NARAYANSINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioners in this application under section 482, criminal Procedure Code complain of denial of hearing by this Court on sentence imposed upon them in Criminal Appeal No. 328 of 1984 (State vs. Halkesingh and 3 others), decided on 20th September, 1988 wherein this Court had convicted them, for the first time of offence punishable under Section 324/34, Indian Penal code and sentenced them to rigorous imprisonment for two years each. They contend that if this Court had heard them before deciding upon the sentence, they might not have been ordered to go back to jail after such a long lapse of time. The petitioners were charged for offence punishable under section 302/34, Indian penal Code but were acquitted by the Addl. Sessions Judge, Gadarwara in sessions Trial No. 34 of 1982, decided on 29-11-1983. The appeal decided by this court was the appeal against their acquittl wherein this Court written the verdict "guilty" against the petitioners and sentenced them, as aforesaid. There is no dispute that the petitioners were not heard on sentence after this Court held them guilty, as aforesaid. It is, therefore, a case where the petitioners were, for the first time convicted and sentenced by this Court.

(2.) "procedural fairness" is our judicial faith and is inbuilt in the Constitutional guarantee under Articles 14 and 21. These constitutional imperatives imposed a new obligation upon judges to constitutionalise the judicial process even if it may require donning a new robe and giving up the constitutional role of an umpire. This new obligation is fully explained in Rajan Dwivedi vs. Union of India, AIR 1983 SC 624, wherein the Apex Court has found a constitutional duty to construe law to accord with the directive principles of the State policy. The judicial process has developed many other facets of "personal liberty" using this constitutional commitment as the basis thereof. Not only the freedom from physical restrain but all aspects of personal liberty are now included within the ambit and scope of the phrase appearing in Article 21 of the Constitution. Minerva Mills vs. Union of india, AIR 1980 SC 1789, has elevated directive principles to a higher than before level and treated them as "conscience" of the Constitution. Maneka Gandhi vs. Union of India, AIR 1978 SC 597, added new dimension to the guarantee enshrined in Article 21 by providing that the procedure established by law must be reasonable, fair and just and not arbitary, whimsical and fanciful. Jurists believe that Maneka Gandhi's case (supra) has become the spring board for a most spectacular evaluation of law relating to criminal prosecution. It must therefore be accepted as well-settled that it is the constitutional duty of this Court to not only act in accordance with law but also to act in a manner that guarantees procedural fairness to litigants before it. It should also be accepted as well-settled that the procedure to be followed by this Court must be reasonable, fair and just and not arbitrary, whimsical or fanciful.

(3.) WE would, therefore, like to examine if we have while deciding Criminal appeal No. 328/84 against the petitioners even unwittingly denied them their constitutionally guaranteed right of procedural fairness? This would necessarily involve adjudication of their claim that they have a right to be heard on sentence after this Court has decided to convict them for offence under section 324/34, indian Penal Code. Sections 235 (2), 248 (2) and 255 (2) of the Code of Criminal procedure, 1973 without doubt ensure them this right before the Sessions Judge or the Magistrate. There is, however, no such provision in Chapter XXIX dealing with appeals. Section 386, Criminal Procedure Code deals with powers of this court in relation to an appeal from an order of acquittal and reads as under : -