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Cites 24 docs - [View All]
Article 21 in The Constitution Of India 1949
The Indian Penal Code
The Code Of Criminal Procedure, 1973
Article 136 in The Constitution Of India 1949
Section 467 in The Indian Penal Code
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State Of Maharashtra vs Chandrabhan Tale on 7 July, 1983
Dilip S. Dahanukar vs Kotak Mahindra Co. Ltd. & Anr on 10 April, 2007
Union Of India And Ors vs N. Saravanan on 14 October, 2014

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Supreme Court of India
Madhav Hayawadanrao Hoskot vs State Of Maharashtra on 17 August, 1978
Equivalent citations: 1978 AIR 1548, 1979 SCR (1) 192
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.
           PETITIONER:
MADHAV HAYAWADANRAO HOSKOT

	Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT17/08/1978

BENCH:
KRISHNAIYER, V.R.
BENCH:
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 Judgement 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  under
went the full period of im-
193
prisonment 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.



JUDGMENT:

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 fulfil 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 thc 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 mc 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 despartion 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 can not 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.

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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.

21. 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.

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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.

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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.
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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.

21. 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 despatch, 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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