judgement:
CIVIL Appeal No 2475 of 1968.
From the Judgment and order dt.
5 7 67 of the Bombay High Court (Nagpur Bench) in S.C.A. No. 893 of 1965 T. section Desai and M. N. Shroff for the Appellants section V. Deshpande and section Balakrishnan for the Respondent Nos. 1 6 and 8 20 A. G Ratnaparkhi for the Respondent 7(i) and 7(ii) The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate granted under Article 133(1)(c) of the Constitution by the High Court of Judicature at Bombay (Nagpur Bench) which is directed against its judgment and order dated July 5, 1967 in Special Civil Application 165 No. 893 of 1965 raises an important question of law as to the right A of the State to levy and collect water charges from the respondents under the Central Provinces Irrigation Act, 1931 (Act No. IlI of 1931) for appropriation for irrigation purposes of water from Navegaon Bandh Tank in Tehsil Sakoli, District Bhandara.
The facts giving rise to this appeal are: As already.
indicated, there is in village Navegaon, Tehsil Sakoli, District Bhandara, which formed part of the erstwhile State of Madhya Pradesh, a very large reservoir of water called Navegaon Bandh Tank which is said to have been constructed some 300 years ago by one Kawdu Patel.
The tank which is over an area of Land admeasuring nearly 3200 acres has, since the time of its construction, been the main source of supply of water to the rice and sugarcane growing areas of five villages viz, Mouza Navegaon, Deolgaon, Mungli, Yerandi and Kholi comprising about 2688 acres of land which is held partly by the quondam Malguzars including respondents 1 to 8 and partly by the tenants including respondents 9 to 20.
The said tank came to vest in the State under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 195() (Act No. 1 of 1951).
In May, 1965, the State Government called upon the respondents who are ex proprietors and occupancy tenants to execute agreements in writing undertaking to pay Rs. 7/ per acre for rice and Rs. 45/ per acre for sugarcane irrigation as charges for the use of water from the Navegaon Bandh Tank.
The respondents thereupon brought the aforesaid writ petition challenging the levy by the State of the said charges as well as its demand for execution of the aforesaid agreements and seeking the issue of twin writs viz (1) of prohibition forbidding the appellants from` insisting on the respondents to execute agreements in the State 's favour for payment of water charges for irrigating their lands and (2) of Mandamus directing the appellants to allow free irrigation of their fields from Navegaon Bandh Tank.
The case of the respondents was that the right of taking water for irrigation purposes free of charge from the said tank had been enjoyed by the holders of land from generation to generation for the last 300 years with the only obligation of keeping the tank in proper repairs; that the tank was the Property of the descendants of the said Kawdu Patel who were recognised as Malguzars of all The aforesaid five villages; that the right of the aforesaid holders of land or appropriating water of the tank was recognised and recorded in the Wajib ul Arz whereunder an obligation was cast on the Malguzars to allow the tenants to irrigate free of charge their lands for rice 166 (dhan) and sugarcane cultivation; that the Malguzars as well as the tenants had thus been using the water of the tank for irrigating their fields and raising crops as of right without any payment either to the State or to any one also; that in the year, 1950, the Madhya Pradesh Legislature passed an Act called "the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1980 (Act No. I of 1981)" (hereinafter referred to as 'the Abolition of Proprietary Rights Act ' with a view to eliminate the intermediaries (variously called as Malguzars, Zamindars and Jagirdars) between the State and the tillers of the soil and to acquire from a specified date for the purpose of the State free of all encumbrances the rights of properties in estates, mahals, alienated villages and alienated lands comprised in a notified area in Madhya Pradesh; that in the Notification issued under section 3 of the Abolition of Proprietary Rights Act, the area vesting in the State was shown as the whole area of the aforesaid villages and the Mahals or Estates comprised therein; that thus the State was substituted in place of Malguzars with the same rights and liabilities; that the only consequence of vesting according to section 4 of the Abolition of Proprietary Rights Act was to do away with the encumbrances of mortgages, if any, on proprietary lands and to fasten the same on the amount of compensation payable by the State to the proprietors; that the said vesting which took place as a result of the abolition of Proprietary Rights Act and the Notification issued thereunder did not affect, curtail or extinguish the aforesaid rights of free irrigation of the holders of land in the aforesaid five villages i.e., of the Malguzars who were cultivating their home farm lands or of other persons who were in occupation of lands as occupancy tenants at the time of the coming into force or the Abolition of Proprietary Rights Act and on the contrary, sections 45 46 and 47 of the Abolition of Proprietary Rights Act preserved those rights; that the right to free irrigation was recognised and recorded at various settlements and in the Wajib ul Arz of 1919; that notwithstanding the enactment and enforcement of the Abolition of Proprietary Rights Act, the State continued upto 1964 to recognise The respondents ' right of taking water free of charge for irrigation purposes from the aforesaid tank which had been enjoyed by the respondents and their ancestors for the last 300 years and never made any demand on account of water charges; that the respondents were entitled to take water from the aforesaid tank for such lands as it had been irrigated as per entries in the Wajib ul Arz which is an authentic record of rights of the cultivators of the villages in question; that in November, l 965, the officials of the State Government in charge of the Irrigation Department by reference to section 26 of 167 the Central Provinces Irrigation Act, 1931, which had no relevance.
A declined to allow the respondents to take water from the aforesaid tank unless they executed the aforesaid agreements and that the action of the State Government and its officials was without any legal authority and encroached upon their fundamental rights.
