Hiralal Gopilal Rathore Vs M.P. State and Another

@JUDGMENTTAG-ORDER

K.L. Shrivastava, J.@mdashThis order shall also govern the disposal of Miscellaneous Criminal Case No. 1880 of 1986 (Mehmmood Khan v. State of M.P. and Anr.). Both these cases arise out of applications u/s 482 of the Cr. P.C., 1973 (for short, ''the Code'') and involve common questions.

2. The petition in Misc. Criminal Case No. 1506 of 1987 by Hiralal is directed against the revisional order dated 23-1-1987 passed by the Sessions Judge, Indore in Criminal Revision No. 115 of 1987, whereby the petitioner''s conviction u/s 3/7 of the M.P. Rajya Sadak Parivahan Sewa (Bina Ticket Yatra Ki Rok) Adhiniyam, 1974 and the sentence of fine of Rs. 200/- (therein recorded by the Judicial Magistrate, First Class, Indore in summary trial, have been maintained.

3. Circumstances giving rise to the petition are these : Traffic Superintendent of the Flying Squad of the Madhya Pradesh State Road Transport Corporation, Bhopal, at 10.55 a.m., on 4-7-86, checked the bus bearing registration No. CPF 9128 near Mhow when it was on its way to Dhar. He found that the petitioner was the conductor in the bus and he had collected fare to the tune of Rs. 17/- from the passengers and despite having covered a distance of 10 Kilometres he had not issued tickets to them. He, therefore, filed a complaint before the Special Magistrate, who was holding mobile Court.

4. On his plea of guilty, the petitioner was convicted and sentenced by the learned Magistrate. The petitioner made a revision petition to the Sessions Judge, Indore, who negatived the various contentions by the petitioner''s learned Counsel and ultimately, dismissed the revision petition. It may be stated here that in his order, the learned Sessions Judge has wrongly referred to the revision petition as appeal. It may be pointed out that though, as provided u/s 375 of the Code, despite the plea of guilty by the petitioner, an appeal lay regarding the extent or legality of the sentence but in the instant case in view of the provisions in Section 376(d) of the Code, as the only sentence of fine passed by the Judicial Magistrate First Class did not exceed Rs. 200/-, appeal was expressly barred

5. In the other petition by Mehmood Khan, another conductor in the employment of the M.P. State Road Transport Corporation, his bus was checked on 18-10-85 and he too was found to have committed an offence under the same penal provision and on his plea of guilty was convicted by t he Judicial Magistrate First Class, Indore, in a summary trial and was sentenced to pay a fine of Rs. 100/-. The revision petition preferred by him was also dismissed.

6. The contention of the learned Counsel for the petitioners in this Court, amongst others, is that under Article 21 of the Constitution, as interpreted in the decision in Suk Das Vs. Union Territory of Arunachal Pradesh, , the petitioner''s had a fundamental right to free legal service and the learned Magistrate was under an obligation towards them to inform them regarding the availability of such aid at State cost and as this was not done, there has been violation of their fundamental right and the trials held against them are vitiated due to fatal constitutional infirmity. On behalf of the non-applicants, it has been contended that as the petitioners pleaded guilty, the applicability by the observations made in Suk Das'' case (supra) was not at all attracted.

7. The point for consideration is whether the petitions deserve to be allowed.

8. Article 21 of the Constitution of India reads thus:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , which relates to under-trial prisoners, with reference to Article 21 of the Constitution of India, it has been held that no procedure, which does not ensure a reasonably quick trial, can be regarded as a ''reasonable, fair or just'' and it would fall foul of Articles 21. In Bijoe Emmanuel and Others Vs. State of Kerala and Others, , it has been held that the consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right. At this stage, reference may be made to the observations made by the Supreme Court in paragraph 5 of the decision in Suk Das Vs. Union Territory of Arunachal Pradesh, :

It is now well established as a result of the decision of this Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, that ''the right to free legal service is...clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held to be constitutional right of every accused person, who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided, of course, the accused person does not object to the provision of such lawyer.'' This Court pointed out that it is an essential ingredient of reasonable, fair and just procedure to a prisoner, who is to seek his liberation through the Court''s process that he should have legal service available to him. The same view was taken by a Bench of this Court earlier in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, . It may, therefore, now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence, which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be ,, recognized that there may be cases involving offences, such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. There can, in the circumstances, be no doubt that the appellants were entitled to free legal assistance at State cost when they were placed in peril of their personal liberty by reason of being accused of an of fence, which if proved, would clearly entail imprisonment for a term of two years.

The offence in question provides for imprisonment or fine. It may also be pointed out that even where the sentence provided is one of fine only, it carries with it the consequences of imprisonment in case the accused fails to pay the fine. This aspect of the matter has been adverted to in the decision in Ishar Das Vs. The State of Punjab, in dealing with the scope of Section 6 of the Probation of Offenders Act, 1958. Therein, it has been held that as the object of the aforesaid Act is to avoid imprisonment of the person covered by the provisions thereof, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine.

9. The non-applicants'' contention that no question of legal assistance at State cost can crop up in a private complaint case ignores that under Article 21, the State owes the duty to every citizen and this duty is irrespective of the fact whether the peril to which the citizen is exposed has been occasioned by the State itself or by any other person.

