.
18.3. We hope we shall not be misunderstood
if we suggest that even the holding of periodical meetings on sentencing may be
beneficial, not in the context of economic offences only, but in the evolution
of a rational and consistent policy of sentencing.
Experience of England is, by now, familiar to
those interested in the subject.
A meeting of over 100 judges was held in the
Royal Courts of Justice in London on January 7-8, 1965 to take part in
exercises designed to increase the uniformity of sentencing. The Lord Chief
Justice expressed the hope that the meeting would be a model for similar ones
throughout the country.
Conferences between judges, magistrates and penal
administrators are, in England, organised with increasing frequency in many
parts of the country with an annual conference in London for judges of the
Supreme Courts.
18.4. Besides holding councils on sentencing,
it may be worthwhile to hold "workshops' which would be less formal 201
but equally useful and likely to give concrete results.
Such workshops could, for example, be
attended by all Special Judges or other officers concerned with economic
offences.
National courses on sentencing strategies vis-a-vis
social justice is a neglected cause and the Administration is, as yet,
'innocent' of this imperative need.
The second profound issue, thrown up
accidentally by Dr. Hoskot's sojourn in the Yeravada jail, disturbs us more
because less capable men-most prisoners in this country belong to the lower,
illiterate bracket-suffer silent deprivation of liberty caused by
unreasonableness, arbitrariness and unfair procedures behind the 'stone walls'
and 'iron bars'.
Freedom is what freedom does, and here we go
straight to Art. 21 of the Constitution, where the guarantee of personal
liberty is phrased with superb amplitude:
Art. 21: Protection of life and personal
liberty:- No person shall be deprived of his life or personal liberty except
according to procedure established by law. (emphasis added).
'Procedure established by law' are words of
deep meaning for all lovers of liberty and judicial sentinels. Amplified,
activist fashion, 'procedure' means 'fair and reasonable procedure' which
comports with civilised norms like natural justice rooted firm in community
consciousness, not primitive processual barbarity nor legislated normative
mockery. In a land-mark case, Maneka Gandhi(1), Bhagwati, J.
(on this point the Court was unanimous)
explained:
"Does Article 21 merely require that
there must be some semblance of procedure, howsoever arbitrary or fanciful.
prescribed by law before a person can be deprived of his personal liberty or
that the procedure must satisfy certain requisites in the sense that it must be
fair and reasonable ? Article 21 occurs in Part III of the Constitution which
confers certain fundamental rights".
"Is the prescription of some sort of
procedure enough or must the procedure comply with any particular requirements
? obviously, the procedure cannot be arbitrary, unfair or unreasonable. This
indeed was conceded by the learned Attorney General who with his usual candour
frankly (1) [1978] 1 SCC 248 at 277, 281 and 284 14-520 SCI/78 202 stated that
it was not possible for him to contend that any procedure howsoever arbitrary,
oppressive or unjust may be prescribed by the law." "The principle of
reasonableness, which legally as well. as philosophically, is an essential
element of equality or nonarbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test
of reasonableness in order to be in conformity with Article 14. It must be
"right and just and fair and not arbitrary, fanciful or oppressive;
otherwise it would be no procedure at all and the requirement of Article '21
would not be satisfied.
Any procedure which permits impairment of the
constitutional right to go abroad without giving reasonable opportunity to show
cause cannot but be condemned as unfair an(3 unjust and hence, there is in the
present case clear infringement of the requirement of Article 21".
One of us in his separate opinion there
observed(u):
"Procedure established by law",
with its lethal potentiality, will reduce life and liberty to a precarious
plaything it we do not ex necessitate import into those weighty words an
adjectival rule of law, civilised in its soul, fair in its heart and fixing
those imperatives of procedural protection absent which the processual tail
will wag the substantive head. Can the sacred essence of the human right to
secure which the struggle for liberation, with 'do or die' patriotism, was
launched be sapped by formalistic and pharisaic prescriptions, regardless of
essential standards ? An enacted apparition is a constitutional illusion.
Processual justice is writ patently on Article 21.
