# MADRAY HAYAWADANRAO HOSKOT v. STATE OF MAHARASHTRA

- **Citation:** [1979] 1 S.C.R. 192
- **Court:** Supreme Court of India
- **Decided:** 1978-08-17
- **Bench:** V. R. Krishna Iyer, D. A. Desai, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madray-hayawadanrao-hoskot-v-state-of-maharashtra-7572
- **Pages:** 18

## Headnote

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 Coiistitution, 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 JUdgm~nt 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-
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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
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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 according to procedure established by law".
"Procedure established by la.w" are wo

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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 Coiistitution, 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 JUdgm~nt 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-
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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 according to procedure established by law".
"Procedure established by la.w" are words
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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
Dcriminal conviction is fraught with long loss of liberty, is basic to civilized 1unsprudencr. It is integral to fair procedure, natural justice and normative universality 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 :Jbiigatory and every action or inaction \vhich stultifies it is unfair and, ergo, unconstiE:
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
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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]
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. 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.
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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]
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4. Where the prisoner seeks to file an appeal or revision
every facility tor
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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 impnsonment illegal. These obliga·tions are necessarily implied in the right of appeal conferred 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
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is inviolable.
[204A-B & 209DE]
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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, &
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( 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
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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 present petition, the party though proffered legal aid by the Court preferred to argue
himself.
f197H, 198A, 209BJ
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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 upperberth 'mafia' ill serves social justice. Soft sentencing justice is
gross injustice
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where many innocents are the potential victin1S. It is altogether a different th1r.g
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to insist on therapeutic treatment, hospital setting and correctional goals inside
the prison "even punctuated by parole, opportl,1nities for welfare work, mcditational 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 dehun1anize, it is functional failure and judicial pathology to
hold out a benignly self defeating non-sentence to deviants who endanger the
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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 capricecl1allenge 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 conH
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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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 because 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 another field has landed him in the present criminal case.
According
to the prosecution, Dr. Hoskot, the petitioner, approached Dabholk~r, 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. 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 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 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 condonation of the delay, if true, discloses a disturbing episode of prison injustice.
To start with the petitioner complained that the High Court
granted a copy of the judgment of 1973 only in 1978, a further probe
disclosed that a free copy had been sent promptly by the High Court,
meant for the applicant, to the Superintendent.
Yeravada Central
Prison, Pune.
The petitioner denies having been served
that copy
and there is 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 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 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 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 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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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 concurrent holdings. In this view, we do not examine the merits further
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but insist on clarifying the two larger questions lying half-hidden.
No
observations made by us should be understood as affecting the pditioner'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
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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 punishment.
The court observed :
"Accused is a young man.
He has no previous convicH
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 desparation as he
was given notice of discharge by the
Saurashtra lJ niversity regarding his Readership in Mathematics.
The modem emphasis on
the
corrective aspect of
punishment cannot be ignored in this case while 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 [ 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 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 treatinent, 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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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 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 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 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 1\f 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 nwny 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
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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
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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, · '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 !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 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
(l) [1978] l sec 248 at 277, 281 and 284.
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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 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.
Auy procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and
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 ( 1)
"Procedure established by law", with its lethal potentiality, 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 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 within 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
can be canalised only by civilired process .... What is fundamental is life a.nd liberty. What is procedural is the manner
(!) Per Krishna Iyer, J. at 337, 338.
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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 illiteracy, 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
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D
One component of fair procedure is natural justice.
Generally 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 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.
What follows from the appellate imperative? Every step that
makes the right of appeal fruitful is obligatory and ~very 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).
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 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. 2 l. Where tl1e procedural
law provides for furtlier appeals what we have said regarding first
appeals will similarly apply.
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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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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 necessarily 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. 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
for steering the wheels of equal justice nuder the law. Free legal services 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 reflection 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
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(1) Justice and Reform, Earl Johnson. Jr. p. 11.
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Processual Justice to the People (Ivfay, 1973) p. 69.
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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 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 prooecute and defencfants who
have the money hire lawyers to defend are the strongest
indications of 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 philooophy of legal aid as an inalienable element of fair procedure is evident from Mr. Justice Brennan's(') 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 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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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 evidence 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 requires the gμiding hand of counsel at every step in the proceedings 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 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 f1111damental preH
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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