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A.V. Rangam, for Intervener No. 1. FAC |
V.A. Seyid Muhammad, Advocate General, Kerala, B. R. L. Iyengar, A. G. Pudessery and M. R. K. K. Pillai for Intervener No. 2. FAC |
B. R. G. K. Achar, for intervener No. 3 The Judgment of SARKAR C.J. and MUDHOLKAR J. was delivered by SARKAR C.J. FAC |
The Judgment of BACHAWAT and SHELAT JJ. FAC |
was delivered by BACHAWAT J. HIDAYATULLAH J. delivered a dissenting Opinion. FAC |
Sarkar, C.J. FAC |
On a complaint of trespass the police registered a case against the respondents under section 447 of the Penal Code. FAC |
The respondents were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police. FAC |
The case against the respondents was thereafter put up before the Nyaya Panchayat, a court established under the Madhya Bharat Panchayat Act, 1949. FAC |
In , 'hat court, fresh bonds were executed by sureties on behalf of the respondents to ensure their presence during the trial. FAC |
The Nyaya Panchayat, after trial, convicted and sentenced the respondents to a fine of Rs. 75 each. RLC |
The conviction was upheld by the Additional Sessions Judge, Barwani. RLC |
The respondents then moved the High Court of Madhya Pradesh in revision which set aside the conviction. FAC |
Hence the present appeal. FAC |
Section 63 of the Panchayat Act provides that no legal prac titioner shall appear on behalf of or shall plead for or defend any party in any dispute, case or proceeding pending before the Nyaya Panchayat. STA |
The High Court observed that in view of the provisions of article 22(1) of the Constitution, the section was void in respect of persons who were arrested. RLC |
As the respondents had been arrested, it set aside their conviction. RLC |
The question in this appeal is, whether the section violated article 22(1). Ratio |
That provision has to be considered along with article 21 of the Constitution and both are set out below: "article 21.No person shall be deprived of his life or personal liberty except according to procedure established by law. STA |
article 22(1).No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. STA |
It seems to us fairly clear that a person arrested has the constitutional right to consult a legal practitioner concerning 242 his arrest. Ratio |
It is also clear that a person arrested has the constitutional right to be defended by a legal practitioner. Ratio |
But, against what is he to be defended? Ratio |
We think that the right to be defended by a legal practitioner would include a right to take steps through a legal practitioner for release from the arrest. Ratio |
Now, section 63 of the Act puts no ban on either of these rights. Ratio |
It cannot be said to be invalid as denying these rights. Ratio |
We may add that the Act is not concerned with arrest and gives no power to arrest. Ratio |
But, is the right to be defended by a legal practitioner conferred only on a person arrested? We do not think so. Ratio |
In our opinion, the right to be defended by a legal practitioner extends also to a case of defence in a trial which may result in the loss of personal liberty. Ratio |
On the other hand, in our view, where a person is subjected to 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 to defend himself at the trial by a legal practitioner. Ratio |
The reason is that articles 21 and 22 of the Constitution are concerned only with giving protection to personal liberty. Ratio |
That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution. Ratio |
That also appears to be the view which has been taken by this Court. Ratio |
Thus in State of Bombay vs Atma Ram Sridhar Vaidya(1) Das, J. (as he then was) observed: ". . . the implication of that article (article 2 1) was that a person could be deprived of his life or personal liberty provided such deprivation was brought about in accordance with procedure enacted by the appropriate Legislatur... |
Having so provided in article 21, the framers of our Constitution proceeded to Jay down certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived of his life o... |
Those requirements are set forth in article 22 of the Constitution." PRE |
It would follow that the requirement laid down in article 22(1) is not a constitutional necessity in any enactment which does not affect life or personal liberty. Ratio |
Now we find that the Act expressly provides that the Nyaya Panchayat cannot inflict a sentence of imprisonment, not even one in default of payment of fine which it is authorised to impose. Ratio |
We also find that the Act does not give any power of arrest. Ratio |
The case against the respondents was one in which in the first instance a summons and not a war. ant could issue and therefore no arrest was inevitably necessary. Ratio |
The arrest, if any that could (1). [1915]1 S.O.R. 167,204.243 be made if a warrant came to be issued, would have been under the Code of Criminal Procedure and not the Panchayat Act. Ratio |
The Act, does not lay down any procedure or law entailing or justifying an order depriving a person of his personal liberty. Ratio |
For such a law the procedural requirement in article 22(1) is not a constitutional necessity. Ratio |
The Act does not violate article 22(1) and cannot be held to be invalid on that ground. Ratio |
It is true that in this case the respondents had been arrested but they had been arrested not under the Act but under section 54(1) of the Code of Criminal Procedure, the offence being cognizable. Ratio |
A cognizable offence when tried by any of the courts created by the Code is punishable with imprisonment. Ratio |
But the Code by section 340 entitles an accused person to be defended by a lawyer. Ratio |
We are however not concerned in this case with a trial by a court created by the Code. Ratio |
The question in this appeal is, whether the Panchayat Act is invalid. Ratio |
The Act does not deprive any arrested person of his constitutional right to take steps against the arrest or to defend himself in a trial which might occasion the loss of his personal liberty. Ratio |
It takes away no constitutional right at all. Ratio |
Can the fact that the respondents were arrested under an other law and thereafter tried under the Act give them the constitutional right to be defended at the trial by a legal practitioner? We do not think so. Ratio |
We think it clear that it cannot be said that the fact of arrest gives the arrested man the constitutional right to defend himself in all actions brought against him. PRE |
Take the case of these respondents. Ratio |
Suppose that after the arrest an action was started against them for recovery of damages for wrongful trespass. Ratio |