In the return filed by them in opposition to the writ petition`, the appellants while admitting that the tenants as well as the proprietors could avail of the right of irrigating their paddy lands on condition that they would maintain the Navegaon Bandh Tank in proper repairs and keep the irrigation channels clear from obstruction and sediment inter alia maintained that on and from the 31st of March? 1951 the date specified in the Notification No. 627 XII dated 27th January, 1951 issued under section 3 of the Abolition of Proprietary Rights Act all rights, title and interest vesting in the quondam proprietors in the notified area including lands, tanks etc.
which were not their private property ceased and stood vested in the State free of all encumbrances; that consequently, the right of the outgoing proprietors and tenants of free use for the aforesaid irrigation purposes of water of Navegaon Bandh Tank (which was held by ex Malguzars, not as their private property but as proprietors) was extinguished and the State became competent to impose the water charges on persons taking water from Navegaon Bandh Tank more so when on finding that though for many years, the proprietors as well as the tenants had been taking advantage of the irrigation facilities, they had all along been neglecting to keep the said tank and irrigation channels in proper repairs (which was an essential condition for enjoyment of the right of irrigation), it had, for ensuring proper irrigation facilities, to recondition the tank as well as the water channels (which have a water spread of 2688 acres of land) at an expense of about 22.76 lakhs of rupees; that sections 45, 46 and 47 of the Abolition of the Proprietary Rights Act have no relevance as they had been repeal ed by section 238 of the Madhya Pradesh Land Revenue Code read with Schedule III thereto and that such of the respondents as were proprietors had, after the coming into force of the Abolition of Proprietary Rights Act, accepted and withdrawn without any reservation the compensation determined by the Compensation officer in respect of the proprietary rights over lands and, tanks etc.
including the Navegaon Bandh Tank which is comprised in the notified area resulting in the vesting of the said Tank in the State free of all encumbrances including the obligation to supply water free of charge to the respondents as well as of all restrictions on Government 's right to renovate the tank.
On a consideration of material existing on the record, the High Court allowed the writ petition holding that the right to appropriate water free of charge was a customary right which was preserved and was not destroyed either by the Abolition of Proprietary Rights Act or by the 168 Madhya Pradesh Land Revenue Code and that the State was not competent to levy any water charges under the Central Provinces Irrigation Act, 1931.
At the hearing of the appeal the learned for counsel for the appellants urged that the relevant provisions of the Abolition of Proprietary Right Act have been wrongly construed by the High Court; that under section 4 of the Abolition of Proprietary Rights Act, all the rights title and interest of the erstwhile proprietors in the lands and tanks comprised in the notified area vested in the State on and from the date specified in the Notification issued under section 3 of the Act viz. from 31 st March 1951 with the result that the respondents could not claim the right of free irrigation after such vesting; that the original right of free irrigation from the talk was not saved by any provision of the Abolition of proprietary Rights Act; that even assuming without admitting that the respondents ' right of free irrigation continued after 1950, it was finally destroyed by the Madhya Pradesh Land Revenue Code which came into force in 1953 and neither section 7 of the Madhya Pradesh General (clauses Act nor section 225 of the Madhya Pradesh Land Revenue Code saved the same; that the State was empowered under the provisions of the C.P. Irrigation Act, 1931 to recover charges for the supply of water for irrigation from the Navegaon Bandh Tank which had come to vest in it with effect from 31st March, 1951, and that in any event respondents 1 to 8 who were the original owners (ex proprietors) could not claim the right of free irrigation.
On the other hand, it is contended on behalf of the respondents that the right of irrigation from the tank in question evidenced by entries in the wajib ul arz is preserved and protected by sections 45 to 47 of the Abolition of Proprietary Rights Act; that tho protection far from being taken away subsequently is alleged by the appellants was preserved by the M.P. Land Revenue Code; that repeal by Schedule III to the MP.
Land Revenue Code of sections 45 to 47 of the Abolition of Proprietary Rights Act did not affect any vested right which accrued under the repealed provisions of the Abolition of the Proprietary Rights Act and accordingly the respondents ' right of appropriating the water of Navegaon Bandh Tank free of charge for irrigating their fields was not in any way affected by the aforesaid provisions of the M.P. Land Revenue Code; that the C.P. Irrigation Act, 1931 has no application to the instant case and that the case of respondents 1 to 8 as regards free irrigation stands on the same footing as that of respondents 9 to 20.
For a proper appreciation and determination of the points involved in the case, it is necessary to have a clear idea of the scheme of the Abolition of Proprietary Rights Act which as already stated was enacted to provide for the acquisition of the rights of proprietors in estates.
169 Mahals, alienated villages and alienated lands in Madhya Pradesh and A to make provision for other matters connected therewith.
Sub section (1) of section 3 of the Abolition of Proprietary Rights Act lays down that on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all circumstances.
This provision, as evident from its opening words has been expressly made subject to savings as provided in the Act.
The consequences ensuing from the beginning of the date specified in the notification which is made by the State Government under section 3(1) are set out in section 4(1) of the Abolition of Proprietary Rights Act which again is subject to exceptions provided in the Act.
One of such consequences is that all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazaars and meals; and in all subsoil, including rights, if any, in mines and minerals, whether being worked or not cease and vest in the State for purposes of the State free of all encumbrances and the mortgage debt or charge on any proprietary right becomes a charge on the amount on compensation payable for such proprietary right to the proprietor under the provisions of the Act.
