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TMI Blog1978 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... niaturised 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 Dabholkar, 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 authorising 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ) [1978 2 S.C.R. 621. Having narrated the necessary facts which project the two profound but neglected problems of criminal jurisprudence we should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations 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) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 economi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 no narbitrariness 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts; 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) servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilty, 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. 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 opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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