Special Leave Petition Criminal No 408 of 1978
From the Judgment and order dated 22 11 1973 of the Bombay High Court in Criminal Appeal No 747 72 with Criminal Review Application No 68572
In person for the Petitioner H R Khanna and M N Shroff for the Respondent
The order Gr the Court was delivered by KRISHNA IYER J A short paragraph might perhaps have been sufficient as obituary note on this Special Leave Petition but two basic issues one of prison justice and the other of sentencing caprice challenge our attention and deserve more elaboration
The facts more flabbergasting than fantasy present themselves in this Special Leave Petition
The appeal is against a conviction con currently rendered for a novel and daring set of crimes and follow up sentence of three year prison term The offence is bizarre the 196 offender perplexing the sentence incredibly indiscreet at the Sessions Court stage but reasonably just at the High Court level and to cap it all the delay in seeking leave from this Court is doubly shocking be cause it is inordinate and implicates the prison administration
A miniaturised version of the prosecution which has culminated in the conviction is all that is necessary in view of the ultimate order we propose to make
The petitioner a Reader in the Saurashtra University claims to be a Ph D Of Karnataka University although there is a controversy as to this high academic qualification being a fabrication
In the present case we are not concerned with it directly
His moot academic proficiency apart his abortive enterprise in an other field has landed him in the present criminal case
According to the prosecution Dr Hoskot the petitioner approached Dabhol kar a block maker of Bombay placed an order to prepare an embossing seal in the name of the Karnataka University Dharwar and forged a letter of authority purporting to have been signed by the Personal Assistant to the Vice Chancellor of the said University authorisig him to get the seals made
This Project Counterfeit Degrees if we may so call it had perhaps as its object the concoction of certificates of degrees by the Karnataka University
A degree hungry community like ours offers a happy hunting ground for professionals in the fine art of fabricating academic distinctions
If the expertise is perfect and its exercise undetected there is more money in it that in an honest doctorate
Anyway the petitioner s mis adventure was intercepted before it could fulfil itself because Dabholkar the Bombay block maker was too clever a customer
He gave pre emptive information to the police leading to the unearthing in time of the criminal scheme
The Sessions court tried the petitioner and held as proved beyond reasonable doubt that the petitioner was guilty of the grave offences charged namely under sections 417 read with 511 IPC section 467 IPC section 468 IPC and sections 471 read with 467 IPC After having rendered this draconian verdict against a person who was a Reader in a University and claimed to be MSc Ph D around 30 years old and coming from a middle class family beyond economic compulsions to make a living by criminal means the court swerved towards a soft sentence of simple imprisonment till the rising of the court and some fine
We are scandalized by this soft justice syndrome vis a vis white collar offenders
It stultifies social justice and camouflages needed severity with naive leniency
However two appeals were carried to the High Court one by the petitioner against his conviction and the other by The State against the naive sentence
The High Court dismissed the appeal against the conviction and in allowance of the State s 197 prayer for enhancement imposed rigorous imprisonment for three years
The present petition for special leave to appeal is against this heavy sentence
The High Court s judgment was pronounced in November 1973 but the Special Leave Petition has been made well over four years later
This hiatus may appear horrendous all the more so because the petitioner has undergone his full term of imprisonment during this lengthy interregnum
The explanation offered by him for condonation of the delay if true discloses a disturbing episode of prison injustice
To start with the petitioner complained that the High Court granted a copy of the judgment of 1973 only in 1978 a further probe disclosed that a free copy had been sent promptly by the High Court meant for thc applicant to the Superintendent
Yeravada Central Prison Pune
The petitioner denies having been served that copy and there is nothings on record which bears his signature in token of receipt of the High Court s judgment
The Prison Superintendent on The other hand would have us believe that a clerk of his office did deliver it to the prisoner but took it back for the purpose of enclosing L it with a mercy petition to the Governor for remission of sentence
This exonerative story may be imaginary or true but there is no writing to which the petitioner is a party to validate this plea
The fact remains that prisoners are situationally at the mercy of the prison brass  but their right to appeal which is part of the constitutional process to resist illegal deprivation of liberty is in peril if district jail officials  ipse dixit that copies have been served is to pass muster without a title of prisoner s acknowledgment
What is more there is no statutory provision for free legal serives to a prisoner in absence of which a right of appeal for the legal illiterates is nugatory and therefore a negation of that fair legal procedure which is implicit in article 21 of the Constitution as made explicit by this Court in Maneka Gandhi1