Now as observed by this Court in Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh(1) that last part of clause (a) of section 4(1) of the Abolition of Proprietary F Rights Act indicates that mortgage debts and charges on the proprietary right are what are meant by the term encumbrances.
Subsection (2) of section 4 of the Abolition of Proprietary Rights Act which is in the nature of a non obstante provision says that notwithstanding anything contained in sub section (1), the proprietor shall continue to retain the possession of his home stead, home farm land,(2) and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948 49 but before the sate of vesting.
(1) ; (2) For the purposes of the present case "home farm land" as defined in section 2(g) means (i) land recorded as sir and khudkasht in the name of a proprietor in the annual papers for the year 1948 49, and(ii) land acquired by a proprietor by surrender from tenants after the year 1948 49 till the date of vesting.
12 520 SCI/78 170 Section 38(1) of the Abolition of Proprietary Rights Act which confers the rights of malik makbuza on proprietors provides thus: "38.
(1) Every proprietor who is divested of his proprietary rights in an estate or mahal shall, with effect from the date of vesting, be a malik makbuza of the home farm land in his possession.
" Section 39 (1) of the Abolition of Proprietary Rights Act lays down that where the proprietary rights held by a protected thekadar or other thekadar or a protected headman or by any other under tenure vast in the State under section 3, the Deputy Commissioner may reserve to such proprietor the rights of an occupancy tenant in the whole or part of the home farm land and shall determine the rent thereon Sub section (2) of section 39 of the Abolition of Proprietary Rights Act provides that any person becoming an occupancy tenant under sub section (1) shall be a tenant of the State.
Section 40 of the Abolition of Proprietary Rights Act which confers rights of a lessee on the proprietor in certain lands provides that any land not included in home farm but brought under cultivation by the proprietor after the agricultural year 1948 49 shall continue in the possession of such proprietor and shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.
Section 41 of the Abolition of Proprietary Rights Act lays down that except in such areas as the State Government may, by notification, exclude from the operation of this section, every absolute occupancy tenant who, at any time before the date of vesting or within six months the reform, or such further period as the State Government may from time to time notify pays to the State Government an amount equal to three times the annual rent for the time being payable by him for his holding and every occupancy tenant who likewise pays to the State Government an amount equal to ' four times such rent, shall, on and from the date of vesting or the date of such payment, which ever is later, be declared in the prescribed manner to be malik makgbuza of the land comprised in his holding.
Section 45, 46 and 47 of the Abolition of Proprietary Rights Act which are material for the purpose of this case may be conveniently reproduced at this stage.
These sections run thus: "45.
(1) Subject to the provisions of section 41, any person who immediately before the date of vesting was in possession of any holding as an absolute occupancy tenant or an occupancy tenant shall, on and from the date of vesting, 171 be deemed to be a tenant of the State and shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to immediately before the date of vesting.
(2) Any person holding land as village service land shall be deemed to be holding it from the State and shall be governed by the provisions contained in sections 42 to 48 of the Central Provinces Tenancy Act, 1920.
(3) Any person holding land other than sir land from the proprietor on favourable terms for service rendered by him shall from the date of vesting be declared to be an occupancy tenant of the State and the Deputy Commissioner shall fix the rent to be paid by him.
(4) The rent payable to tho State by such a tenant shall for the purpose of its recovery be rent within the meaning of clause (a) of section 225 of the Central Provinces Land Revenue Act, 1917.
Every person deemed or declared to be a malik makbuza under section 38 or section 41 and every other malik makbuza in a mahal shall be entitled to any right which a tenant has under the village wajib ul arz and any reference to a tenant in the wajib ul arz shall be deemed to include a reference to every such malik makbuza.
(1) The Deputy Commissioner shall, in regard to lands vesting in the State or remaining with the proprietor under this Act, ascertain in the prescribed manner the custom in respect of (a) the rights of persons resident in the estate or village or holding lands comprised in the mahal; (b) the rights to irrigation, right of way and other easements; (c) the rights to trees and to produce; (d) any other rights and customs which the State Government may direct to be recorded.
(2) The Deputy Commissioner shall record in the wajib ul arz, the customs so ascertained and if necessary modify any entries therein.
" The rules which the Deputy Commissioner is required to follow in ascertaining custom in relation to the rights mentioned in the above 172 noted section 47 appear to have been made vide Notification Np.
70 XXVIII dated 3rd March, 1951.
The said rules may also be re produced here for facility of reference: " 1.
(1) In the Central Provinces, excluding merged territories, the Deputy Commissioner shall issue a proclamation in Form A appended to these rules asking the villagers to apply by a specified date if they consider inadequate the existing customs recorded in the Village Administration Paper in respect of any heads specified in rule 2 or desire to have recorded therein any new custom under any head specified in rule 2.
(2) In the merged territories, the Deputy Commissioner shall issue a proclamation in Form appended to these rules asking the villagers to state by a specified date what customs in respect of the heads specified in rule 2 should be recorded in the Village Administration Paper.
Customs shall be ascertained under the following heads and due regard shall be had to the conditions entered in the Village Administration Paper, if any, and the objections urged by the residents of the village: Heads under which customs can be recorded.
(VIlI) Irrigation (IX) other water rights . . " A plain reading of section 45 reproduced above would show that the Abolition of Proprietary Rights Act could not affect the tenancy rights of absolute occupancy tenants and occupancy tenants created by the outgoing landlords.
