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192

MADRAY HAYAWADANRAO HOSKOT

v.

STATE OF MAHARASHTRA

August 17, 1978

(V. R. KRISHNA IYER, D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.J

Right Jo frt·e copy of the judg1nent by the accused under S. 363 read with

S. 387, 388 of the Code of Criminal Procedure 1973 (Act 2 of 1974), sc-ope

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 i~; delivered through the jail

aulhorities---Constitution of India, 1950 Art. 19(1) (d) read with sub-Art. (5)

and Art. 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, explaillcd.

JVords and Phrases "procedure established by law" in Art. 21 of the Coiisti­

tution, explai11ed-"Fair Procedure" ingredients of.

Punishnient and sentence-Correctional approacl1 by Courts to prison treat~

n1cnt and non1inal punishment verging on decritninalisation of se'rious social

ojJcnce, explained.

Special leave petition, grant of,

Art. 136 of the Constitution is subject to

the

funtla111ental rules [ail( down by this Court.

Under s. 363(1) of the Criminal Procedure Code, 1973, "when the accUsed

is sentenced to imprisonment, a copy of the judgment shall, immediately after

the pronouncement

of the judgment, be given to him

ffee of cost". Under s.

363(2), "on the application of the accused, a certified copy of the judgment Qi·

·when he so desires ai translation in his own language if practicable or in the

language

of the Court, shall be given to him. without

delay and such copy ;.;hall

in, every case \v·here 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 ot

the Coc!e, these provisions contained in Chapter XXVII are applicable so far ns

may be practicable to the judgment in appeal by a Court of "Sessions or Chiet

Judicial Magistrate. S. 388, however, requires that the order of the High Court

on a.ppeal should be certified to lower court and the court to which the High

Court certifies its judgment shall make such orders as are comformable to the

judgment

of the High Court

The petitioner was tried for the various offences under s.417 read with s.51 l

I.P.C., s. 467 I.P.C. s. 468 l.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 ot

simple imprisonment till the rising

of

1the Court and some fine. Two appt:nis

were filed one by the petitioner and the other by the State. Tue High Court

dismissed the petitioner's appeal and accepting the State's appeal enhanced rile

sentence to three years on 22-11-73. On 26-11-73, in conformity with the JUdg­

m~nt of the High Court, the Sessions Court passed necessary orders to the Cent­

ral Prison Authority Bombay to take him into custody. He was. later on trans­

ferred

to Yeravada Jail, Pune. The petitioner under went the full period of im-

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M. H. HOSKOT V, MAHARASHTRA (Krishna Iyer, J.) 193·

prisonment and filed the special leave petition -..vith a petition for condonation A

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 197 4 from the High Court it was never

deliv~red to him, with the

result he not only lost his right to appeal by special leave btit Was forced to

come up with a condonation petition after obta•ining another certified copy fl om

the High Court. B

Condoning the delay

a11d dismissing the petition the Court

HELD :

1. 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 persona-I liberty except accord-

ing to procedure established by law". "Procedure established by la.w" are words C

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-Ej

2. One component of 'fair procedure' is natural justice. Generally speaking

anU. subject to just exceptions, at lerust a single right of appeal on facts·, where D-

criminal conviction is fraught with long loss of liberty, is basic to civilized 1uns­

prudencr. It is integral to fair procedure, natural justice and normative univer-

sality sa\'e in special cases like the original tribunal being a high bench 'iitting

011 a collcgb·te basis. In short, a first appeal from the Sessions Corirt to the

High Court, as provided in the Criminal Procedure C'ode, manifests this_ value

upheld in Art.