Having narrated the necessary facts which project the two profound but neglected problems of criminal jurisprudence we should have proceeded to discuss the merits of the evidence to decide whether leave should be granted to this petitioner
Indeed although the court had assigned a lawyer to render free legal service to the petitioner and argue the case on his behalf Dr Hoskot decided to dispense with legal assistance and argued on his own
Of course he has presented his case capably and with analytical precision in his endeavor to controvert the correctness of the findings of the courts below
We have listened to him at some length since this Court is the last in the 1 1978 2 SCR 621
198 Indian pyramid of justice and a party in person elicits from us extra solicitude so that he may not suffer from a sense of handicap due to the absence of professional legal service
Nevertheless this Court has laid down certain fundamental principles governing its jurisdiction when special leave is sought
We cannot depart from these criteria 13 lest the endless chase for justice by every defeated litigant civil and criminal should flood this Court into dysfunction by a docket flood
It is dangerous to be too good
The recent pronouncement of a Bench of This Court through the Learned Chief Justice settles with clarity the decisive jurisdictional guideline
We quote In view of the concurrent findings of the Sessions Court and the High Court on the principal issues arising in the case we see no justification for granting special leave for a reconsideration of the question as regards the guilt of the petitioners
There is hardly a case civil or criminal which does not raise some question of law or the other
But no question of law of general public importance is involved in these petitions
It is time that it was realised that the jurisdiction of this Court to grant special leave to appeal can be invoked only in very exceptional circumstances
A question of law of general public importance or a decision which shocks the conscience of the court are some of the prime requisites for the grant of special leave1 Ujjagar Singh  Anr
vs State Delhi Admn   Bearing this policy in mind coupled with the efficacy of concurrent findings of Fact we decline the request for leave even assuming there are some improbabilities in the prosecution case or errors in the con current holdings
In this view we do not examine the merits further but insist on clarifying the two larger questions lying half hidden
No observations made by us should be understood as affecting the petitioner s plea in any other criminal case he may be facing
The Sessions Court
having found a university professor guilty of organising abortively though a scheme of making bogus degrees suddenly slumped at the sentencing stage and awarded a single day s simple imprisonment
The reasons given arc symptomatic or chaotic sentencing and confusion about the correctional orientation of punishment
The court observed Accused is a young man
He has no previous conviction 
He has a good family background
His father was a Deputy Collector and Magistrate in the Mysore State
He 1 order in SLPCrl
No1319ete
Of 1977dt31 7 1978unreported case 199 struck mc as having intelligence above the average
He is not a person with a criminal tenancy
It is suggested by the learned PP that possibly accused did this in a fit of despartion as he was given notice of discharge by The Saurashtra University regarding his Readership in Mathematics
The modern emphasis on the corrective aspect of punishment cannot be ignored in this case which determining the adequacy of sentence having regard to the nature of the offence and the background of the accused I think that I should give one chance for the accused to improve
Hence I do not think it desirable to send him to jail as he might return as a confirmed criminal which may he a liability to the society
If on the other hand mercy is shown to him at this stage of his first impact with justice then it is probable that he may be reclaimed as a good citizen who call harness his talent for desirable activities
In view
of this T propose to pass the following order to which the learned Spl
Public prosecutor has no objection Substantive sentences of one day SI to run concurrently
emphasis added It is surprising that the Public Prosecutor has consented on behalf of the State to this unsocial softness to an anti social offender on conviction for grave charges
Does the Administration sternly view white collar offenders or abet them by agreeing to award of token punishment making elaborate trials mere tremendous trifles  Social defence is the criminological foundation of punishment
The trial judge has confused between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences
The first is basic the second pathetic
That Court which ignores the grave injury to society implicit in economic crimes by the upper berth mafia  ill serves social justice
Soft sentencing justice is gross injustice where many innocents are the potential victims
It is altogether a different thing to insist on therapeutic treatment hospital setting and correctional goals inside the prison even punctuated by parole opportunities for welfare work meditational normalisation and healthy self expression so that the convict may be humanised and on release rehabilitated as a safe citizen
This Court has explained the correctional strategy of punishment in Giasuddin s case1
Coddling is not correctional any more than torture is deter rent
While iatrogenic prison terms are bad because they dehumanize 1 Mohammad Giasuddin vs State of Andhra Pradesh 19781 SCR153
