Surendra Kumar Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal - probation - section 360 of criminal procedure code, 1973, probation of offenders act, 1958 and sections 27 and 411 of indian penal code, 1860 - appellant was convicted under section 411 - court found no prima facie case for admitting appeal - prosecution had proved identity of property - confession made under section 27 was true and voluntary - appellant was below 21 years of age at time of committal of offence therefore entitled to benefit under section 360 - court directed to suspend sentence of imprisonment - appellant was released on probation after execution of bond to maintain good behavior. - [a.k. sarkar, c.j.,; j.m. shelat,; j.r. mudholkar,; m. hidayatullah, jj.] the respondents were arrested by the police for the offence of trespass and were released on bail. they were tried and sentenced to pay a fine by the nyaya panchayat, a court established under the madhya bharat panchayat act, 1949, with powers to impose only a sentence of fine. the conviction was set aside by the high court on the ground that s. 63 of the act, which provides that no legal practi- tioner shall appear on behalf of any party in a proceeding before the nyaya panchayat, violated art. 22(1) of the constitution and was therefore void. held:(per sarkar c.j., and mudholkar, j.): the high court was in error in setting aside the conviction. under art. 22(1) a person arrested has the constitutional right to consult a legal practitioner concerning his arrest; and, a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. but in a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right, because, the article is concerned only with giving protection to personal liberty. [241 h-242 c, 244 b-c]. the act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial; nor does it deprive an arrested person of 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 guaranteed by art. 22(1), and they continued to have those rights though they were released on bail at the time of trial. the rights include the right to be defended even in a trial in which they were in jeopardy of only being sentenced to a fine. because, the pronoun "he" in the second part of art. 22(1) refers to "any person who is arrested'-. if in the exercise of the general powers under the criminal procedure code, the police arrest a person on the accusation of a crime for which he is liable to be tried before a special criminal court, the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal court in respect of the offence for which he was arrested. even if the word "he" means "any person" there is no warrant for giving a restricted interpretation and limiting the right to be defended by counsel to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment. [256 a-d, f-g; 257 a- b] state of punjab v. ajaib singh, [1953] s.c.r. 254, referred to. quaere:whether the tests of an arrest" laid down in ajaib singh's case are exhaustive. [257 c]. per hidayatullah j. (dissenting): the appeal should be dismissed. under art. 22, a person who is arrested for whatever reason, gets three independent rights. the first is the right to be told the reasons for the arrest as soon as an arrest is made, the second is the right to be produced before a magistrate within 24 hours and the third is the right to be defended by an advocate of his choice. when the constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law, and. it is not sufficient to say that the accused who was so deprived, of the right, did not stand in danger of losing his personal liberty. the words "nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice," in art. 22(1), refer to a person who is arrested. personal liberty is invaded by arrest and continues to be restrained during the, period a person is on bail and, it is not sufficient to say that the accused who was so deprived prisonment. before his release on bail he defends himself against his arrest and the charge for which he is arrested, and after his release on bail, against the charge he is to answer and for answering which, the bail requires him to be present. therefore. s. 63 of the act, being inconsistent with the article, is void. though the contention was raised for the first time in the high court, since it is a question of fundamental right it must be upheld. [248 h; 249 d-f; 251 a-b, f-h; 252 b]. state of punjab v. aiaib singh. [1953] s.c.r. 254 and state of uttar pradesh v. abdul samad [1962]. s.c.r. 915. referred to. - 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, 000/-to maintain good behavior for a period of two years.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.