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SUPREME COURT OF INDIA
A.K. SARKAR, C.J.I., M. HIDAYATULLAH, J.R. MUDHOLKAR, R.S. BACHAWAT AND J.M. SHELAT, JJ.
State of M.P. , Appellant
Versus
Shobharam and others, Respondents.
1. Advocate-General for the State of Madras. 2. Advocate-General for the State of Kerala. 3. Advocate-General for the State of Gujarat. Interveners.
Criminal Appeal No. 20 of 1965.
Advocates appeared
Mr. B. Sen, Senior Advocate, (Mr. I. N. Shroff, Advocate, with him), for Appellant; Mr. B. D. Sharma, Advocate (Amicus Curiae), for Respondents.
Mr. A. V. Rangam, Advocate, for Intervener No. 1; Dr. V. A. Seyid Mohammad, Advocate-General for the State of Kerala and Mr. B. R. L. Iyengar, Senior Advocate, (M/s. A. G. Pudissery and M. R. K. Pillai, Advocates, with them), for Intervener No. 2, Mr. B. R. G. K. Achar, Advocate, for the Intervener No. 3.
Per Majority (Hidayatullah, Bachawat and Shelat, JJ.) - The declaration that no person shall be deprived of his personal liberty except by procedure established by law contained in Art. 21 is general and insists on legality of the action. The rights given by Art. 22 (1) and (2) are absolute in themselves and de not depend on other laws. It cannot be contended that if there is only a punishment of fine provided by the particular statute and there is no danger to personal liberty in a proceeding therein the protection of Art. 22 (1) is not available. Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment. A person arrested and put on his defence against a criminal charge, which may result in penalty, is entitled to the right to defend himself with the aid of counsel and any law that takes away this right offends against the Constitution. A person who is arrested gets three rights which are guaranteed. The first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail from him. The next is that the person arrested must not be detained in custody more than 24 hours without being produced before a Magistrate. This requirement is dispensed with when the person arrested is admitted to bail. The third is that he gets a right to be defended by a legal practitioner of his choice. This is, of course, so while the arrest continues but there are no words to show that the right is lost no sooner than he is released on bail. The word 'defended' clearly includes the exercise of the right so long as the effect of the arrest continues. Before his release on bail the person defends himself against his arrest and the charge for which he is arrested and after his release on bail, against the charge he is to answering and, for answering which, the bail requires him to remain present. When the Constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law and it is not sufficient to say that the accused who was so deprived of this right, did not stand in danger of losing his personal liberty. If he was exposed to penalty, he had a right to be defended by counsel. [Para 23 & 27]
The arrest of an accused on a criminal charge has an intimate connection with his eventual trial on the charge. It is at the trial in the criminal Court that the accused defends or is defended by counsel. Section 340 of the Code of Criminal Procedure, therefore, provides that any person accused of any offence before a criminal Court may of right, be defended by a pleader. In this background the right of defence by a legal practitioner given by Art. 22 (1) must extend to defence in a trial in a criminal Court. There is no warrant for giving a restricted interpretation to the second part of the clause by reference to Art, 21 and for saying that the right to be defended by counsel is limited to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment. [Paras 15, 28, 35 & 42]
Per Minority (Sarkar, C.J. and Mudholkar, J.) - A person arrested has the constitutional right to consult a legal practitioner and to be defended by a legal practitioner. This right would include a right to take steps through a legal practitioner for release from arrest. Where a person is subjected to a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner. The reason is that Arts. 21 and 22 of the Constitution are concerned only with giving protection to personal liberty. The requirement laid down in Art. 22 (1) is not a constitutional necessity in any enactment which does not affect life or personal liberty. It cannot be said that the fact of arrest gives the arrested man the constitutional right to defend himself in all actions brought against him. It is not the fact of the arrest itself that gives the right to be defended by a lawyer in all matters. [Paras 3-8]
(2) Panchayats Act, 1949 (M.B.) - S. 63 - right to be defended by legal practitioner denied - section void to the extent.