200 it is functional failure and judicial pathology to hold out a benignly self efeating non sentence to deviants who endanger the morals and morale the health and wealth of society
The 47th Report of the Law Commission of India noticed this weakness for economic offenders in the judicial personnel of course also in the administrative and legislative actors and recommended 182
Suggestions are often made that in order that the lower Magistracy may realise the seriousness of some of the social and economic offences some method should be evolved of making the judiciary conscious of the grave damage caused to the country s economy and health by such anti social crimes
The frequency and emphasis with which these suggestions have been made and the support which they have received from very high officers has caused some anxiety to us
But we hope that the higher courts are fully alive to the harm and we have no doubt that on appropriate occasions such as judicial conferences the subject will receive attention
It is of utmost importance that all State instrumentalities involved in the investigation prosecution and trial of these offences must be oriented to the philosophy which treats these economic Offence as a source or grave challenge to the material wealth of the nation
We hope we shall not be misunderstood if we suggest that even the holding of periodical meetings on sentencing may be beneficial not in the context of economic offences only but in the evolution of a rational and consistent policy of sentencing
Experience of England is by now familiar to those interested in the subject
A meeting of over 100 judges was held in the Royal Courts of Justice in London on January 7 8 1965 to take part in exercises designed to increase the uniformity of sentencing
The Lord Chief Justice expressed the hope that the meeting would be a model for similar ones throughout the country
Conferences between judges magistrates and penal administrators are in England organised with increasing frequency in many parts of the country with an annual conference in London for judges of the Supreme Courts
Besides holding councils on sentencing it may be worthwhile to hold workshops  which would be less formal 201 but equally useful and likely to give concrete results
Such workshops could for example be attended by all Special Judges or other officers concerned with economic offences
National courses on sentencing strategies vis a vis social justice is a neglected cause and the Administration is as yet innocent  of this imperative need
The second profound issue thrown up accidentally by Dr Hoskot s sojourn in the Yeravada jail disturbs us more because less capable men most prisoners in this country belong to the lower illiterate bracket suffer silent deprivation of liberty caused by unreasonableness arbitrariness and unfair procedures behind the stone walls  and iron bars 
Freedom is what freedom does and here we go straight to article 21 of the Constitution where the guarantee of personal liberty is phrased with superb amplitude article 21 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
emphasis added Procedure established by law  are words of deep meaning for all lovers of liberty and judicial sentinels
Amplified activist fashion procedure  means fair and reasonable procedure  which comports with civilised norms like natural justice rooted firm in community consciousness not primitive processual barbarity nor legislated normative mockery
In a land mark case Maneka Gandhi1 Bhagwati J on this point the Court was unanimous explained Does Article 21 merely require that there must be some semblance of procedure howsoever arbitrary or fanciful
prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable  Article 21 occurs in Part III of the Constitution which confers certain fundamental rights
Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements  obviously the procedure cannot be arbitrary unfair or unreasonable
This indeed was conceded by the learned Attorney General who with his usual candour frankly 1 1978 1 SCC 248 at 277 281 and 284 14 520 SCI78 202 stated that it was not possible for him to contend that any procedure howsoever arbitrary oppressive or unjust may be prescribed by the law The principle of reasonableness which legally as well
as philosophically is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14
It must be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied
Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause can not but be condemned as unfair an3 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 observedu Procedure established by law with its lethal potentiality will reduce life and liberty to a precarious plaything it we do not ex necessitate import into those weighty words an adjectival rule of law civilised in its soul fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head
Can the sacred essence of the human right to secure which the struggle for liberation with do or die  patriotism was launched be sapped by formalistic and pharisaic prescriptions regardless of essential standards  An enacted apparition is a constitutional illusion
Processual justice is writ patently on Article 21
Procedure which deals with the modalities of regulating restricting or even rejecting a fundamental right falling with in Article 21 has to be fair not foolish carefully designed to effectuate not to subvert the substantive right itself
Thus understood procedure  must rule out anything arbitrary freakish or bizarre
A valuable constitutional right II can be canalised only by civilised process
What is fundamental is life and liberty
