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Mayagothi HussaIn Thakru Vs. Hassan Ganduvar Hassan Manikfan - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. 230 of 1966
Judge
Reported inAIR1968Ker34; 1968CriLJ165
ActsConstitution of India - Article 22(1); Laccadive Islands and Minicoy Regulation, 1912 - Sections 18
AppellantMayagothi HussaIn Thakru
RespondentHassan Ganduvar Hassan Manikfan
Advocates: M.M. Abdul Khader, Adv.
Cases ReferredRam Sarup v. Union of India
Excerpt:
- - p w 1 is a member of the village vigilance committee and it has come in the evidence that the formation of the committee was not liked by a section of the inhabitants there, particularly the seamen. the accused person to get justice, should notbe harassed like that especially in view ofthe protection guaranteed by article 22(1) ofthe constitution......their daily routine duties. p w 4 is an islander who had also gone there to visit p w 1.(2) the accused denied the charge. he has stated that he was abused by p. w. 1 while he was passing that way. he was stopped on the way and held under wrongful restraint for some time. he would however admit that the complainant had at the time a baby in his arms. the learned inspecting officer has believed the prosecution version of the occurrence and has entered the conviction.(3) i do not propose to go into the merits, of the case. the conviction and sentence have to be set aside and the case remanded on the sole ground that the accused was denied the opportunity of defending himself. section 18 of the laccadive islands and minicoy regulation (i of 1912) stands in the way of the accused engaging.....
Judgment:
ORDER

K. Sadasivan, J.

1. This revision petition is directed against the conviction and sentence passed on the petitioner by the Inspecting Officer, Minicoy in C. C. No. 6 of 1965, in which the petitioner stood charged under Section 323 I. P. C. The case against him was that on 25-6-1966 at about 7 p.m. he caused hurt to a child aged 11/2 years who was being held in his arms by the complainant. The complainant was standing in front of his wife's house 'Oludugothi' in Rameedu Village. The child was in his arms. The accused approached him from behind and hit the child.

When the complainant turned back and questioned the accused he shouted at him in a fit of temper and left the place. The child started crying on receipt of the fisting and within no time it developed fever. The Medical Officer of Minicoy Island was immediately summoned to the house and the child was got examined by him. As advised by the doctor, the child was immediately taken to the hospital for further treatment.

The prosecution has examined 7 witnesses. P W 1 is the complainant, P Ws 2 and 4 are two independent eye-witnesses. P W 1 is a member of the Village Vigilance Committee and it has come in the evidence that the formation of the Committee was not liked by a section of the inhabitants there, particularly the seamen. The accused is a seaman and it was believed by P W 1 that he was ill-disposed to him on account of the formation of the above Committee. P W 2 is a member of the vigilance committee who had gone to the house of P. W. 1 to discuss about their daily routine duties. P W 4 is an islander who had also gone there to visit P W 1.

(2) The accused denied the charge. He has stated that he was abused by P. W. 1 while he was passing that way. He was stopped on the way and held under wrongful restraint for some time. He would however admit that the complainant had at the time a baby in his arms. The learned Inspecting Officer has believed the prosecution version of the occurrence and has entered the conviction.

(3) I do not propose to go into the merits, of the case. The conviction and sentence have to be set aside and the case remanded on the sole ground that the accused was denied the opportunity of defending himself. Section 18 of the Laccadive Islands and Minicoy Regulation (I of 1912) stands in the way of the accused engaging a counsel to defend him The section reads:

'18. No pleader shall be allowed in any Court except with the special permission of the Collector. Parties may, however, be represented by their island mukhtyars.'

So, in engaging a lawyer, the accused has to obtain the permission of the Collector. This I think it a violation of the protection guaranteed by Article 22(1) of the Constitution The article reads:

'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.'

Commenting on this Article, the Allahabad High Court has observed in Deodat Rai v. State, AIR 1951 Allahabad 718:

'The only condition necessary for a person to have the right of defence by legal practitioner is that he must have been arrested; it is not at all obligatory that after arrest he should have been detained. If after arrest he was released on security, his right of defence by a legal practitioner which accrued at the moment of his arrest would continue, because the right to be defended is a continuing right .....................In order to show that the Constitution has been infringed, it was not necessary for the applicants to show that they were denied the right of defence by a legal practitioner by the Judge; they need not have made any application to the Judge and the Judge need not have dismissed it. It is sufficient that the Act itself denied them the right.........'

The same high Court has observed in a later case Hansraj v. State, AIR 1956 All 641:

'The fundamental right given to the applicants under Article 22 of the Constitution and the right further conferred upon them, though similar in nature, under Section 340 of the Code of Criminal Procedure, had in a sense been denied to them when the prosecution adopted such a hot-haste in having the trial held of two batches of these persons on the 30th of March, 1955, and of another two batches on the following day within the jail precints The trial was therefore vitiated.'

In that case the accused persons were not told about the date of the trial, nor were they told that under Article 22 of the Constitution and Section 340 of the Code of Criminal Procedure they had a right to consult a legal practitioner and to be defended by him. Nor were they told that if they made any statement which was damaging to their interest the same statement may have to be used against them. The court held that the trial is vitiated since the protection afforded by Article 22 of the Constitution was infringed. Section 340 of the Code of Criminal Procedure would state that the accused has a right to be defended by a pleader.

In meeting this contention the decision of the Supreme Court in Ram Sarup v. Union of India AIR 1965 SC 247 was relied on by the learned counsel for the prosecution. That was a case where the right to defend was denied to the accused by the Court martial. No prayer was made before the Court martial that he should be allowed to defend himself by a counsel. The Supreme Court held that since no request was made that he should be allowed to be defended by a counsel. It cannot be said that there is a violation of the right. The learned Judges observed:

'In paragraph 9 of his petition he did not state that he had made a request for his being represented by a counsel of his choice. He simply stated that certain of his relatives who sought interview with him subsequent to his arrest were refused permission to see him and that this procedure which resulted in denial of opportunity to him to defend himself properly by engaging a competent civilian lawyer through the resources and help of his relatives and infringed his fundamental right under Article 22 of the Constitution. If the petitioner had made any express request for being defended by a counsel of his choice, he should have stated so straightforwardly in para 9 of his petition. His involved language could only mean that he could not contact his relations for their arranging a civilian lawyer for his defence. This negatives any suggestion of a request to the Military Authorities for permission to allow him representation by a practising lawyer and its refusal.

We therefore hold that there has been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice conferred under Article 22(1) of the Constitution.'

The above observations do not apply to thefacts of the present case. In that case thepermission had to be given by the Tribunalitself and it was up to the accused to makethe application to the Tribunal (i.e. the Courtmartial) and when no such application wasmade, it would be unfair to say that the accused was denied his opportunity to defendhimself by a civil lawyer. But in the present case the permission had to be soughtfrom the Collector and not from the Court.The accused person to get justice, should notbe harassed like that especially in view ofthe protection guaranteed by Article 22(1) ofthe Constitution. It is his right to be defended and that right has been restricted or madeconditional on the permission of the Collector by Section 18 of the Laccadive Islands andMinicoy Regulation (I of 1912). So long asthe embargo is there, it is meaningless tosay the right was available but the accuseddid not approach the authority and seek hispermission. I hold that in view of the factthat Article 22(1) of the Constitution hasbeen violated, the trial is vitiated. The conviction and sentence entered on the petitioner are set aside and the case is remandedfor a retrial giving him an opportunity to theaccused to get himself defended by a lawyer of his choice.


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