Could they say that in view of article 22(1) they had a constitutional right to appear by a legal practitioner in that action? Ratio |
Could they say that if the law under which the trial was held denied the right to be represented by a legal practitioner. Ratio |
it was invalid as offending article 22(1)? Ratio |
We suppose the answer must plainly be in the negative. Ratio |
It would follow that it is not the fact of the arrest itself that gives the right to be defended by a lawyer in all matters. Ratio |
We may put the matter from a different point of view. Ratio |
Assume a case in which a law creating an offence provides that on conviction a person shall be sentenced to a certain term of imprisonment but states that it shall not be necessary to arrest the person accused of that offence before he is put up for his trial. Ratio |
We should suppose that in such a case the person would be entitled to the constitutional right of being defended at the trial by a legal practitioner and any provision that denies that right to him would be void as violating article 22(1). Ratio |
We think this would be in consonance with the decision of this Court in Atma Ram Sridhar Vaidya 's case(1). Ratio |
We do not think that the Constitu (1) ; 244 tion could have intended that a person who ran the risk of loss of personal liberty as a result of a trial, would not have the right to defend himself by a legal practitioner at the trial because he had not been arrested. Ratio |
There would be no principle to support such a view. Ratio |
Likewise, we do not think that the Constitution makers intended that a person arrested would have the right to be defended by a legal practitioner at a trial which would not result in the deprivation of his personal liberty. Ratio |
He, of course, had the right to seek relief against the arrest through a legal practitioner. Ratio |
We would interpret the words "nor shall he" in article 22 as not being confined to a person who has been presently arrested but also as including a person who though not arrested runs the risk of loss of personal liberty. Ratio |
It seems to us that we would thereby be carrying out the spirit of the Constitution. Ratio |
The question before us is, whether the Nyaya Panchayat Act is void as offending article 22(1) because it contains section 63. Ratio |
In our view, it is not void because it does not give any power to deprive anyone of his personal liberty either by way of arrest before the trial or by way of a sentence of imprisonment as a result of the trial. Ratio |
It would appear that the High Court took the same view when it said that the section was void "in the case of persons arrested". Ratio |
In our opinion, the High Court was in error. Ratio |
The validity of an Act cannot depend on the facts of a case but on its terms. Ratio |
The fact that the respondents were arrested under another statute, cannot, in our opinion make the Act void. Ratio |
A question was mooted at the Bar that since at the trial the respondents were not under arrest having been released on execution of bonds, they were no longer entitled to the constitutional right conferred by article 22(1). Ratio |
As at present advised, we are not inclined to accede to this view. Ratio |
We consider it unnecessary to pursue this matter further in the present case. Ratio |
For the reasons earlier stated, in our view, the Act is per fectly valid. Ratio |
No question therefore arises of the conviction being bad on the ground that the Act was invalid. Ratio |
In our view, the High Court was in error in setting aside the conviction. Ratio |
We would, therefore, allow the appeal, set aside the judg ment of the High Court and restore that of the courts below it. RPC |
Hidayatullah, J. RPC |
In my opinion this appeal should fail. Ratio |
The short question in this appeal is whether section 63 of the Madhya Bharat Panchayat Act is inapplicable to criminal trials owing to its inconsistency with article 22(1) of the Constitution. Ratio |
The Panchayat Act was passed on June 17, 1949 and under its provisions the Nyaya Panchayats are empowered to try certain offences including the offence of criminal trespass punishable under section 447, Indian Penal Code. Ratio |
The Act, however, places a limitation on the powers of these courts by enacting that they can impose a sentence 245 of fine but not imprisonment. Ratio |
The respondents were arrested by the Police without a warrant from a Magistrate, for an alleged offence under section 447, Indian Penal Code and were released on bail. FAC |
After investigation the case was sent for trial before the Nyaya Panchayat, Barwani. FAC |
Fresh bail bonds were obtained from them by the Nyaya Panchayat. FAC |
The respondents were fined Rs. 75 each but no sentence of imprisonment in lieu of fine was imposed on them. FAC |
The respondents were not defended by a lawyer at the trial pre sumably because of section 63 of the Act which reads: "No legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute, case or proceedings pending before the Nyaya Panchayat". FAC |
The respondents filed an application for revision before the Additional Sessions Judge, Barwani but were unsuccessful. FAC |
They then filed a second application for revision in the High Court of Madhya Pradesh and inter alia contended that the trial was vitiated because they were deprived of their right to be defended by counsel guaranteed under article 22(1) of the Constitution. FAC |
They also submitted that section 63 of the Act was rendered void by reason of article 13 in view of its inconsistency with this guaranteed right. FAC |
A learned single Judge of the High Court referred the second point for con sideration by a larger Bench but the Divisional Court declined to consider it because, in its opinion, the decision of this Court in the State of Punjab vs Ajaib Singh and Anr.(1) had distinctly laid down that article 22(1) was not applicable to... |
The case was remitted to the learned single Judge who, by the order under appeal, July 9, 1964 allowed the application for revision holding that the trial was vitiated as the respondents were deprived of their fundamental right to be defended by a counsel of their choice. FAC |
He accordingly set aside their conviction but did not record an acquittal. FAC |
The question thus arises whether section 63 of the Panchayat Act (in the setting of the powers of the Nyaya Panchayat) can be said to offend article 22(1) and for that reason to be void in so far as it takes away the right of a person who is arrested to be defended by a legal practitioner of his choice in a trial befor... |
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