Procedure which deals with the modalities of
regulating; restricting or even rejecting a fundamental right falling with in
Article 21 has to be fair, not foolish, carefully designed to effectuate, not
to subvert, the substantive right itself. Thus understood, 'procedure' must
rule out anything arbitrary, freakish or bizarre. A valuable constitutional
right II can be canalised only by civilised process.. What is fundamental is
life and liberty. What is procedural is the manner (1) per Krishna lyer, J. at
337, 338.
203 of its exercise. This quality of fairness
in the process is emphasised by the strong word 'established' which means
'settled firmly' not wantonly or whimsically. If it is rooted in the legal
consciousness of the community it becomes 'established' procedure.
And 'law' leaves little doubt that it is
normae regarded as just since law is the means and justice is the end.
Procedural safeguards are the indispensable
essence of liberty. In fact, the history of personal liberty is largely the
history of procedural safeguards and right to a hearing has a human-right ring.
In India, because of poverty and illiteracy, the people are unable to protect
and defend their rights;
observance of fundamental rights is not
regarded as good politics and their transgression as bad politics.
To sum up, 'procedure' in Article 21 means
fair, not formal procedure. 'Law' is reasonable law, not any enacted piece.'`
one component of fair procedure is natural justice. Generally speaking and
subject to just exceptions, at least a single right of appeal on facts, where
criminal conviction is fraught with long loss of liberty is basic to civilised
jurisprudence. It is integral to fair procedure, natural justice and normative
universality save in special cases like the original tribunal being a high
bench sitting on Lt collegiate basis. Ill short, a first appeal from the
Sessions Court to the High Court, as provided in the Criminal Procedure Code,
manifests this value upheld in Art.
What follows from the appellate imperative ?
Every step that makes the right of appeal fruitful is obligatory and every
action or in- action which stultifies it is unfair and, ergo, unconstitutional
( In a sense, even Art. 19 may join hands with Art. 21, as the Menka Gandhi
reasoning discloses). Pertinent to the point before us are two requirements:
(1) service of a copy of the judgment to the prisoner in time to file all
appeal and (ii) provision of free legal ser- vices to a prisoner who is
indigent or otherwise disabled from securing legal assistance where the ends of
justice call for such service. Both these are State responsibilities under Art.
21. Where the procedural law provides for further appeals what we have said
regarding first appeals will similarly apply.
In the present case there is something
dubious about the delivery of the copy of the judgment by the Jailor to the
prisoner. A simple proof of such delivery is the latter's written
acknowledgment. Any 204 jailor who, by indifference or vendetta, withholds the
copy thwarts the court process and violates Art. 21, and may pave the way for
holding the further imprisonment illegal. We hope that Jail Manuals will be
updated to include the mandate, if there be any omission, and deviant jail
officials punished. And courts, when prison sentence is imposed, will make
available a copy of the judgment if he is straight marched into the prison. All
the obligations we have specificated are necessarily implied in the right of
appeal conferred by the Code read with the commitment to procedural fairness in
Art. 21. Section 363 of the Cr. P. Code is all activist expression of this
import of Art. 21 and is inviolable. We say no more because we have condoned
the delay in the present case although it is pathetic that for want of a copy
of judgment the leave is sought after the sentence has been served out.
The other ingredient of fair procedure to a
prisoner, who has to seek his liberation through the court process is lawyer's
services. Judicial justice, with procedural intricacies, legal submissions and
critical examination of evidence, leans upon professional expertise;
and a failure of equal justice under the law
is on the cards where such supportive skill is absent for one side. Our
judicature, moulded by Anglo-American models and our judicial process,
engineered by kindred legal technology, compel the collaboration of
lawyer-power or steering the wheels of equal justice under the law. Free legal
services to the needy is part of the English criminal justice system.
And the American jurist, Prof. Vance of Yale,
sounded sense for India too when he said(1):
"What does it profit a poor and ignorant
man that he is equal to his strong antagonist before the law if there is no one
to inform him what the law is ? or that the courts are open to him on the same
terms as to all other persons when he has not the wherewithal to pay the
admission fee ?" Gideon's trumpet has been heard across the Atlantic.