On the contrary, it guaranteed the continuity of absolute occupancy tenants and occupancy tenants by clothing them with the status of tenants under the State and confer ring on them the same rights as were being enjoyed by them before the date of vesting.
The words "in the same rights" occurring in sub section (1) of section 45 are very significant.
They leave no room for doubt that the absolute occupancy tenants and occupancy tenants were to continue to enjoy the irrigation and other water rights which were enjoyed by them before the date of vesting.
Section 46 puts the Malik makbuza at par with the tenants in regard to customary rights under the wajib ul arz.
It ordains that every person deemed or declared to be a malik makbuza under sec 173 tion 38 or section 41 and every other malik makbuza in a mahal is A entitled to the same customary right as a tenant under the village wajib ul arz.
Section 47 emphasises the importance of custom in relation to the right to irrigation by making it imperative for the Deputy Commissioner to ascertain in accordance with the aforementioned rules and record in the village wajib ul arz the custom in respect of the right to irrigation and certain other rights in regard to the lands vesting in the State or remaining with the proprietor under the Abolition of Proprietary Rights Act.
It may be stated here that wajib ul arz which was prepared at the time of settlement under the C.P. Land Revenue Act, 1917 contained the following entries: "Term No. 13(2) of the Wajib ul arz of the year 19 20 of mouza Navegaon Bandh P.H. No. 35. 13.
Water of tank No. 883/1 is taken for irrigation to Villages Muza Mungli, Deolgaon, Yerandi and Kholi for Veblaf (?) of also and Sadshiv son of Istari of Mouza is entitled for Sugar Cane free of charge.
Term No. 18(2) of the Wajib ul arz: Water of tank No. 883/1 is taken free of rate for paddy irrigation both by the Malguzars and tenants.
Details are given in the Walit Parcha.
Water of this tank for one day and night is taken by Sitaram Patil for mahal No. 1 and Kanhu son of Sambhu Patil also takes one day and one night for Mahal No.
It is free to Malik Mukhiya only for Sugar Cane Irrigation.
" From the foregoing, it becomes crystal clear that the occupancy tenants and malik makbuza who were appropriating the water of Navegaon Bandh Tank for raising paddy and sugarcane crops before the date of vesting under the Abolition of Proprietary Rights Act were to continue to enjoy those rights without any let or hindrance even after the date of vesting.
Let us now proceed to determine whether there was any change in this position as a result of the enactment of the Madhya Pradesh Land Revenue Code, 1954 (hereinafter referred to as 'the Code ') which received the assent of the President on the 5th February, 1955 and was adapted and modified at first by the Bombay (Vidarbha Region) Adaptation of Laws (State and Concurrent Subjects) order, 174 1956 and later on by the Maharashtra Adaptation of Laws (State and Concurrent Subjects) order, 1960 because it has been contended by learned counsel for the appellants during the course of his submissions that with effect from 12th February, 1955 when the aforesaid assent accorded by the President to the Code was published in the Madhya Pradesh Gazette Extraordinary there was an automatic extinction of the aforesaid right of irrigation enjoyed by the occupancy tenants and malik makhuza in consequence of the repeal of sections 45 to 47 of the Abolition of Proprietary Rights Act by virtue of section 238 of the Code, read with Schedule III thereto.
The contention is, in our opinion, wholly untenable as it proceeds on a misconception of the true legal position and overlooks the provisions of section 239 of the Code which runs thus: 239.
ALL rules, assessments, appointments and transfers made, notifications and proclamations issued, authorities and powers conferred, farms and leases granted, records of rights and other records framed or Confirmed, rights acquired, liabilities incurred, times and places appointed, and other things done under any of the enactments hereby re pealed shall, so far as may be, be deemed to have been respectively made, issued, conferred, granted, framed, revised, confirmed, acquired, incurred, appointed and done under this Code.
" It is worthy of note that section 239 of the Code did not destroy the right of free irrigation enjoyed by the respondents.
On the contrary, it fully protected and preserved the same.
The words ` all rights acquired" occurring in the said section of the code are comprehensive enough to take in the irrigation and other rights acquired by the tenants and malik makbuza under sections 45 to 47 of the Abolition of Proprietary Rights Act which stood repealed by virtue of section 238 of the Code.
This view is in consonance with the decision of this Court in State of Punjab vs Mohar Singh(1) where it was held that the line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.
Examining the matter in the light of this principle, we have no doubt in our mind that the right of free irrigation which accrued to the occupancy tenants and malguzars under the aforesaid sections 45 to 47 of the Abolition of Proprietary Rigllts Act were not only not destroyed but were also saved by section 239 of the Code and are, therefore, to continue to be enjoyed by the occupancy tenants and malguzars without being, affected, curtailed (1) [1955]1 S.C.R. 893. 175 or whittled down in any manner despite the repeal of sections 45 to A 47 of the Abolition of Proprietary Rights Act by section 238 of the Code.
The last contention advanced by the learned counsel for the appellants that the Government was competent to recover water charges by virtue of the provisions contained in section 26 of the Central Provinces Irrigation Act, 1931 is also devoid of substance.
The said section, it would be noticed, vests in the Government all rights in the water or any river, natural stream or natural drainage channel, natural lake or other natural collection of water.