Under section 447, I.P.C. the Police arrested the accused without warrant. They were released on execution of bail bonds. On a charge-sheet being presented to the Nvaya Panchayat the accused appeared before the Nyaya Panchayat and executed fresh bonds. They were convicted and sentenced to pay a fine under section 447, I.P.C. In revision before the High Court, the accused contended that section 63 of the Madhya Bharat Panchayat Act was violative of Art. 22 (1) of the Constitution and the trials and convictions were illegal inasmuch as that provision deprived them of the privilege of being defended by a legal practitioner. The High Court held that section 63 of the Panchayat Act was void to the extent that it denied the accused the right to be defended by a pleader in the trial before the Nyaya Panchayat, and quashed the conviction and sentence.
Per Majority (Hidayatullah, Bachawat and Shelat, JJ.) - Section 63 of the Madhya Bharat Panchayat Act being inconsistent with Art. 22 (1) became void on the coming into force of the Constitution in so far as it took away the right of an arrested person to be defended by a legal practitioner of his choice.
Per Minority (Sarkar, C.J. and Mudholkar, J.) - Section 63 is not void. It does not give any power to deprive anyone of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial. The fact that the accused were arrested under Criminal Procedure Code cannot make the Act void. [Paras 2, 9, & 10]
Per Bachawat and Shelat, JJ. – S. 63 is void, but as the accused never claimed that they should be defended by Counsel, there was no occasion for enforcing the provisions of section 63. The existence of that section on the statute book did not cause them any prejudice. The High Court ought not to have quashed the conviction. [Para 43]
Judgment
SARKAR, CJI. (With him J. R. Mudholkar, J. ) : On a complaint of trespass the police registered a case against the respondents under S. 447 of the Penal Code. The respondents were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police. The case against the respondents was thereafter put up before the Nyaya Panchayat, a Court established under the Madhya Bharat Panchayat Act, 1949. In that Court, fresh bonds were executed by sureties on behalf of the respondents to ensure their presence during the trial. The Nyaya Panchayat, after trial, convicted and sentenced the respondents to a fine of Rs. 75 each. The conviction was upheld by the Additional Sessions Judge Barwani. The respondents then moved the High Court of Madhya Pradesh in revision which set aside the conviction. Hence the present appeal.
2. Section 63 of the Panchayat Act provides that no legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute, case or proceeding pending before the Nyaya Panchayat. The High Court observed that in view of the provisions of Art. 22 (1) of the Constitution, the section was void in respect of persons who were arrested. As the respondents had been arrested, it set aside their conviction. The question in this appeal is, whether the section violated Article 22 (1). That provision has to be considered along with Art. 21 of the Constitution and both are set out below:
"Art. 21, No. person shall be deprived of his life or personal liberty except according to procedure established by law.
Art. 22 (1). No. person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."
3. It seems to us fairly clear that a person arrested has the constitutional right to consult a legal practitioner concerning his arrest. It is also clear that a person arrested has the constitutional right to be defended by a legal practitioner. But, against what is he to be defended ? We think that the right to be defended by a legal practitioner would include a right to take steps through a legal practitioner for release from the arrest. Now, S. 63 of the Act puts no ban on either of these rights. It cannot be said to be invalid as denying these rights. We may add that the Act is not concerned with arrest and gives no power to arrest.
4. But, is the right to be defended by a legal practitioner conferred only on a person arrested ? We do not think so. In our opinion, the right to be defended by a legal practitioner extends also to a case of defence in a trail which may result in the loss of personal liberty. On the other hand, in our view, where a person is subjected to a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner. The reason is that Arts. 21 and 22 of the Constitution are concerned only with giving protection to personal liberty. That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution. That also appears to be the view which has been taken by this Court. Thus in State of Bombay v. Atma Ram Sridhar Vaidya 1951 SCR 167 at p. 204, Das, J. (as he then was) observed :
" ......... the implication of that article (Art. 21) was that a person could be deprived of his life or personal liberty provided such deprivation was brought about in accordance with the procedure enacted by the appropriate Legislature. Having so provided in Art. 21, the framers of our Constitution proceeded to lay down certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accorda
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