What is procedural is the manner 1 per Krishna lyer J at 337 338
203 of its exercise
This quality of fairness in the process is emphasised by the strong word established  which means settled firmly  not wantonly or whimsically
If it is rooted in the legal consciousness of the community it becomes established  procedure
And law  leaves little doubt that it is normae regarded as just since law is the means and justice is the end
Procedural safeguards are the indispensable essence of liberty
In fact the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human right ring
In India because of poverty and illiteracy the people are unable to protect and defend their rights observance of fundamental rights is not regarded as good politics and their transgression as bad politics
To sum up procedure  in Article 21 means fair not formal procedure Law  is reasonable law not any enacted piece  one component of fair procedure is natural justice
Generally speaking and subject to just exceptions at least a single right of appeal on facts where criminal conviction is fraught with long loss of liberty is basic to civilised jurisprudence
It is integral to fair procedure natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on Lt collegiate basis
Ill short a first appeal from the Sessions Court to the High Court as provided in the Criminal Procedure Code manifests this value upheld in article 21
What follows from the appellate imperative  Every step that makes the right of appeal fruitful is obligatory and every action or in action which stultifies it is unfair and ergo unconstitutional  In a sense even article 19 may join hands with article 21 as the Menka Gandhi reasoning discloses
Pertinent to the point before us are two requirements 1 service of a copy of the judgment to the prisoner in time to file all appeal and ii provision of free legal ser vices to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service
Both these are State responsibilities under article 21
Where the procedural law provides for further appeals what we have said regarding first appeals will similarly apply
In the present case there is something dubious about the delivery of the copy of the judgment by the Jailor to the prisoner
A simple proof of such delivery is the latter s written acknowledgment
Any 204 jailor who by indifference or vendetta withholds the copy thwarts the court process and violates article 21 and may pave the way for holding the further imprisonment illegal
We hope that Jail Manuals will be updated to include the mandate if there be any omission and deviant jail officials punished
And courts when prison sentence is imposed will make available a copy of the judgment if he is straight marched into the prison
All the obligations we have specificated are necessarily implied in the right of appeal conferred by the Code read with the commitment to procedural fairness in article 21
Section 363 of the Cr
P Code is all activist expression of this import of article 21 and is inviolable
We say no more because we have condoned the delay in the present case although it is pathetic that for want of a copy of judgment the leave is sought after the sentence has been served out
The other ingredient of fair procedure to a prisoner who has to seek his liberation through the court process is lawyer s services
Judicial justice with procedural intricacies legal submissions and critical examination of evidence leans upon professional expertise and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side
Our judicature moulded by Anglo American models and our judicial process engineered by kindred legal technology compel the collaboration of lawyer power or steering the wheels of equal justice under the law
Free legal services to the needy is part of the English criminal justice system
And the American jurist Prof Vance of Yale sounded sense for India too when he said1 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 observed2 Not only those precedents but also reason and reflection require us to recognise that ill our adversary system of criminal justice any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him
This seems to us to be an obvious truth
Governments both State and Federal quite 1 Justice and Reform Earl Johnson Jr p 11
2 Processual Justice to the People May 1973 p 69
205 properly spend vast sums of money to establish machinery to try defendants accused of crime
Lawyers to prosecute are everywhere deemed essential to protect the public s interest in an orderly society
Similarly there
are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications cf the widespread belief that lawyers in criminal courts are necessities not luxuries
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but is in ours
From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law
This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him
The philosophy of legal aid as an inalienable element of fair procedure is evident from Mr Justice Brennan s1 well known words Nothing rankles more in the human heart than a brooding sense of injustice
Illness we can put up with
But injustice makes us want to pull things down
When only the rich can enjoy the law as a doubtful luxury and the poor who need it most cannot have it because its expense puts it beyond their reach the threat to the continued existence of free democracy is not imaginary but very real because democracy s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness
More recently the US Supreme Court in Raymond Hamlin has extended this processual facet of Poverty Jurisprudence
Douglas J there explicated2 The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel
Even the intelligent and educated layman has small and sometimes no skill in the science of law
If 1 Legal aid and Legal Education p 94
2 United States Supreme Court Reports Vol
32 p 530
206 charged with crime he is incapable generally of determining for himself whether the indictment is good or bad
He is unfamiliar with the rules of evidence
Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible
He lacks both the skill and knowledge adequately to prepare his defense even though he have a perfect one
He requires the guiding hand of counsel it every step in the proceedings against him
Without it though he be not guilty he faces the danger of conviction because he does not know how to establish his innocence
If that be true of men of intelligence how much more true is it of the ignorant and illiterate or those of feeble intellect
 The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours
From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law
This noble ideal cannot he realized if the poor man charged with crime has to face his accusers without a lawyer to assist him
372 US at 344
9 L Ed 2d at 805  Both Powell and Gideon involved felonies
But their rationale has relevance to any criminal trial where an accused is deprived of his liberty
The court should consider the probable sentence that will follow if a conviction is obtained
The more serious the likely consequences the greater is the probability that a lawyer should be appointed 
The court should consider the individual factors peculiar to each case
These of course would be the most difficult to anticipate
One relevant factor would be the competency of the individual defendant to present his own case
Jon Richard Argersinger vs Raymond Hamlin  32L Ed 2d 530 at 535 36 and 554
Emphasis added The American Bar Association has upheld the fundamental premise that counsel should be provided in the criminal proceedings for offences punishable by loss of liberty except those types of offences for which such punishment is not likely to be imposed
Thus in 207 America strengthened by the Powell Gideon and Hamlin cases counsel for the accused in the more serious class of cases which threaten a person with imprisonment is regarded as an essential component of the administration of criminal justice and as part of procedural fair play
This is so without regard to the VIth amendment because lawyer participation is ordinarily an assurance that deprivation of liberty will not be in violation of procedure established by law
In short it is the warp and woof of fair procedure in a sophisticated legalistic system plus lay illiterate indigents aplenty
The Indian social legal milieu makes free legal service at trial and higher levels
an imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance
The widespread insistence on free legal assistance where liberty is in jeopardy is obvious from the Universal Declaration of Human Rights article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law
article 143 of the International Covenant on Civil and Political Rights guarantees to everyone the right to be tried in his presence and to defend himself in person or through legal assistance of his own choosing to be informed if he does not have legal assistance of his right and to have legal assistance assigned to him in any case where the interests of justice shall require and without payment by him in any such case if he does not have sufficient means to pay for it
 Many high level Indian Committees and Commissions have emphasised the free legal service desideratum as integral to processual fair play for pr sellers
For example one such committee has stated1 93
Prisoners men and women regardless of means are a peculiarly handicapped class
The morbid cell which con fines them walls them off from the world outside
Legal remedies civil and criminal are often beyond their physical and even financial reach unless legal aid is available within the prison as is provided in some States in India and in other countries
Without legal aid petitions of appeal applications for commutation or parole bail motions and claims 1 Processual Justice to the people May 1973 p 34 208 for administrative benefits would be well nigh impossible
There is a case for systematised and extensive assistance through legal aid lawyers to our prison population
The Central Government is evolving a comprehensive programme while many States already have fragmentary schemes
It needs no argument to drive home this point now that Arts 39A a fundamental constitutional directive states 39A Equal Justice and free legal aid
The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities
emphasis added 
This article is an interpretative tool for article 21
Partial statutory implementation of the mandate is found in Sec
304 Cr P Code and in other situations courts cannot be inert in the face of article 21 and 39A
We may follow up the import of Maneka Gandhi and crystallise the conclusion
Maneka Gandhi s case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure
Enough has been set out to establish that a prisoner deprived of his freedom by court sentence but entitled to appeal against such verdict can claim as part of his protection under article 21 and as implied in his statutory right to appeal the necessary concomitant of right to counsel to prepare and argue his appeal
If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal for want of legal assistance there is implicit in the Court under article 142 read with articles 21 and 39A of the Constitution power to assign counsel for such imprisoned individual for doing complete justice