21. Every step

that makes the right of appeal fruitful is :Jbiiga-

tory and every action or inaction \vhich stultifies it is unfair and, ergo, unconsti-E:

tutional (ln a sense, even Art. 19 may join hands with Art. 21, as the Maneka

Gandhi reasoning discloses). Maneka Gandhi's case has la·id down that personal

liberty cHnnot be cut out or down dowrl without fair legal procedure. [197F,

2030-E, F 208EJ

Pertinent to the point in the case 11·re t\VO requirements : (i) service of a

copy

of the judgment to the prisoner in time to file an appeal and (ii) provision F

of free legal servics to a prisoner who is indigent or otherwise disabled from

securing legal assistance \vhere the ends

or. justice call for such service. Both

these are State responsibilities under Art. 21 and !apply where procedural law

provides. for further appeals as \1iell. [203F-G1

Maneka Gandhi v. Un:'on of India, [1978] 1 SCR 621~'re'ferred to.

3. Judicial Justice with procedural intricacies, legal submissions and critical

examination of evidence, leans upon professional expertise; and a failure of

equal iu~tice under the h·"w is on the cards \Vhcre such supportive skill is absent

for one side. Our Judicature and Judicial Process, engin~ered by kirii:lred legal

fechno!og~-, compel the collaboration of lawyer-power for steering the "·heels of

equal 1ast1ce under the law. [204C-D]

G

. If a. p~·is~ner v»ho is sentenced to imprisonment is virtually unable to exercis.:. I!

his c~n511tut1onal a·nd statutory right of appeal, inclusive of special leave to

appeal for want of legal assistance, there is implicit in the Court under Ait. 142

194 SUPREME COURT REPORTS (J 979] ] S.C.R.

A read with Articles 21 and 39A of the Constitution po,ver to a·:;sign 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 ~ 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.

f28F·.G, 209C]

B 4. Where the prisoner seeks to file an appeal or revision every facility tor

c

exercise of that right shall be made available by the jail ndrninistration, (209E]

(a) Courts shall forthwith furnish free transcript copy of th1;i judgment \

1hen

sentencing a person to prison term. In the event of any such copy being 'il!nt

to the jail authorities for delivery to the prisoner by the appellate, revisional or

other Court, the official concerned shall \Vith quick despatch, get it delivered to

the sentence and obtain \vritten acknowledgment thereof from him. Any jailor

who by indifference or vendetta, withholds the copy

thwarts the Court

proco..!ss

and violates Art. 21 and may pave the way for holding the further impnson­

ment illegal. These obliga·tions are necessarily implied in the right of appeal con­

ferred by the Code read with the commitment to procedura·l fairness in Art. 21.

S. 363 of the Cr. P.C. is an a-:tivist expression of this import of Art. 21 and

0 is inviolable. [204A-B & 209DE]

E

John Richard Argl'rsinRer v. Rayniond llan1li11, 407 U.S. 25 32 LEd. 2d. 530

at 535-36 and 554, quoted with approval.

Art. 8 of lhc 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 prJccss

v.'hich deprived him of his liberty shall pay to the assigned counsel such sun1 as

the Court n1ay equitably fix. The Court Olt.!Y judge the situation and consiuer

fron1 all angles whether it is necessary in the ends of justice to n1ake av2'il<ible

legal aid in the particular case. That discretion resides in the Court f209A-B, &

F GJ

( c) These benign prescriptions operate by force of Art. 21 "strengthened by

Art. 19(1)(d) read \Vith sub-article (5) fro111 the lo\vest to the highest Court

where deprivation of life and personal liberty is in substantial peril. f209H]

5. Since the Supfeme Court is the last in lndia.n pyramid of justice every party

G in person elicits fro1n the Court extra sOiicitude so that he may not suffer from

a sense of handicap due to: the absence of profess~onal legal service. In the pre­

sent petition, the party though proffered legal aid by the Court preferred to argue

himself. f197H, 198A, 209BJ

H

6. (a) The Supreme Court has laid down certain fundamcnt&l prin~iples

governing its jurisdiction when special leave is sought under Art. 136 of the

Constitution. The Court cannot depart from this criteria lest the endless ch:1se

for justice by every defeated litigant, civil and crin1inal should flood it into

dysfunction. I l 98A-Bl

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, J.) 195

Uj.jagar Singh & Anr. v. State (Del/ii Adnui.), Order in S.L.P. (Crl.) No.