As in the instant case, it is clear not only from the averments of the respondents but also of the appellants themselves that the tank in question is not a natural lake, section 26 of the Central Provinces Irrigation Act, 1931 can be of no avail to the appellants and the water rights which could be acquired by custom as indicated in Harrop vs Hirst(1) and were in fact acquired by custom by the respondents in the instant case as shown above and were recognised and preserved both under the Abolition of Proprietary Rights Act and the Code cannot in any manner be interfered with by the appellants.
The importance attached to the need for recognition of the right to irrigation may also be gleaned from tax following observations made by Chief Justice Callaway in Allen vs Petrick (69 Mont, 373, 377, 379, 380, , 452, 453 (1924) : E "The appropriator does not own the water He has a right of ownership in its use only.
The use of water in Mautana is vital to the prosperity of our people.
Its use, even by an individual, to irrigate a farm, is so much a contributing factor to the welfare of the State that the people, in adopting the Constitution, declared it to be a public use.
For the foregoing reasons, we do not find any merit in this appeal which is dismissed with costs.
S.R. Appeal dismissed .

summary:
Respondents are the ex proprietors, and occupants of the agricultural lands within their Malguzari villages situated in Sakoli Tahsil of District Bhandara in Maharashtra State.
Since the construction of the reservoir called Navegaon Bandh by one Kawdu Patel three hundred years earlier, the holders or the lands including the respondents were enjoying the right of irrigation from generation to generation free of charge with the only obligation which is inherent in the right viz. putting the tank in proper repairs.
In the Wazib Ul Arz an obligation was put on the Malgluzars to allow the tenants to irrigate their fields for rice (dhan) and sugar cane cultivation free of charge.
The respondents, therefore, were using the water of this reservoir for irrigating their fields as of right without any payments a right acquired by them by custom, grant or agreement or by prescription, duly recorded in the Wazib ul Arz at the time of the various settlements and as recognised as such by the State Government till 1964 i.e. even after the said Tank came to vest in the State under Madhya Pradesh Act 1 of 1951.
Thereafter, the appellant purporting to act under the Central Provinces Irrigation Act, 1931 (CP Act III of 1931) declined to allow taking of water to the respondents unless they executed an agreement in writing agreeing to pay Rs. 7/ per acre for rice cultivation and Rs. 45 per acre for sugar cane as charges for the use of water from Navegaon Bandh.
The respondents, therefore, challenged the levy of the said charges and asked for the appropriate writ against the appellants.
The High Court of Bombay allowed the writ petition and held that (a) the right to free water was a customary right recognised and recorded in Wazib ul Arz.
(b) the said right was preserved and was not destroyed by M.P. Abolition of Proprietary Rights Act, 1980 or by the M.P. Land Revenue Code, 1954 and (c) the State Government was not.
competent under the Irrigation Act to levy the water charges.
However.
the High court granted a certificate under article 133(1)(c) of the Constitution Dismissing the appeal, the Court ^ HELD: The provisions of Sections 45, 46 and 47 of the Abolition of Proprietary Rights Act read with the entries made in the Wazib ul Arz which was prepared at the time of the settlement under the Land Revenue Act 1917, make it crystal clear that the occupancy tenants and malik makbuza who were appropriating the water.
Of Navegaon Bandh tank for raising paddy and sugar cane crops before the date of vesting under Abolition of Proprietary Rights Act were 164 to continue lo enjoy those rights without any let or hindrance even after the date of vesting. 'The wounds "in the same rights" occurring in sub section 1 of section 45.
in fact leave no room for doubt that the absolute occupancy tenants and occupancy tenants were to continue to enjoy the irrigation and other water rights which were enjoyed by them before the date of vesting.
[172G 173F G] (2) The right of free irrigation which accrued lo the occupancy tenants and malguzars under sections 45 to 47 of the Abolition of Proprietary Rights Act were not only destroyed but were also saved by section 239 of the Madhya Pradesh Land Revenue Code.
1954 and, are therefore.
to continue to be enjoyed by the occupancy tenants and malguzars without being affected.
curtailed or whittled lower in any manner despite the repeal of section 45 to 47 of the Abolition of Proprietary Rights Act by section 238 of the Code.
[174G H, 175A] The words "all rights acquired" occurring in Section 239 of the Code are comprehensive enough to take in the irrigation and other rights acquired by the tenants and malik makbuza under sections 45 to 47 of the Abolition of Proprietary Rights Act which stood repealed by virtue OF section 238 of the Code.
thus fully protecting and preserving the said right of free irrigation.
[174E G] State of punjab V. Mohar Singh ; , reiterated (3) Section 26 of the Central Provinces Irrigation Act, 1931 vests in the Government all rights in the water of any river natural stream or natural drainage channel natural lake or other natural collection of water.
[175B] In the instant case, the tank being not a natural like, the Government was not competent to recover water charges by virtue of section 26 of the Central Provinces lrrigation Act, 1931.
the water rights which could be acquired by custom and were, in fact, acquired by custom by the respondents and were recognised and preserved both under the Abolition of Proprietary Rights Act and the Code cannot in any manner be interfered with by the appellants.
[175C D] Harrop v Hirst ; Allen V Petrick, 69 Mont. 373, 377, 379, 380 452, 453 (1924); quoted with approval.


judgement:
Civil Appeal No. 1265 of 1969.
From the Judgment and order dt.
3 1 1969 of the Andhra Pradesh High Court in Writ Petition No. 2763 of 1968.
section V. Gupte, Att.