10. The next contention is that as the petitioners had made no request for engaging a lawyer, there was no question of providing legal aid for them. True it is that the decision in Ram Sarup Vs. The Union of India (UOI) and Another, , which pertains to Article 22(1) of the Constitution, lays down that unless the accused makes a request to the Court to be defended by a lawyer of his own choice, there can be no question of denial of his right guaranteed under that Article. In Mattulal Vs. Radhe Lal, with reference to Article 141 of the Constitution, it has been pointed out that decision of larger Bench prevails, the decision in Ram Sarup''s case (supra) is no doubt by a larger Bench but it cannot be held that it militates against the interpretation of the earlier Article 21 and the obligation thereunder cast on the Judicial Officer by the Supreme Court in Suk Das Vs. Union Territory of Arunachal Pradesh, in the true spirit of the constitutional concern for the poor. In paragraph 6 of the decision pointing out that even literate people do not know what are their rights and entitlements under the law, it was observed as under:

It would, in these circumstances, make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service, Legal aid would become merely a paper promise and it would fail of its purpose. This is the reason why in Khatri and Others Vs. State of Bihar and Others, we ruled that the Magistrate or the Sessions Judge, before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the service of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

From the observations extracted above, it is clear that the obligation on the part of the Presiding Officers to inform the accused of his fundamental right of free legal assistance at State cost in case he is unable to engage the service of a lawyer on account of poverty or indigence, is absolute and is not conditioned upon the accused himself applying for such legal assistance.

11. In the aforesaid decision in Suk Das Vs. Union Territory of Arunachal Pradesh, , the Supreme Court had further directed that no fresh trial shall be held against the accused persons.

12. It is also true that in the Courts below, it has not been the case of the petitioners that being indigent, they could not arrange for legal assistance. But as pointed out in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, , there is no estoppel against fundamental right.

13. Shri Dhupar''s next contention is that the observations in the decision in Suk Das''s case (supra) are not attracted as in each of the cases in hand in the summary trials which as provided u/s 262 of the Code, were by the procedure specified for the trial of summons case, the petitioners when brought before the Magistrate, on particulars of the offence having been stated to them had pleaded guilty and the learned Magistrate, in exercise of his discretion u/s 253 of the Code, had convicted him on that plea of guilty and there was no occasion for any trial requiring legal assistance.

14. In support of his aforesaid submission, Shri Dhupar has invited my attention to the decision in Kisan Trimbak Kothula and Others Vs. State of Maharashtra, , wherein it has been observed that once a person pleads guilty and the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large family.

15. The contention aforesaid is also without merit. It is true that in the trial of summons case, the Magistrate is required u/s 251 of the Code, after stating the particulars of the offence to the accused to ask him "whether he pleads guilty or has any defence to make...." whereas in the trial of warrant case, Section 240(2) of the Code requires t hat the accused has to be asked "whether he pleads guilty of the offence charged or claims to be tried" but it cannot be held that the Magistrate was under no obligation to inform the petitioner that if he is unable to engage the service of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

16. In the decision in Gulabchand''s case AIR 1951 Madh Bha 1 (FB) it has been pointed out that the trial presupposes the idea of offence but inquiry may relate to matters, which are not offences. Words, as rightly pointed out, are the skin of living thoughts and must take their colour from the context in which they are used. In the decision in The State of Bihar Vs. Ram Naresh Pandey, , it has been pointed out that the words ''tried'' and ''trial'' have no universal meaning and though in a sense have reference to a stage after the inquiry, they should not be limited in their connotation when used in a different context. According to the decision, they must be considered with regard to the scheme and purpose of the provision under consideration. In the decision in AIR 1943 36 (Nagpur) , it has been pointed out that trial in a warrant and sessions case begins with framing of charge and in summons case, when accused is brought before the Magistrate. The word ''trial'' as used in Suk Das Vs. Union Territory of Arunachal Pradesh, in interpreting Article 21 of the Constitution, has to be suitably construed in keeping with the spirit of Article 21. In the context in which it has been used it has to be interpreted as covering the stage when the presiding officer of the court calls upon the accused to have his say touching the accusation levelled against him. This really is the moment when the accused is face to face with the peril of his personal liberty adverted to in Suk Das''s case (supra). To interpret the word ''trial'' as taking within its compass only the stage subsequent to the plea is to virtually deprive the accused of his fundamental right and would be like locking stable door after the horse is stolen. What guarantee is there that the ''plea of guilty'' did not proceed from ignorance of the fundamental right of free legal assistance at State cost guaranteed under Article 21?

17. The last contention of Shri Dhupar, learned Counsel for the non-applicant 2 is that the the decision in Suk Das''s case (supra) itself, in case of certain offences, carves out exceptions to the right of free legal assistance at State cost and the offence in question comes under the exceptions. The contention is wholly without merit. It is no doubt true that despite the presumptive innocence of an accused in a criminal trial, in interpreting his right under Article 21 of the Constitution, it has been held that in economic and some other offences, he is not entitled to free legal assistance at State cost, but it is fallacious economic offences contemplated in Suk Das''s case (supra) which are only those under the Customs Act and the like, which adversely affect the national economy. Clue to the ambit of the expression ''economic offences'' may be had from the Economic Offences (Inapplicability of Limitation) Act, 1974. In this very connection, the decision in Jasodabai''s case 1980 Jab LJ 388 may also be usefully perused.

18. On a careful consideration, I find that a clear case or contravention of the fundamental right under Article 21 of the Constitution has been made out.

19. As the petitions can be disposed of on the ground relating to Article 21 of the Constitution, it is not necessary to go into the merits of the petitioners'' other contentions.

20. For the foregoing reasons, the petitions are allowed. The conviction and sentence of each of the petitioners are both set aside. The cases are remanded to the trial court for disposal according to law with due advertence to the decision in Suk Das Vs. Union Territory of Arunachal Pradesh, .