1319 etc. of 1977 dt. 31-7-78 (unreported case).

(b) The soft justice syndrome vis-.~-vis white collar offenders scandali~.s the

Court. It stultifies social justice and camouflages needed severity \vith naive

leniency. [196G]

(c) Social defence is the criminological foundation of punish1ncnt. In

the instant case, the trial judge has confused betweeri correctional approach to

prison treatment and nominal punishment verging on decriminalisa.tion of se1 ious

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 upper­

berth 'mafia' ill serves social justice. Soft sentencing justice is gross injustice

A

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where many innocents are the potential victin1S. It is altogether a different th1r.g C

to insist on therapeutic treatment, hospital setting and correctional goals inside

the

prison

"even punctuated by parole, opportl,1nities for welfare work, mcdita­

tional normalisation and healthy self-expression" so that the convict may be

humanised and on release rehabilitated as a safe citizen. Coddling is not correc­

tional any more than torture is deterrent. While iatrogenic prison terms are

bad because they dehun1anize, it

is functional failure and judicial pathology to

hold out a benignly self defeating non-sentence to deviants who endanger the D

morals and morale, the health and

wealth of society. (199E-H, 200A]

Mohanimad Giasuddin v. State of Andhra Pratlf!sh [1978] 1 SCR 153, applied.

CIVIL APPELLATE JURISDICTION : Special Leave Petition (Crimi··

nal) 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.

685172.

In person for the Petitioner·

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-./ H. R. Khanna and M. N. Shroff for the Respondent.

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T1le Order of 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

issnes-one of prison justice and the o!her of sentencing caprice­

cl1allenge our attention and deserve more elaboration.

The facts, more flabbergasting than fantasy, present themselves in

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this Special Leave Petition. The appeal is against a conviction con-

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currenlly rendered for a novel and daring set of crimes and follow--up

sentence of three year prison term. The offence is bizarre, lhe

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196

SUPREME COURT REPORTS [1979] I s.c.R.

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 cuTminated

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

k~r, a block-maker of Bombay, placed an order to prepare an emboss­

ing seal in the name of the Karnataka University, Dharwar, and

forged a letter of authority purporting to have been signed by the Per­

sonal Assistant to the Vice-Chancellor of the said University authoris­

ing him to get the seals made. This Project Counterfeit Degrees, if

we may so call it, had, perhaps, as its object the concoction of certi­

ficates 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 than 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 infor­

mation 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 gnilty of the grave

offences charged, namely, under ss. 417 read with 511 LP.C., s. 467

LP.C.,

s. 468

LP.C. and ss. 471 read with 467 LP.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

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, !.) 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

condona­

tion of the delay, if true, discloses a disturbing episode of prison in­

justice. 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 nothing 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 ns believe that a clerk of his

office

did

deliver it to the prisoner but took it back for the purpose of enclosing

it

with a mercy petition to the

Governor for remission of sentence.

This exonerative story may be imaginary or true, but there is no writ­

ing 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 pro­

cess 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 m

Art.

21 of the Constitution, as made explicit by this Court in Maneka

Gandhi(1).

Having narrated the necessary facts which project the two pro­

found 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 endeavour

to

controvert the correctness of the findings of the courts below. We

have listened to him

at some length since this Court is the lasi in the

(1) [1978 2 s.c.R. 621.

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198 SUPREME COURT REPORTS [1979] ! S.C.R.

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

lest the endless chase for justice by every defeated litigant, civil and

criminal, should flood this Co~rt into dysfunction by a docket Uood.

It is dangerous to be too good. The recent pronouncement of a

Bench of this Court, through the learned Chief Justice, settles

witl1

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 ca.se, 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

requisit·es for the grant of special leave.('')

[Ujagar Singh & Anr. v. State (Delhi Admn.) J

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

F but insist on clarifying the two larger questions lying half-hidden. No

observations made by us should be understood as affecting the

pdi­

tioner'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

G suddenly slumped at the sentencing stage and, awarded a single day's

simple imprisonment.

