Issue 61 Vol III, April 15, 2008

L A W  &  J U S T I C E

What –If people loose faith in courts?
Joginder Singh Toor

THE appeal may be dismissed. Counsel Raj Kumar Gupta makes an unusual request to a High Court Judge. ‘My client says he “has no faith in the courts. He does not want his appeal against his conviction for 7 years rigorous imprisonment decided by the Court.” Why? The Judge asks astonishingly.

The appellant Darshan Singh was challaned by the police for abetting his wife to commit suicide on April 23.1997, was arrested tried and sentenced, was not allowed bail. By the time the trial concluded he had already suffered 3 years jail. A Sessions Court ordered him to undergo 7 years imprisonment, for which according to jail rules he was required to remain in, for a period grossly of about 5 years, excluding remissions and concessions. He filed appeal in the High Court. It was contended that in all he has to remain in jail for 1½ to 2 years and that his appeal be decided either on motion stage or on an early date. The High court orders in July, 2000 that the appeal be heard within one year. It is not heard nor even taken up. Darshan Singh completes his imprisonment on july1 2002. The jail authorities could not keep him in. He had to be released.

The appeal is not taken up till March, 2008 even 6 years after the appellant had under gone the entire sentence.

It is shocking. The Judge observes. I express my anguish. It is breach of justice. I propose the State should be penalised  with costs and proposes Rs.5000/- as costs to be paid to the appellant (Another joke) mean while the Judge takes up two other cases, which too have come up after long period, for hearing. Both the counsels seek adjournment. The Judge observes that the lawyers are at fault and drops the idea of imposing costs in Darshan Singh’s case.

Legally, the convict has a right to have his appeal decided on merits even if he has suffered the entire sentence says that Supreme Court of India in Retti Deenabandhu’s case (AIR 1977-S.C-1335) because the object of such a challenge to conviction is to avoid the other consequences flowing from conviction and also to erase the stigma resulting from the conviction.

Before filing application the counsel tries to persuade the appellant to continue with the appeal as he has paid the entire fee, has suffered the sentence, is not to loose any thing and  has a chance to have the stigma removed. Particularly in view of recent judgement of the Punjab High Court in Shunti @ Raju Vs state “That in present days a convenient mode has been adopted by the relations and the investigation agency to name accused as abettors in each case of suicide ….and to say that a spouse should live a chaste life in accordance with the expectations of the other spouse, and if the same is not adhered to, the other will commit suicide and make the other spouse responsible, is for fetched, and that every suicide will give rise to an offence of abetting under Section 306 IPC can not be entertained in law unless or until a simple act is followed by an other aggravating act, which compels the commission of suicide.”

“I can swear by God, at any religious place that I am innocent but nobody has believed me nor will anybody believe me now. My wife’s father lodged the complaint that his daughter told him in the morning when he went to visit the house of the daughter that her husband (i.e I) was having affair with another lady and that it was not tolerable to her and after he came back to his house his daughter committed suicide. Even if I am acquitted now who will undo the harm, the pain and the agony I have suffered. I think it was part of my destiny for some ill doing of my past life. Darshan Singh consoles himself, but is firm in not getting his appeal decided by the court as he had lost faith in them.”

We are left to ponder over the fate of millions of other similarly situated litigants waiting for justice. One is reminded of the observation of justice V.R.Krishna Iyer while hearing a similarly delayed case, that “we admit the appeal after being convinced that there is some point in it worth considering but refuse bail because the man has been convicted of a serious offence and we ask him to wait in jail till we have the time to hear his appeal (may be after 10 or 20 years). The justice delivery system which we are experiencing negates Article 21 of the Constitution which guarantees protection of life and liberty in unequivocal words.”

“No person shall be deprived of his life or personal liberty except according to procedure laid down by law.”

The Article 21 though not textually amended has been judicially transformed by numerous judgements so as to elaborate its components, the person, the deprivation of life, liberty and procedure established by law, which according to the Supreme Court should not only be established by law but should also be just, fair and reasonable (Maneka Gandhi Vs Union of India) Art. 21 imposes a procedural limitation on law that effects liberty and it becomes relevant, as soon as, a person is arrested and it remains relevant so long as he remains subject to criminal prosecution that may result in deprivation of his life or personal liberty (Sheela Barse Vs State of Maharashra) and Javed Ahmad Vs State and Rudul Shah Vs State).

Common cause a registered society brought to the notice of the Supreme Court the fait of persons facing trials for years together while languishing in jail. The Supreme Court laid down certain guidelines for lower courts for grant of bail and completion of trials in all cases except economic offences, cases relating to corruption, cheating, smuggling, drugs etc. (common cause Vs U.O.I) (Rajdeo Sharma Vs State of Behar) etc. Later on a petition filed for clarification of directions given in Rajdeo’s case the Supreme Court by a majority judgement modified the directions giving some discretion to the courts to continue with trial even if it is inordinately delayed for reasons mentioned. The result, as seen, in number of cases is that trial which includes appeal is not concluded in reasonable time much less expeditiously or speedily.

Not one but many like Darshan Singh undergo their sentence before their trial or appeal is decided. Reasons for delay may be any or more than one, it is the concern of the State not the subjects, that the justice delivery system works in terms of Article 21 to protect the life and liberty of the people not to deprive them on the anvil of unjust, unfair and unreasonable procedure. Who can restore the loss of dignity, the pain and suffering not only by the accused but by the whole family if the court ultimately comes to the conclusion that it was case of false implication?

We need a serious re-look. It is matter of concern for all. Life and liberty of persons cannot be taken away, destroyed by sheer ignorance and sluggish functioning institutions of justice.

[Joginder Singh Toor, Advocate, jogindersingh_toor@yahoo.com Mobile 91- 98151-33530]

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