Black, J: there observed(2):
"Not only those precedents but also
reason and reflection require us to recognise that ill our adversary system of
criminal justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided for him. This
seems to us to be an obvious truth.
Governments, both State and Federal, quite
(1) Justice and Reform, Earl Johnson Jr. p. 11.
(2) Processual Justice to the People (May,
1973) p. 69.
205 properly spend vast sums of money to
establish machinery to try defendants accused of crime. Lawyers to prosecute
are everywhere deemed essential to protect the public's interest in an orderly
society. Similarly, there. are few defendants charged with crime who fail to
hire the best lawyers they can get to prepare and present their defences. That
government hires lawyers to prosecute and defendants who have the money hire
lawyers to defend are the strongest indications cf the widespread belief that
lawyers in criminal courts are necessities, not luxuries. The right of one
charged with crime to counsel may not be deemed fundamental and essential to
fair trials in some countries, but is in ours. From the very beginning, our
state and national constitutions and laws have laid great emphasis on
procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law. This
noble idea cannot be realised if the poor man charged with crime has to face
his accusers without a lawyer to assist him".
The philosophy of legal aid as an inalienable
element of fair procedure is evident from Mr. Justice Brennan's(1) well-known
words:
"Nothing rankles more in the human heart
than a brooding sense of injustice. Illness we can put up with. But injustice
makes us want to pull things down.
When only the rich can enjoy the law, as a
doubtful luxury, and the poor, who need it most, cannot have it because its
expense puts it beyond their reach, the threat to the continued existence of
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".
More recently, the U.S. Supreme Court, in
Raymond Hamlin has extended this processual facet of Poverty Jurisprudence.
Douglas, J. there explicated(2):
"The right to be heard would be, in many
cases, of little avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If (1) Legal aid and Legal Education p. 94.
(2) United States Supreme Court Reports, Vol.
32 p. 530.
206 charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good or bad. He
is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put
on trial without a proper charge, and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel it every step in the
proceedings against him. Without it, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, how much more true is it of the
ignorant and illiterate or those of feeble intellect." The right of one
charged with crime to counsel may not be deemed fundamental and essential to
fair trials in some countries, but it is in ours. From the very beginning, our
state and national constitutions and laws have laid great emphasis on
procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law. This
noble ideal cannot he realized if the poor man charged with crime has to face
his accusers without a lawyer to assist him. 372 US at 344. 9 L Ed 2d at 805,
93, AL R 2d 733.
Both Powell and Gideon involved felonies. But
their rationale has relevance to any criminal trial, where an accused is
deprived of his liberty.
The court should consider the probable
sentence that will follow if a conviction is obtained. The more serious the
likely consequences, the greater is the probability that a lawyer should be
appointed....... The court should consider the individual factors peculiar to
each case. These, of course, would be the most difficult to anticipate. One
relevant factor would be the competency of the individual defendant to present
his own case.
(Jon Richard Argersinger v. Raymond Hamlin
(407 US 25 32L Ed 2d 530 at 535-36 and 554. (Emphasis added) The American Bar
Association has upheld the fundamental premise that counsel should be provided
in the criminal proceedings for offences punishable by loss of liberty, except
those types of offences for which such punishment is not likely to be imposed.
Thus in 207 America, strengthened by the Powell, Gideon and Hamlin cases,
counsel for the accused in the more serious class of cases which threaten a
person with imprisonment is regarded as an essential component of the
administration of criminal justice and as part of procedural fair-play. This is
so without regard to the VIth amendment because lawyer participation
is ordinarily an assurance that deprivation of liberty will not be in violation
of procedure established by law. In short, it is the warp and woof of fair
procedure in a sophisticated, legalistic system plus lay illiterate indigents
aplenty. The Indian social legal milieu makes free legal service, at trial and
higher levels. an imperative processual piece of criminal justice where
deprivation of life or personal liberty hangs in the judicial balance.
The widespread insistence on free legal
assistance, where liberty is in jeopardy? is obvious from the Universal
Declaration of Human Rights Art. 8. Everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental
rights granted by the Constitution or by law.