The reasons given are symptomatic of chaotic

sentencing and confusion about the correctional orientation of punish­

ment. The court observed :

"Accused is a young man. He has no previous convic-

H tion.

He has a good family background. His father was a

Depuiy Collector

and Magistrate in the Mysore State.

He

(1) Order in SLP (Cr!. No. 1319 etc. of 1977 dt. 3 t-7-1978 (unreported cr>.se)

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, !.) 199

struck me as having intelligence above the average. He is

not a person with a criminal tendency. It is suggested by

the teamed P.P. thab possibly accused did this in a fit of des­

paration

as he was given notice of discharge by the

Saurashtra

lJ niversity regarding his Readership in Mathe­

matics.

The modem emphasis on the corrective aspect of

punishment cannot be ignored in this case while determin­

ing 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 [ do not think it desirable to send him to jail as he

might return as a confirmed criminal, which may

be a

liability to the society.

If, on the other hand, mercy is

shown to him at this stage of his first

imp_act with justice,

then it

is probable that he may be reclaimed as a good citizen

who can harness his talent for desirable activities.

In view

of this I propose to pass the following order to

which the

learned Sp/.

Public Prosecutor has no objection ....... .

Substantive sentences of one day S.I. to run concurrently.

(emphasis added)

It is

sul'prising that the Public Prosecutor has consented, on behalf

of the State, to this unsocial softness to an anti-social offender on con­

viction 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 treat­

ment 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 vic­

tims.

It is altogether a different thing to insist on therapeutic treat­

inent, 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

human.iscd and, on release, rehabilitated as a safe citizen. This

Court

has explained the correctional strategy of punishment in Giasuddin's

case('). Coddling is not correctional, any more than torture is de~er­

rent. While iatrogenic prison terms are bad because they delrumamze,

(!) Mohammad Giamddin v. State of Andhra Pradesh, [1978] I S.C.R. 153.

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200 SUPREME COURT REPORTS [1979] I sc.u.

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.

The 4 7th 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

sug­

gestions 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

occa­

sions, such as, judicial conferences, the subject will receive

attention.

It is of utmost importance that all State

instru­

mentalities involved in the investigation, prosecution and trial

of these offences must be oriented to the philosophy

which

treats these economic Qffences as a source of grave challenge

to the material wealth of the

nation.

18.3. We hope we shall not be misunderstood if we sug­

gest that even the holding of periodical meetings on sentenc­

ing 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 1 sen­

tencing. 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 ad­

ministrators are, in England, organised with increasing fre­

quency in nwny parts of the country with an annual confe­

rence. 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

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, J.) 20 I

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

A

imperative need. B

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 unreasonable-·

ness, 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

sentinds. Amplified, activist fashion, · 'proce­

dure' means 'fair and reasonable procedure' which comports with

civilised norms like natural justice rooted

firm in community cons­

ciousness,-not primitive processual barbarity nor legislated norma­

tive mockery.

In a !and-mark case, Maneka Gandhi('), 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

iil the sense that it must be fair and reasonable ?

Article 21 occurs in Part III of the Constitution whith con­

fers certain fundamental rights".

"Is the prescription of some sort of procedure enough

or must the procedure comply with any particular require­

ments

?

Obviously, the procedure cannot be arbitrary, un­

fair or unreasonable. This indeed

was conceded by the

learned Attorney General who with his usual candour frankly

(l) [1978] l sec 248 at 277, 281 and 284.

14-520 SCI/78

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202 SUPREME COURT REPORTS [1979) 1 S.C.R.

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 al) essential clement of equality or non­

arbitrariness pervades Article 14 like a brooding omnipre­

sence and the procedure contemplated by Article 21 must

answer the test of reasonableness in order to be in confor­

mity 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.

Auy procedure which permits impairment of the consti­

tutional right to go abroad without giving reasonable oppor­

tunity

to show cause cannot but be condemned as unfair and

unjust and hence, there.

is in the present case clear

infringe­

ment of the requirement of Article 21".

