Surendra Kumar Vs. State of Rajasthan - Court Judgment |
| Criminal |
| Supreme Court of India |
| Feb-07-1979 |
| Criminal Appeal No. 236 of 1974 |
| A.D. Koshal and; S. Murtaza Fazal Ali, JJ. |
| AIR1979SC1048; 1979CriLJ907; (1979)4SCC718; 1979(11)LC502(SC) |
| Code of Criminal Procedure (CrPC) - Sections 360; Indian Penal Code (IPC) - Sections 27 and 411 |
| Surendra Kumar |
| State of Rajasthan |
.....his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty. the fact that the respondents were arrested under another statute, namely, the criminal procedure code cannot make either the section or the act void. [242 g-h; 243 c-d; 244 d-e] state of bombay v. atma ram sridhar vaidya, [1951] s.c.r. 167..204, followed. quaere:...whether respondents were not entitled to the constitutional right because, at the trial they were on bail. [244 e] per bachawat and shelat jj.: section 63 of the act is violative of art. 22(1) and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial for the crime for which he is arrested. but, the order of the high court, quashing the conviction, should be set aside, because, the respondents did not claim that they should be defended at the trial by counsel, and the circumstances of the case, the existence of s. 63 on the statute book did not cause them any prejudice. [257 g; 258 b-c] as soon as the respondents were arrested without warrants issued by a court, they acquired the rights..........the high court that there was no prime facia case for admitting the appeal before the high court. the appeal is clearly concluded by findings of fact. mr soni tried best to argue that there was no evidence to prove the identity of the articles stolen nor was there any relevant evidence to show that the recovery statement made by the accused under section 27 could be relied upon. these are essentially questions of fact and two courts of fact have clearly and the high court impliedly upheld this finding of fact and have found that the prosecution has proved the identity of the property and that the confession made under section 27 was true and voluntary. 2. it was then submitted that the appellant was below the age of 21 years at the time when the offence is alleged to have been committed, therefore, be should be given the benefit of section 360, criminal procedure code which is mandatory where as offence is punishable with fine or with imprisonment with a term of seven years or less. the case of the appellant undoubtedly falls within the four corners of section 360. in these circumstances, therefore, the sentence of imprisonment is directed to be suspended and the appellant is.....
S. Murtaza Fazal Ali, J.
1. In this appeal by special leave the appellant has been convicted under Section 411 IPC and sentenced to six months rigorous imprisonment and a fine of Rs. 500/-, In default two months rigorous imprisonment. We have gone through the judgment of the Sessions Judge and also of the trial Magistrate and we agree with the High Court that there was no prime facia case for admitting the appeal before the High Court. The appeal is clearly concluded by findings of fact. Mr Soni tried best to argue that there was no evidence to prove the identity of the articles stolen nor was there any relevant evidence to show that the recovery statement made by the accused under Section 27 could be relied upon. These are essentially questions of fact and two courts of fact have clearly and the High Court impliedly upheld this finding of fact and have found that the prosecution has proved the identity of the property and that the confession made Under Section 27 was true and voluntary.
2. It was then submitted that the appellant was below the age of 21 years at the time when the offence is alleged to have been committed, therefore, be should be given the benefit of Section 360, Criminal Procedure Code which is mandatory where as offence is punishable with fine or with imprisonment with a term of seven years or less. The case of the appellant undoubtedly falls within the four corners of Section 360. In these circumstances, therefore, the sentence of imprisonment is directed to be suspended and the appellant is released on probation & will execute a personal bond of Rs. 2, 000/-to maintain good behavior for a period of two years. In case the appellant violates the conditions of the bond he will be called upon to receive the sentence. With this modification, the appeal is dismissed.