General of India, K. N. Bhatt and R. N. Sachthey for the Appellant.
P. A. Chowdhary and B. Kanta Rao for Respondent No. 1.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
Respondent 1, Shri N. G. Ranga, was declared elected to the Lok Sabha on April 28, 1967 in a bye election .
From Srikakulam Constituency, defeating respondent No. 3, Shri B. Rajagopalarao.
The Election Commission of India, the appellant herein, called upon respondent 1 by a notice dated July 7, 1967 to show cause why he should not be disqualified for failure to lodge the account of his election expenses within the time and in the manner required by law.
Accepting the explanation submitted by Respondent 1, the appellant condoned the delay caused in submitting the account of election expenses and sent a communication dated August 167 1967 informing respondent 1 that it was decided not to take any further action in the matter.
Respondent 2, who is a voter in the Srikakulam constituency, thereafter submitted a petition to the President of India under Articles 84, 101,102,103 and 104 of the Constitution alleging that respondent 17 who was a sitting member of the Lok Sabha, had become subject to the disqualification mentioned in Article 1 102(1).
The President, exercising his powers under Article 103(2) of the Constitution, sought the opinion of the appellant by an order dated May 18, 1968.
The appellant issued a notice dated June 6, 1968 to respondent 1 calling upon him to submit his reply to the allegations contained in respondent 2 's petition to the President.
On June 26, 1968 respondent l filed writ petition No. 2763 of 1968 in the High Court of Andhra Pradesh asking for a writ Prohibition forbidding the appellant from taking further steps pursuant to the June 6 notice and for a declaration that the appellant had no jurisdiction to inquire into the petition submitted by respondent 2 to the President of India.
By its Judgment dated January 3, 1969 the High Court allowed the writ petition and issued a writ of Prohibition as prayed for.
It has granted to the Election Commission certificate of fitness under Article 133(1)(e) of the Constitution to appeal to this Court.
213 The narrow question for consideration is whether the appellant had jurisdiction to issue the notice to respondent 1 calling upon him to submit his explanation in regard to the allegations contained in the petition presented by respondent 2 to the President of India who, in turn, had referred the petition for the opinion of the appellant.
Article 103 of the Constitution read thus at the relevant time: "103(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Com mission and shall act according to such opinion.
" Upon the presentation of a petition by respondent 2 to the President of India, alleging that respondent 1 had become subject to the disqualifications mentioned in Article 102(1) of the Constitution, 2 question clearly arose as to whether respondent 1 had truly become subject to any of the disqualifications mentioned in that Article.
By clause (2) of Article 103, the President was bound to obtain the opinion of the appellant before giving his decision on the question.
Not only that, but the President was further bound to act according to the opinion given by the appellant.
The President therefore acted both in the exercise of constitutional authority and in the discharge of his constitutional obligation in referring the question raised by respondent 2 's petition for the opinion of the appellant.
The next question for consideration is whether, on receiving the President 's communication asking for its opinion, the appellant committed any error of law or acted beyond its jurisdiction in seeking the explanation of respondent 1.
The Representation of the People Act 43 of 1951, "the Act", confers extensive powers on the Election Commission in regard to inquiries pertaining to questions referred by the President for its opinion under Article 103 of the Constitution.
Section 146(1) of the Act provides, in so far as material, that where in connection with the tendering of any opinion to the President under Article 103, the Election Commission considers it necessary or proper to make an inquiry and if it is satisfied that on the basis of documents produced by the parties it cannot come to a decisive opinion on the matter which is being inquired into, it shall have for the purposes of inquiry the powers which a civil court has while trying a suit in respect, inter alia, of summoning and enforcing the attendance of 214 any person, examining him on oath, the discovery and production of any document and receiving evidence on affidavits.
Sub section (2) of section 146 which is more to the point provides: "The Commission shall also have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as in the opinion of the Commission may be useful for.
Or relevant to, the subject matter of the inquiry.
" We see no doubt that the Election Commission, by reason of these provisions, had the power and authority to require respondent 1 to furnish information on matters which were relevant to the subject matter of the inquiry, namely, the allegations contained in the petition presented by respondent 2 to the President of India.
Article 103(2), as it stood then, required the President to obtain the opinion of the Election Commission before deciding the question referred to in clause (1) of that Article.
The President was bound to act according to the opinion given by the Commission.
By the Forty second Amendment, Article 103(2) requires the President to consult the Election Commission.
The Amended Article expressly confers power on the Commission to make, for that purpose, "such inquiry as it thinks fit".
The implication of the unamended Article was in truth and substance the same, namely, that since the Commission was charged with the obligation to tender its opinion to the President, it had the power to make such inquiry as it thought fit in order to enable it to express its opinion, which under the law as it stood then, was binding on the President.
The Forty second amendment expressed clearly what was necessarily implicit in the old provision.
If the Constitution envisages that the Commission should have the power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to "consult" the Commission it cannot be that the Commission could tender its binding opinion without the right and, nay the duty, of making the necessary inquiry.
Respondent 1 rushed to the High Court some what hurriedly, thinking probably that the appellant having already condoned the delay which had occurred in filing the return of the election expenses, he had not incurred or become subject to any disqualification as mentioned in Article 102(1) of the Constitution and therefore the appellant had no justification for calling upon him to submit his explanation.
That however is a different thing from saying that either the President of India or the appellant exceeded his or its jurisdiction when the 215 former referred the matter for the opinion of the latter and the latter sought an explanation from respondent 1.
