Research › Browse › Judgment

Allahabad High Court · body

1992 DIGILAW 1045 (ALL)

UMESH v. STATE OF UTTAR PRADESH

1992-08-11

VIRENDRA SARAN

body1992
VIRENDRA SARAN, J. ( 1 ) APPELLANT Umesh son of Jagdish was tried by the IV Additional Sessions Judge, Etawah in S. T. No. 335 of 1990. The learned Sessions Judge by his ORDER and order dated 27. 5. 1992 has passed the following order:i hereby sentence the accused Umesh son of Jagdish, resident of village Khudisar, P. S. Basrehar, district Etawah to undergo Imprisonment of Life under Section 302 of the Indian Penal Code. The accused is further directed to pay Rs. 30,000/- (Rupees Thirty Thousand only) as compensation to the minor sons and daughter of the deceased Megh Ram within a period of three months from today, failing which the law will take its course. The rest of the operative portion of the ORDER is regarding the material exhibits of the case and is not relevant for the purposes of the present order. ( 2 ) ON 5. 6. 1992 this Court admitted the appeal and granted bail to the appellant Umesh. A prayer was also made on behalf of the appellant that the direction of the court below regarding the payment of Rs. 30,000/- as compensation be also stayed. The court directed that for the consideration of the aforesaid question the case be listed on 15. 6. 1992 but the case has been listed now before me. ( 3 ) I have heard Sri G. P. Dikshit, learned counsel for the appellant and Sri S. K. Anwar learned counsel who has appeared on behalf of the complainant I have also heard the learned counsel for the State. ( 4 ) IT is argued by the learned counsel for the appellant that under Section 389 Code of Criminal Procedure, this Court possesses jurisdiction to suspend the execution of sentence or order/appealed against. On the other hand, the learned counsel for the complainant has submitted that the compensation has been awarded under Section 357 (3) Code of Criminal Procedure and the direction to pay the compensation cannot be stayed by this Court during the pendency of the appeal. On the other hand, the learned counsel for the complainant has submitted that the compensation has been awarded under Section 357 (3) Code of Criminal Procedure and the direction to pay the compensation cannot be stayed by this Court during the pendency of the appeal. Section 357 (3) reads as follows: Section 357 (3) - When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing ORDER, order the accused person to pay, by way of compensation, such amount may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced: In the present case, the order of the learned Sessions Judge goes to show that he has not sentenced the appellant to any fine but the learned trial court has directed the appellant to pay compensation of Rs. 30,000/- to the sons and daughter of the deceased (Megh Ram ). ( 5 ) THE question which now arises for consideration is whether this Court has any jurisdiction to stay the direction regarding the payment of compensation during the pendency of the appeal. Section 389 (1) of the Code of Criminal Procedure reads thus: 389-1. Pending any appeal by a convicted person, the Appellate Court may, for -reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be susi) ended and, also, if he is in confinement, that he be released on or on his own bond. T (The emphasis is mine) Section 381 of the Code of Criminal Procedure is very clear that the appellate court has jurisdiction to suspend the execution of an order appealed against In my opinion, Section 389 does not admit any other: interpretation. ( 6 ) COMING to the question whether the direction of payment of compensation should be stayed. The present is a case of night shooting and the case of a single shot. Much can be argued for and against the conviction and the appeal has already been admitted. The Court will decide the appeal on merits after the appeal is finally heard. The accused has a right to defend himself with all the resources at his command and by engaging legal practitioner of his own choice. Much can be argued for and against the conviction and the appeal has already been admitted. The Court will decide the appeal on merits after the appeal is finally heard. The accused has a right to defend himself with all the resources at his command and by engaging legal practitioner of his own choice. Article 22 (1) of the Constitution states: No person who is arrested shall be denied the right to consult, and to be defended by a legal practitioner of his choice. Article 39a of the Constitution states: 1139 A. 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. ( 7 ) ARTICLE 39a is one of the Directive Principles enshrined in our Constitution. Article 37 states that the Directive Principles are not enforceable but the principles laid down therein are fundamental. In Oqia Tellis v. Bombay Municipal Corporation, the Supreme Court held the right to livelihood to be a part of Article 21 of the Constitution. In a very recent case of Miss Mohini Jam v. State of Karnataka and others, which related to the capitation fee in private Medical Colleges, the Supreme Court held that even though the right to education;t as such has not been guaranteed as fundamental right under part 3 of the Constitution yet the said right was a part I. A. I. R. 1986 S. C. 180. 2. 1992 (4) J. T. 10. of the fundamental right. The Supreme Court in Para 14 of this ORDER observed: 14. The right to education, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. In this way the Supreme Court has been enforcing the directive principles as part of the fundamental rights. In the case of Janardan Reddy v. State of Hyderabad, the Supreme Court observed that the right to be defended by a legal practitioner of his choice could only mean a right of the accused to have the opportunity to engage a lawyer and does not guarantee an absolute right to be supplied with a lawyer by the state. T The Supreme Court has now changed its view. T The Supreme Court has now changed its view. In the case of Hussainara Khatoon v. Home Secretary, it is observed: The right to free legal service is clearly an essential ingredient of reasonable fair and just procedure for a person accused of an offence, and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of poverty, indigence or uncommunicado situation, and the state is under a man date to provide a lawyer to an accused person. In another case Sukhdeo Das v. Union Territry, the Supreme Court held that even if an accused does not ask for fee legal assistance, if the Court does not inform him of his right the entire trial would be vitiated. ( 8 ) FROM the above discussion, it is evident that an accused person cannot be denied legal assistance. In case the accuse has resources to engage a lawyer of his own choice, his valuable right cannot be scuttled by crippling his financial resources by realisation of heavy amounts of fines or by asking him to pay compensation while his appeal is pending disposal. The realisation of such 3. A. I. R. 1951 S. C. 217. 4. 1980 (1) S. C. C. 98. 5. 1986 (2) S. C. C. 401. sums bf money from the accused is likely to financially handicap the accused and deprive him of his opportunity of engaging a lawyer of his choice and he would have to knock the doors of the court to provide him with free legal assistance. Even free legal assistance is not enough as the accused may like his case to be argue by a senior Advocate of his choice. At any rate it would be a paradox first to cripple the accused financially and then provide a lawyer at State expense. The financial resources of an accused bleed out in defending himself at the trial stage itself and they ought not to be dried up completely by realising sums of fine or compensation while he has to make arrangements for the arguments of his appeal. Fairness demands that the realisation of such sums should be stayed pending the disposal of the appeal. ( 9 ) TO conclude, the direction of the learned. Fairness demands that the realisation of such sums should be stayed pending the disposal of the appeal. ( 9 ) TO conclude, the direction of the learned. IV Additional Sessions Judge, Etawah, asking the appellant to pay Rs. 30,000/- as compensation shall remain stayed during the pendency of the appeal is this Court. Order accordingly. .