One of us in his separate opinion there observed (

1

)

"Procedure established by law", with its lethal potentia­

lity,

will reduce life and liberty to a

precarious plaything if

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 ab­

sent

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 prescrip­

tions, regardless of essential standards

? An enacted appari­

tion

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 arbi­

trary, freakish

or bizarre. A valuable constitutional right

can be canalised only by

civilired process .... What is funda­

mental

is

life a.nd liberty. What is procedural is the manner

(!) Per Krishna Iyer, J. at 337, 338.

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, !.)

of its exercise. This q>rnlity 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 illite­

racy,

t11e 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

203

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One component of fair procedure is natural justice. Gene­

rally speaking and subject to just exceptions, at least a sin)!le 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 a colle­

giate 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.

What follows from the appellate imperative? Every step that

makes the right of appeal fruitful is obligatory and ~very 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 Maneka

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 an appeal and (ii) provision of free legal ser­

vices to a prisoner who

is indigent or otherwise disabled from secur­

ing legal assistance where the ends of justice call for such service. Both

these are State responsibilities under Art. 2

l. Where tl1e procedural

law provides for

furtlier appeals what we have said regarding first

appeals

will similarly apply.

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In the present case there is something dubious about the delivery H

of the copy of the judgment by the Jailer

to the prisoner. A simple

proof of such delivery

is the latter's written acknowledgment. Any

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204 SUPREME COURT REPORTS [1979] 1 S.C.R.

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

o1!icials 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 neces­

sarily implied in the right of appeal conferred by the Code read with

the commitment to grocedural fairness in Art. 21. Section 363 of

the

Cr. P. Code is an activist

expression,' of this import of Art. 21 and

is inviolable. We say no more because we have condoned the defay

in the present case although it is pathetic that for want of a copy of

judgment the leave

is sought after the sentence has

boon 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.

Judi­

cial 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 sup­

portive 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

for steering the

wheels of equal justice nuder the law. Free legal

ser­

vices to the ueedy is part of the English criminal justice system. And

the American jurist, Prof. Vance of Yale, sounded sense for India too

when he said(l) :

"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(') :

"Not only those precedents but also reason and reflec­

tion require us to recognise that in 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

I

(1) Justice and Reform, Earl Johnson. Jr. p. 11.

(2) Processual Justice to the People (Ivfay, 1973) p. 69.

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, J.) 205

properly spend vast sums of money to ·establish machinery

to try defendants accused of crime. Lawyers to prosecnte

are everywhere deemed essential to protect the public's

interest in an orderly society. Similarly, there are few defen­

dants charged with crime who fail

to hire the best lawyers

they can get to prepare and present their defences. That

government hires lawyers

to

prooecute and defencfants who

have the money hire lawyers to defend are the strongest

indications of the widespread belief that lawyers in crimi­

nal courts are necessities, not luxuries. The right

of one

charged with crime

to counsel may not be deemed funda­

mental 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

proce­

dural 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 philooophy of legal aid as an inalienable element of fair pro­

cedure is evident from

Mr. Justice Brennan's(') well-known words:

"Nothing rankles more in the human heart than a brood­

ing 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 exis­

tence of free democracy

is not imaginary but very real,

be­

cause democracy's very life depends upon making the machi­

nery of jus!ice so effecfr.~e that every citizen shall believe in

and benefit by its impartiality and fairness".

More recently, the U.S. Supreme Court, in Raymond Hamlin ha8

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

(I) Legal aid and Legal Education p. 94.

(2) United States Supreme Court Reports, Vol. 32. p. 530.

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206 SUPREME COURT REPORTS [1979] l s.r;.R.

charged with cri;llle, he is incapable, generally, of determin·

ing for himself whether the indictment is good or bad. He

is µnfamiliar 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

evi­

dence irrelevant to the. issue or otherwise inadmissible. He

lacks both the skill and knowledge a~equately to prepare

his defense, even though he have a perfect one. He re­

quires the gµiding hand of counsel at every step in the pro­

ceedings against him. Without it, though he be not guilty,

he faces the danger of cooviction because he doe.~ not know .

how to establish his innocence. If that be true of men of

i11te;//jge11ce, how much more true is it of the ignorant and

illiterate

or those of feeble

intellect."