This is a necessary incident of the right of appeal conferred by the Code and allowed by article 136 of the Constitution
The inference is inevitable that this is a State s duty and not government s charity
Equally affirmative is the implication that while legal services must be free to the beneficiary the lawyer himself has to be reasonably remunerated for his services
Surely the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run
Their services 209 especially when they are on behalf of the State must be paid for
Naturally the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner
Of course the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case
In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise
That discretion resides in the court
In the present petition the party though proferred legal aid by the court preferred to argue himself
Even so we uphold the right to counsel not in the permissive sense of article 221 and its wider amplitude but in the peremptory sense of article 21 confined to prison situations
While dismissing the Special Leave Petition we declare the legal position to put it beyond doubt 1
Courts shall forthwith furnish a free transcript of the judgment when sentencing a person to prison term 2
In the event of any such copy being sent to the jail authorities for delivery to the prisoner by the appellate revisional or other court the official concerned shall with quick despatch get it delivered to the sentence and obtain written acknowledgment thereof from him
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
Where the prisoner is disabled from engaging a lawyer on reasonable grounds such as indigence or incommunicado situation the Court shall if the circumstances of the case the gravity of the sentence and the ends of justice so requires assign competent counsel of for the prisoner s defence provided the party does not object to that lawyer 5
The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to assigned counsel such sum s the court may equitably fix
These benign prescriptions operate by force of article 21 strengthened by article 191d read with sub article 5 from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril
SR Petition dismissed


Summary:
Under section 3631 of the Criminal Procedure Code 1973 when the accused is sentenced to imprisonment a copy or the judgment shall immediately after the pronouncement of the judgment be given to him free of cost
Under section 3632 on the application of the accused a certified copy of the judgment or when he so desires z translation in his own language if practicable or in the language of the Court shall be given to him without delay and such copy shall in every case where the judgment is appealable by the accused be given free of cost Provided that where the sentence of death is passed or confirmed by the High Court a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same
section 387 of the Code these provisions contained in Chapter XXVII are applicable so far as may be practicable to the judgment in appeal by a Court of Sessions or Chief Judicial Magistrate
section 388 however requires that the order of the High Court on appeal should be certified to lower court and the court to which the High Court certifies its judgment shall make such orders as are comfortable to the judgment of the High Court
The petitioner was tried for the various offences under s417 read with s511 IPC section 467 IPC section 468 IPC and 471 read with section 467 IPC by the Sessions Court and found guilty of the said offences but sentenced to a soft sentence of simple imprisonment till the rising of the Court and some fine
Two appeals were filed one by the petitioner and the other by the State
The High Court dismissed the petitioner s appeal and accepting the State s appeal enhanced the sentence to three years on 22 11 73
On 26 11 73 in conformity with the Judgement of the High Court the Sessions Court passed necessary orders to the Central Prison Authority Bombay to take him into custody
He was later on transferred to Yeravada Jail Pune
The petitioner under went the full period of im 193 prisonment and filed the special leave petition with a petition for condonation  of delay contending that on 10 12 73 he had applied under section 3632 read with section 387 of the Code for a certified copy of the judgment dated 22 11 73 through the jail authorities and that though the copy was received by the jail authorities in March 1 1974 from the High Court it was never delivered to him with the result he not only lost his right to appeal by special leave but was forced to come up with a condonation petition after obtaining another certified copy from the High Court
Condoning the delay and dismissing the petition the Court  HELD l Freedom is what freedom does
In article 21 of the Constitution the guarantee of the personal liberty is phrased with superb amplitude with the words No person shall be deprived of his life or personal liberty except according to procedure established by law
Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels
Amplified activist fashion procedure  means fair and reasonable procedure  which comports with civilised norms like natural justice rooted firm in community consciousness not primitive processual barbarity nor legislated normative mockery
201C E 2
One component of fair procedure  is natural justice
Generally speaking and subject to just exceptions at least a single right of appeal on facts where criminal conviction is fraught with long loss of liberty is basic to civilized jurisprudence
It is integral to fair procedure natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis
