Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 418 (GAU)

Jitlal Mahato v. State of Assam

2019-04-03

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

body2019
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. B. Prasad, learned counsel for the applicants/appellants. Also heard Ms. S. Jehan, learned Additional Public Prosecutor, Assam. 2. The applicants/appellants were convicted under Section 302/201 IPC and were sentenced to undergo rigorous imprisonment for life and a fine of Rs. 10,000/- each for the offence under Section 302 IPC and rigorous imprisonment for 7(seven) years and a fine of Rs. 5,000/- each for the offence under Section 201 IPC as per the judgment and order dated 19.7.2014 of the learned Additional Sessions Judge No. 1, Kamrup (M) Guwahati in Sessions Case No. 43(K)/2012. After the pronouncement of the judgment, the applicants continued to remain in custody and since then have been serving out their sentences. In the circumstances, the applicants have preferred the accompanying appeal against the judgment and order dated 19.07.2014. As there is delay of 1474 days in preferring the appeal, this interlocutory application has been filed for condoning the aforesaid delay. 3. In paragraph 4 of the additional affidavit filed by the applicants, a specific stand has been taken that after their conviction and while they were serving out their sentences, the Superintendent of Jail had not informed them about the period within which the appeal from the order under which they had been committed to jail may be filed. A stand has also been taken that the applicants were not aware that in case they choose to file an appeal, the jail authorities would provide all necessary assistance to provide the certified copies of the judgment, related documents from the Court concerned and would assist in writing the appeal and forward the same to the appellate court. Paragraph 4 of the additional affidavit is as under: "4. That the applicants respectfully states that the Superintendent of Jail on their first admission after conviction did not informed about the period within which an appeal from the order under which he has been committed to jail may be filed. The applicants were also unaware that in case they choose to file an appeal, the jail authorities would provide all necessary assistance in obtaining the certified copies of the judgment, case related documents from the Court concerned as well as would assist in writing the appeal and forward the same to the appellate court. The applicants were also unaware that in case they choose to file an appeal, the jail authorities would provide all necessary assistance in obtaining the certified copies of the judgment, case related documents from the Court concerned as well as would assist in writing the appeal and forward the same to the appellate court. The applicants were therefore dependent on their family members and relatives for taking steps on their behalf for filing the connected appeal." 4. Mr. B. Prasad, learned counsel for the applicants/appellants relies upon the provisions of Rule 474 of the Assam Jail Manual, which, inter alia, provides that the Superintendent of Police shall inform every convict on his admission into the jail of the period within which the appeal from the order under which he had been committed to jail may be filed and further if the convict desires to appeal he is entitled to all the facilities to be granted to him for the purpose. Rule 474 of the Assam Jail Manual is as follows: "474. Superintendent to inform prisoner on admission of date when appeal petition must be filed - The Superintendent shall inform every convict on first admission to jail of the period within which an appeal from the order under which he has been committed to jail may be filed. If the convict desires to appeal and is entitled to do so, every facility shall be granted to him for the purpose." 5. We have taken note that Rule 474 of the Assam Jail Manual clearly provides that every convict on his first admission to the jail shall be informed that he has a right to file an appeal within the given period against the judgment and order under which he had been committed to jail and further that if he desires to file an appeal every facility shall be granted to him for the purpose as provided under Rules 475, 476, 477, 478 of the Assam Jail Manual. 6. The Assam Jail Manual had been framed in exercise of the power under Section 59 of the Prisons Act, 1894. 7. Section 59 of the Prisons Act, 1894 provides for certain instances for which the State Government may frame Rules and Section 59(24) provides for regulating the transmission of appeals and petitions from prisoners and their communications with their friends. The Assam Jail Manual had been framed in exercise of the power under Section 59 of the Prisons Act, 1894. 7. Section 59 of the Prisons Act, 1894 provides for certain instances for which the State Government may frame Rules and Section 59(24) provides for regulating the transmission of appeals and petitions from prisoners and their communications with their friends. Rule 474 of the Assam Jail Manual would have to be construed to have been framed also pursuant to the provisions of Section 59(24) of the Prisons Act, 1894 and as such the provisions thereof are statutory provisions. 8. The Supreme Court in its pronouncement in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra reported in (1978) 3 SCC 544 in paragraph 11 was of the view that one component of fair procedure is natural justice and a convict is entitled to atleast a single right of appeal on facts and it is integral to fair procedure, natural justice and normative universality that the first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21. By referring to the Constitutional Bench judgment in Maneka Gandhi Vs. Union of India, reported in (1978) 1 SCC 248 , it was held in paragraph 13 that a convict is entitled to atleast two requirements i.e., service of a copy of the judgment in time to file an appeal and for free legal service to a prisoner who is indigent or otherwise disabled from securing legal assistance and both provisions were held to be a requirement of Article 21 of the Constitution of India. 9. In view of the above, we are inclined to conclude that the requirement of Rule 474 of the Assam Jail Manual is a mandatory requirement and any deviation thereof would be a procedural aberration infringing the legal right of a prisoner. 10. In our view such requirement also satisfies the requirement of Article 21 of the Constitution of India as interpreted by the Supreme Court from time to time, which provides that a person may be deprived of his liberty only in accordance with the procedure established by law and such deprivation of personal liberty can be made only upon a strict and scrupulous following of all forms and rules of law. 11. 11. In this respect, the following pronouncements of the Supreme Court are relied upon: (i) In the case of Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi & Ors. reported in (1981) 1 SCC 608 in paragraph 4 it was held that: "The position now is that Article 21 as interpreted in Maneka Gandhi case requires that no one shall be deprived of his life or personal liberty except by procedure established by law...." (ii) In the case of State of Andhra Pradesh Vs. Challa Ramkrishna Reddy & Ors. reported in (2000) 5 SCC 712 in paragraph 22 it was held that: "Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even that State has the authority to violate the right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights." (iii) In the case of Kewal Pati (Smt.) Vs. State of UP. & Ors. reported in (1995) 3 SCC 600 in paragraph 2 it was held that: "A prisoner does not cease to have his constitutional right except to the extent he has been deprived of it in accordance with law. Therefore, he was entitled to protection." 12. In the instant case, the specific stand of the applicants/appellants is that he was not informed about his right to file an appeal and also the period within which such appeal be filed and further that he is entitled to certain other facilities as provided under Rules 475, 476, 477, 478 of the Assam Jail Manual of the Assam Jail Manual, like that of assistance for obtaining the certified copies of the judgment, procuring the related documents from the Court concerned as well as assistance in writing the appeal and forwarding the same to the appellate court and such stands had not been objected by the State authorities. 13. 13. In the circumstances, we are of the view that there was a procedural aberration of the requirements of Rule 474 of the Assam Jail Manual, inasmuch as, the appellants were not informed about their rights under the said provision and as because they were not so informed, it can also be construed to be a reason as to why they could not file their appeal within the stipulated limitation period which justifies that the delay of 1474 days in preferring the connected appeal requires a condonation. 14. We have already held that the requirement of Rule 474 is a mandatory requirement and a violation thereof by the State authorities would infringe the legal rights of the convict/prisoner to be informed about their right to file an appeal and as such the resultant delay of 1474 days in preferring the connected criminal appeal stands condoned. 15. In terms of the above, the interlocutory application stands allowed. 16. Registry shall register the connected criminal appeal and list the same for admission.