The right of O)le 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 be 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, ALR 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 sh®ld consider the probable sentence that will follow if a

convi,ction

is

01'/Bined. The more serious the likely consequences,

the greater i6 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 rele-

vant 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 f1111damental

pre­

H mise that counsel should be provided in the criminal proceedings for

offences

punishable by loss of liberty, except those types of

offence!>

for which such punishment is not likely to be imposed. Thus in

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, J.) 20 7

America, strengthened by the Powell, Gideon and Hamlin cases, A

counsel for the accused in the more serious c]J!.ss of cases which

threaten a person with imprisonment

is

regarded as an essential com­

ponent of the admin.istratio.n of criminal justice and as part of proce­

dural fair-play. This is so without regard to the Vlth amendment be­

cause lawyer participation is ordinarily an assurance that deprivation B

of liberty will not be in violation of procedure c;stablished by Jaw.

In short, it is the warp and woof of fair procedure in a sophisticated,

legalistic system plus lay illiterate indigents aplenty. The Indian

socio-legal milieu makes free legal service, at trial and higher levels,

an imperative processual piece of criminal justice where deprivation

of life or persQn~l liberty hangs in the judicial balance. · c

The widespread insistence on free legal assistance, where liberty

is in jeopardy,

is obvious

f~om the Universal Declaration of Huinan

Rights:

Art. 8. Everyone has the right to an effective remedy by

the competent national tribunals for acts violating the funda­

mental rights granted by the Constitution or by law.

Art.

14(3) of

tht; International Covenant on Civil and Political Rights

guarantees to everyone :

"the right to be tried in, his presence, and to defend him­

self

in person or through legal assistance of his own choos­

ing;

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 paY!llent by him in any such case if he does not have

sufficient means

to pay for

it."

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the free legal service desideratum as integral to processual fair-play

for prisoners.

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

th~ 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, appli­

cations for commutation

or parole, bail motions and claims

( 1)

Processual Justice to the People May, 1973, p. 34.

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208 SUPREME COURT REPORTS [1979] 1 S.C. R,

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 Art. 39A,

a fundamental constitutional directive, states :

·

39A. Equal Justice and free legal aid.

The ~tate 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

citi­

zen 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 0th.er 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 bas laid down that personal

liberty cannot

be. cut

out or cut down without fair legal procedure.

Enough bas been set out to establish that a prisoner, deprived of bis

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

bis 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

1Arts. 21, and 39.A, of the Consti­

tution, 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 Con­

stitution. The inference is inevitable that this is a State's duty and

not government's charity. Eq~ally affirmative is the implication that

while legal services must be free to the beneficiary, the lawyer himself

has to be reasonably remunerated f.OC bis services. Surely, the pro­

fession bas a public commitment to the people but mere philanthropy

of its members yields short mileage in the long run. Their services,

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M. H. HOSKOT v. MAHARASHTRA (Krishna Iyer, J.) 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

conrt

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

pro'.erred 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 am­

plitude but in the peremptory sense

of Art. 21 confined to prison

~ituations.

While dismissing the Special Leave Petition we declare the legal

position

to put

ii beyond doubt :

1. Courts shall forthwith furnish a free transcript of the judgment

when sentencing a person to prison term;

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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

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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.

Wh~re the prisoner is disabled from engaging a lawyer, on

reasonable grounds such as indigence or incommunicado situation,

the Conrt shall,

if the circumstances of the case, the gravity of the

sentence, and the ends of justice so require, assign competent counsel imp 01 pgfqo iou sgop A:piid gq1 pgpJAOrd 'rougJgp s,rguosird gql roJ

lawyer;

5. The State which prosecuted the prisoner and set in motion the

process

which deprived him of his liberty shall pay to assigned coun­

sel such sum as the court may equitably fix.

6. These benign prescriptions

"perate 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. J'etition dismissed.

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