In short a first appeal from the Sessions Court to the High Court as provided in the Criminal Procedure Code manifests this value upheld in article 21
Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and ergo unconstitutional In a sense even article 19 may join hands with article 21 as the Maneka Gandhi reasoning discloses
Maneka Gandhi s case has laid down that personal liberty cannot be cut out or down without fair legal procedure
197F 203D E F 208E Pertinent to the point in the case are two requirements i service of a copy of the judgment to the prisoner in time to file an appeal anl 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 article 21 and apply where procedural law provides
for further appeals as well
203F G Maneka Gandhi vs Union of India  referred to
Judicial Justice with procedural intricacies legal submissions and critical examination of evidence leans upon professional expertise and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side
Our Judicature and Judicial Process engineered by kindred legal technology compel the colloboration of lawyer power for steering the wheels of equal justice under the law
204C D If a prisoner who is sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appear for want of legal assistance there is implicit in the Court under article 142 194 read with Articles 21 and 39A of the Constitution power to assign counsel for such imprisoned individual for doing complete justice
This is a necessary incident of the right of appeal conferred by the Code and allowed by article 136 of the Constitution
The accused has a right to counsel not in the permissive sense of article 221 and its wider amplitude but in the peremptory sense of article 21 confined to prison situations
28F G 209C 4
Where the prisoner seeks to file an appeal or revision every facility for exercise of that right shall be made available by the jail administration
209E aCourts shall forthwith furnish free transcript copy OF the judgment when sentencing a person to prison term
In the event of any such copy being sent to the jail authorities for delivery to the prisoner by the appellate unrevisional or other Court the official concerned shall with quick despatch
get it delivered to the sentence and obtain written acknowledgement thereof from him
Any jailor who by indifference or vendetta withholds the copy thwarts the Court process and violates article 21 and may pavc the way for holding the further imprisonment illegal
These obligations are necessary implied in the right of appeal conferred by the Code read with the commitment to procedural fairness in article 21
section 363 of the Cr
PC is an activist expression of this import of article 21 and is inviolable
204A B  209DE John Richard Argersinger vs Raymond Hamlin  530 at 535 36 and 554 quoted with approval
article 8 of the Universal Declaration on Human Rights and article 143 of the International Covenant on Civil and Political Rights referred to
b The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to the assigned counsel such sum as the Court may equitably fix
the Court may judge the situation and consider from all angles whether it is necessary in the ends of justice to make available legal aid in the particular
That discretion resides in the Court
209A B  G c These benign prescriptions operate by force of article 21 strengthened by article 191d read with sub article 5 from the lowest to the highest Court where deprivation of life and personal liberty is in substantial peril
209H 5
Since the Supreme Court is the last in Indian pyramid of justice every party in person elicits from the Court extra solicitude so that he may not suffer from a sense of handicap due to the absence of professional legal service
The present petition the party though proffessional legal aid by the Court preferred to argue himself 1971H 198A 209B 6
a The Supreme Court has laid down certain fundamental principles its governing its jurisdiction when special leave is sought under article 136 of the Constitution
The Court cannot depart from this criteria lest the endless chase for justice by every defeated litigant civil and criminal should flood it into dysfunction198A B 195 Ujjagar Singh  Anr
vs State Delhi Admn order in SLP Crl No A 1319 etc
Of 1977 dt 31 7 78 unreported case
b The soft justice syndrome vis a vis white collar offenders scandalizes the Court
It stultifies social justice and camouflages needed severity with naive leniency
196G c Social defence is the criminological foundation of punishment
In the instant case the trial judge has confused between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences
The first is basic and the second pathetic
That Court which ignores the grave injury to society implicit in economic crimes by the upperberth mafia  ill serves social justice
Soft sentencing justice is gross injustice where many innocents are the potential victims
It is altogether a different thing to insist on therapeutic treatment hospital setting and correctional goals inside the prison even punctuated by parole opportunities for welfare work meditational normalisation and healthy self expression so that the convict may be humanised and on release rehabilitated as a safe citizen
Coddling is not correctional any more than torture is deterrent
While iatrogenic prison terms are bad because they dehumanize it is functional failure and judicial pathology to hold out a benignly self defeating non sentence to deviants who endanger the morals and morale the health and wealth of society
199E H 200A Mohammad Giasuddin vs State of Andhra Pradesh 1978 I SCR 153
applied