Art. 14(3) of the International Covenant on
Civil and Political Rights guarantees to everyone:
"the right to be tried in, his presence,
and to defend himself in person or through legal assistance of his own
choosing; to be informed, if he does not have legal assistance, of his right;
and to have legal assistance assigned to him in any case where the interests of
justice shall require, and without payment by him in any such case if he does
not have sufficient means to pay for it." Many high-level Indian Committees
and Commissions have emphasised the free legal service desideratum as integral
to processual fair-play for pr sellers. For example, one such committee has
stated(1):
93. Prisoners, men and women, regardless of
means, are a peculiarly handicapped class. The morbid cell which con- fines
them walls them off from the world outside. Legal remedies, civil and criminal,
are often beyond their physical and even financial reach unless legal aid is
available within the prison as is provided in some States in India and in other
countries. Without legal aid, petitions of appeal, applications for commutation
or parole, bail motions and claims (1) Processual Justice to the people May,
1973, p. 34.
208 for administrative benefits would be
well-nigh impossible. There is a case for systematised and extensive assistance
through legal aid lawyers to our prison population.
The Central Government is evolving a
comprehensive programme while many States already have fragmentary schemes.
It needs no argument to drive home this
point, now that Arts 39A, a fundamental constitutional directive, states:
39A. 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, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. (emphasis added) .
This article is an interpretative tool for
Art.
Partial statutory implementation of the
mandate is found in Sec. 304, Cr. P. Code, and in other situations courts
cannot be inert in the face of Art. 21 and 39A.
We may follow up the import of Maneka Gandhi
and crystallise the conclusion. Maneka Gandhi's case has laid down that
personal liberty cannot be cut out or cut down without fair legal procedure.
Enough has been set out to establish that a prisoner, deprived of his freedom
by court sentence but entitled to appeal against such verdict, can claim, as
part of his protection under Art. 21 and as implied in his statutory right to
appeal, the necessary concomitant of right to counsel to prepare and argue his
appeal.
If a prisoner sentenced to imprisonment, is
virtually unable to exercise his constitutional and statutory right of appeal,
inclusive of special leave to appeal, for want of legal assistance, there is
implicit in the Court under Art.
142, read with Arts. 21, and 39A of the
Constitution, power to assign counsel for such imprisoned individual for doing
complete justice. This is a necessary incident of the right of appeal conferred
by the Code and allowed by Art. 136 of the Constitution. The inference is
inevitable that this is a State's duty and not government's charity. Equally
affirmative is the implication that while legal services must be free to the
beneficiary, the lawyer himself has to be reasonably remunerated for his
services. Surely, the profession has a public commitment to the people but mere
philanthropy of its members yields short mileage in the long run. Their
services, 209 especially when they are on behalf of the State, must be paid
for. Naturally, the State concerned must pay a reasonable sum that the court
may fix when assigning counsel to the prisoner. 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 in 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 resides in the court.
In the present petition, the party, though
proferred legal aid by the court, preferred to argue himself. Even so we uphold
the right to counsel not in the permissive sense of Art. 22(1) and its wider
amplitude but in the peremptory sense of Art. 21 confined to prison situations.
While dismissing the Special Leave Petition
we declare the legal position to put it beyond doubt:
1. Courts shall forthwith furnish a free
transcript of the judgment when sentencing a person to prison term;
2. In the event of any such copy being sent
to the jail authorities for delivery to the prisoner, by the appellate,
revisional or other court, the official concerned shall, with quick dispatch,
get it delivered to the sentence and obtain written acknowledgment thereof from
him.
3. Where the prisoner seeks to file an appeal
or revision, every facility for exercise of that right shall be made available
by the Jail Administration.
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 requires assign competent counsel of 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 to
assigned counsel such sum s the court may equitably fix.
6. These benign prescriptions operate by
force of Art.
21 [strengthened by Art. 19(1)(d)] read with
sub-article (5) from the lowest to the highest court where deprivation of life
and personal liberty is in substantial peril.
S.R. Petition dismissed.
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