MAYAGOTHI HUSSAIN THAKRU Vs. HASSAN GANDUVAR HASSAN MANIKFAN
LAWS(KER)-1967-7-4
HIGH COURT OF KERALA
Decided on July 14,1967

MAYAGOTHI HUSSAIN THAKRU Appellant
VERSUS
HASSAN GANDUVAR HASSAN MANIKFAN Respondents

JUDGEMENT

- (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 with an offence under S.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 1 1/2 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. pw. 1 is the complainant, pws. 2 and 4 are two independent eyewitnesses. pw. 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 pw. 1 that he was ill disposed to him on account of the formation of the above Committee. pw. 2 is a member of the vigilance committee who had gone to the house of pw. 1 to discuss about their daily routine duties. pw. 4 is an islander who had also gone there to visit pw. 1.
(2.) The accused denied the charge. He has stated that he was abused by pw. 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. S.18 of the Laccadive Islands and Minicoy Regulation (I of 1912) stands in the way of the accused engaging a counsel of his choice to defend him. The section is: "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, is a violation of the protection guaranteed by Art.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 & 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 applicant under Art.22 of the Constitution and the right further conferred upon them, though similar in nature, under S.340 of the Code of Criminal Procedure, had in a sense been denied to them when the prosecution adopted such hot-haste in having the trial held of two batches of these persons on the 30th of March, 1955, and of another two batch's on the following day within the jail precincts. 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 Art.22 of the Constitution and S.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 Art.22 of the Constitution was infringed. S.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 Art.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 straight-forwardly 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 Art.22(1) of the Constitution." The above observations do not apply to the facts of the present case. In that case the permission bad to be given by the Tribunal itself and it was up to the accused to make the application to the Tribunal (i. e. the Court Martial) and when no such application was made, it would be unfair to say that the accused was denied his opportunity to defend himself by a civil lawyer. But in the present case the permission had to be sought from the Collector and not from the Court. The accused person to get justice, should not be harassed like that especially in view of the protection guaranteed by Art.22(1) of the Constitution. It is his right to be defended and that right has been restricted or made conditional on the permission of the Collector by S.18 of the Laccadive Islands and Minicoy Regulation (I of 1912). So long as the embargo is there, it is meaningless to say that the right was available but the accused did not approach the authority and seek his permission. I hold that in view of the fact that Art.22(1) of the Constitution has been violated, the trial is vitiated. The conviction and sentence entered on the petitioner are set aside and the case is remanded for a retrial giving him an opportunity to get himself defended by a lawyer of his choice.;


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