The appellant could and should have in the first instance verified from its own record whether there was any justification for the grievance made by respondent 2.
But in giving to respondent 1 an opportunity to submit his explanation.
the appellant, far from acting beyond the scope of its statutory and constitutional powers, acted in conformity with the principles of natural justice.
Article 103 (1) gives finality to the President 's decision which, under the old provision, had to be in conformity with the opinion of the Election Commission.
Before giving an opinion which thus had finality, the Commission acted but fairly in asking respondent 1 to submit his say.
As stated above, it had the power to ascertain what explanation respondent I had to give an answer to respondent 2 's allegations.
The High Court misdirected itself in reaching the conclusion that the appellant acted beyond its jurisdiction in issuing the notice to respondent 1 calling upon him to submit his explanation in regard to the allegations made by respondent 2 in his petition to the President.
According to the High Court, "facts leading to disqualification under section 10A" of the Act, "cannot be the subject matter of inquiry and decision under Article 103 of 'the Constitution '?.
It is impossible to accept this statement of law in view of the express provision contained in Article 103(1) (a) that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1), the question shall be referred for the decision of the President.
Article 102(1) provides by sub clause (e) that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament.
By section 10(A) of the Act, the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the Act and has no good reason or justification for the failure.
A declaration of disqualification made in pursuance of power conferred by section 10(A) is a declaration made by the Election Commission under a law made by Parliament.
It, therefore, attracts Article 102(1)(e) and consequently Article 103(1) of the Constitution.
The High Court thereafter proceeded to hold that the question whether respondent 1 had become subject to any disqualification under section 10(A) of the Act did not arise on the facts stated in the petition by respondent.
We do not see our way to accepting this statement.
216 Though respondent 2 was not in a position to make a categorical assertion in his petition that respondent 1 had incurred a specific disqualification he did make allegations generally in regard to disqualifications said to have been incurred by respondent 1.
Upon the making of these allegations a question arose or contemplated by Article 103(1)(a) of the Constitution and the President had to obtain the opinion of the Election Commission on that question.
Respondent 2 's petition could not have been rejected by the President without reference to the Election Commission on the ground that the allegations made by respondent 2 were unfounded or unsubstantial.
A similar question arose before this Court in Brundaban Nayak vs Election Commission of India and Anr.(1) Article 191(1) of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if, inter alia, he is so disqualified by or under any law made by Parliament.
Article 192(1), as it then stood, provided that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for he decision of the Governor and his decision shall be final.
By Article 192(2) the Governor had to obtain the opinion of the Election Commission before giving his decision and he was also under an obligation to act according to the Commission 's opinion.
These provisions correspond to Articles 102 and 103 respectively with which we are concerned.
While dealing with an argument as to whether it could be said that the question as contemplated by Article 192(1) had arisen, Gajendragadkar, C.J. speaking on behalf of the Court observed that the first clause of Article 192(1) P did not permit of any limitations and that all that the clause required was that a question should arise.
How the question arose, by whom it was raised and under what circumstances it was raised were not relevant for the purpose of the application of the clause.
The Court took notice of the fact that complaints made to the Governor could be frivolous or fantastic, but it held that if they were of such a character, the Election Commission would have no difficulty in expressing its opinion that they should be rejected.
That however did not mean that a question as contemplated by Article 192(1) did not arise.
Lastly it was urged in that case that it is the Governor and not the Election Commission who had to hold the enquiry since the Constitution required the Governor to decide the particular question.
This contention was rejected on the ground that it was the opinion of the (1) ; 217 Election Commission which in substance was decisive and therefore it was legitimate to assume that when the complaint received by the Governor was forwarded by him to the Election Commission, the latter had the power and the jurisdiction to go into the matter which meant that it had the authority to issue notice to the person against whom the complaint was made, calling him to file his statement and produce evidence in support of his case.
The High Court was in error in seeing "nothing" in this decision which was contrary to its view.
; For these reasons we allow the appeal filed by the Election Commission and direct that the writ petition filed in the High Court by respondent 2 shall stand dismissed.
There will be no order as to costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Constitution of India, 1950, Arts, 84, 101, 102.
1O3(2) and 1O4 Scope of Powers of the Election Commission under Sections 10A, 146 (1) (2) of the Representation of the People Act, read with article 103 (2) of the constitution.
Respondent No. 2 who is a voter in the Srikakulam Constituency submitted a petition to the President of India under Articles 84, 101.
103 and 104 of the Constitution of India alleging that respondent No. 1, a returned candidate to the Lok Sabha on April 28, 1967 in a bye election from that constituency, had become subject to the disqualifications contained in Article 102(1).
The President.
exercising his powers under Article 103(2) of the Constitution.
sought the opinion of the appellant by an order dated May 18, 1968.
The appellant issued a notice dated June 6, 1968 to respondent No. 1 calling upon him to submit his reply to the allegations contained in respondent 's petition lo the President.
Earlier to this, the appellant condoned the delay in submission; of account of election expenses by respondent No. 1.
On June 26, 1968, respondent No. 1, therefore, filed a Writ Petition in the Andhra Pradesh High Court asking for a writ of prohibition forbidding the appellant from taking further action pursuant to the Notice dated June 6 and for a declaration that the appellant had no jurisdiction to inquire into the petition submitted by respondent No. 2 to the President.
The High Court allowed the petition and issued a writ of Prohibition.
It has granted to the appellant a certificate of fitness under Article 133(1)(c) of the Constitution.
Allowing the appeal, the Court ^ HELD: 1.
The President acted both in the exercise of constitutional authority and in the discharge of his constitutional obligation in referring the question raised by respondent No. 2 's petition for the opinion of the appellant.
Upon the presentation of a petition by respondent 2 to the President of India;,. alleging that respondent 1 had become subject to the disqualifications mentioned in article 102(1) of the Constitution, a question clearly arose as to whether respondent 1 had truly become subject to any of the disqualifications mentioned in that article.
By clause (2) of article 103 the President was bound to obtain the opinion of the appellant before giving` his decision on the question.
Not only that, but the President was further bound to act according to the opinion given by the appellant.
[213D E] 2.
The Election Commission, by reason of the provisions of Section 146(1) and (2) of the Representation of the People Act, 1951, had the power and authority to require respondent 1 to furnish information on matters which were relevant to the subject matter of the inquiry, namely, the allegations contained in the petition presented by respondent 2 to the President of India. [214B C] (a) The Representation of the People Act, 1951, confers extensive powers on the Election Commission in regard to inquiries pertaining to the questions referred by the President for its opinion under Article 103 of the Constitution.
[213F G] 211 (b) article 103(2), as it stood then, required the President to obtain the opinion of the Election Commission before deciding the question referred to in clause (1) of that article.
The President was bound to act according to the opinion given by the Commission.
By the Forty second Amendment Article 103(2) requires the President to consult the Election Commission.
The Amendment Article expressly confers power on the Commission to make? for that purpose, "such inquiry as it thinks fit".
The implication of the unamended Article was in truth and substance the same namely.
that since the Commission was charged with the obligation to tender its opinion to the President, it had the power to make such inquiry as it thought fit in order to enable it to express its opinion.
which under the law as it stood then, was binding on the President.
The Forty second amendment expressed clearly what was necessarily implicit in the old provision.
If the Constitution envisages that the Commission should have the power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to "consult` ' the Commission, it cannot be that the Commission could tender its binding opinion without the right and pay the duty, of making, the necessary inquiry.
[214D G] (c) Article 103(1) gives finality to the President 's decision which, under old provision, had to be in conformity with the opinion of the Election Commission.
Before giving an opinion which thus had finality, the Commission acted but fairly in asking respondent l to submit his say.
In giving to respondent I an opportunity to submit his explanation.
the appellant, far from acting beyond the scope of the statutory and constitutional powers acted in conformity with the principles of natural justice.
[215B] 3.
In the instant case? though respondent 2 was not in a position to make a categorical assertion in his petition that respondent 1 had incurred a specific disqualification, he did make allegations, generally, in regard to disqualifications said to have been incurred by respondent 1. Upon the making of those allegations a question arose as contemplated by Article 103(1)(a) of the Constitution and the President had to obtain the opinion of the Election Commission on that question.
Respondent 2 's petition could not have been rejected by the President without reference to the Election Commission on the around that the allegations made by respondent 2 were unfounded or unsubstantial.
The High Court was not correct when it held that the question whether respondent 1 had become subject to any disqualification under Section 10A of the Representation of the People Act did not arise on the facts stated in the petition by respondent No. 2.
[215H, 216A B] Brundeban Nayak vs Election Commission of India and Anr., ; ; discussed and applied.
(b ) By Section 10A of the Representation of the People Act.
the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the Act and has no good reason or justification for the failure.
A declaration of disqualification made in pursuance of power conferred by section 10(A) is a declaration made by the Election Commission under a law made by Parliament.
It, therefore, attracts Article 102(1) (e) and consequently article 103(1) of the Constitution.
The High Court therefore misdirected itself in reaching the conclusion that the appellant acted beyond 212 its jurisdiction in issuing notice to respondent I in calling upon him to submit his explanations in regard to the allegations made by respondent No. 2 in his petition to the President.
[215C D, F H]


judgement:
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. 685/72.
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 I.P.C. section 467 I.P.C., section 468 I.P.C. and sections 471 read with 467 I.P.C. After having rendered this draconian verdict against a person who was a Reader in a University and claimed to be M.Sc., 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 Gandhi(1).
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 S.C.R. 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 leave.(1) [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 SLP(Crl.
No.1319ete.
Of 1977dt.31 7 1978(unreported 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 P.P. 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 S.I. 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 case(1).
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 [1978]1 S.C.R.153.
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: "18.2.
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 Gandhi(1), 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 SCI/78 202 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 an(3 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 observed(u): "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 said(1): "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 observed(2): "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 's(1) 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 U.S. Supreme Court, in Raymond Hamlin has extended this processual facet of Poverty Jurisprudence.
Douglas, J. there explicated(2): "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 14(3) 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 stated(1): 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 22(1) 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 19(1)(d)] read with sub article (5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril.
S.R. Petition dismissed.

summary:
Under section 363(1) 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 363(2), "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 s.417 read with s.511 I.P.C`., section 467 I.P.C. section 468 I.P.C. and 471 read with section 467 I.P.C. 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 363(2) 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 an(l (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 22(1) 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] (a)Courts 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.
P.C. 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 14(3) 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 19(1)(d) 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 dysfunction.[198A B] 195 Ujjagar Singh & Anr.
vs State (Delhi Admn), order in S.L.P. (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.