In Re: A.K. Gopalan

Panchapakesa Ayyar, J.—This matter arises from a petition u/s 56l(A), Criminal P. C., filed by one A. K. Gopalan, convicted in S. C. No.

23 of 1948 on the file of the Sessions Judge, North Malabar and sentenced to 5 years rigorous imprisonment. He has filed, criminal Appeal No.

243 of 1948 against that conviction and sentence, and that appeal is pending in this Court. His complaint is that when his advocate went on 25th

August 1949 to interview him in Cuddalore Central Jail to take instructions from him regarding this appeal, a police officer of the C.I D.

Department insisted on being present at the interview and taking verbatim shorthand notes of what he was telling the vakil, and that all this is illegal

and that if the C. I. D. Officer takes such notes be would communicate them to his superior officers and to the counsel on the opposite side, thus

breaking the rules regarding the confidential nature of such communications. He prays, therefore, that either this Court should order, u/s 561-A,

Criminal P. C. that no police officer should be present at the interview between him and his counsel, when he instructs his counsel regarding

criminal Appeal no. 213 of 1948 or the other two appeals of his in the Sessions Court, Coimbatore, and take notes of his instructions to his vakil,

or, in the alternative, that he be directed to be produced before this Court to argue Criminal Appeal No. 243 of 1948 in person. The learned

Public Prosecutor objected that this Court has no powers u/s 561-A, Criminal P. C. to grant either request as the Government had directed the C.

I. D. Officer to be present at such interviews. He relied on a decision of Govinda Menon and Rajagopalan JJ. in Cri. Misc. Petn. No. 1490 of

1949.

I have looked into that ruling. It has no bearing on the requests in this petition regarding the interviews concerning the three Criminal Appeals.

There, one Anandan Nambiar, a member of the Madras Legislative Assembly and a detenu under the Madras Maintenance of Public Safety Order

Act, I of 1947, having no case or appeal in this Court, prayed that the Superintendent of the Jail, where he was detained should be ordered to

produce him before the Speaker of the Madras Legislative Assembly during the Assembly session to take part in the Assembly proceedings even

though he had no notice to attend such proceedings, and to direct the Speaker of the Assembly to give him notice of the Assembly proceedings.

Their Lordships held, and if I may say so with respect, correctly that Section 561-A, Criminal P. C. had not given increased powers to a Court

which the Court did not possess before that section was enacted, much less new powers, and that it only safeguarded and guaranteed the

existence of those powers which the Court already possessed. Their ruling followed the ruling in AIR 1945 18 (Privy Council) . It is obvious that

the requests made by Mr Anandan Nambiar in the matter before their Lordships were quite outside the scope of this Court, having nothing to do

with any matter or proceeding before it, and that no notice also had been given to him by the Speaker of the Assembly to attend the Session, and it

was not alleged that he was being wrongfully kept in ignorance of such notice, or that a notice actually issued by the Speaker was being wrongfully

withheld from him and that he was being wrongfully prevented from attending the Assembly in obedience to such notice.

But, in this case, the petitioner has filed an appeal in this Court, which is pending and has also two appeals in the Sessions Court, Coimbatore,

and he has to be given by this Court all necessary facilities to instruct his counsel in those criminal appeals, like any other appellant. So, the

petitioner is asking this Court only to exercise the powers of this Court regarding appellants in cases before it, and concerning their right to instruct

vakils without a police officer being present and taking verbatim shorthand notes of his instructions. Undoubtedly, this High Court has had the

power to safeguard the rights of parties before it in civil and criminal cases as laid down by law, ever since its inception, and those rights have been

safeguarded and continued u/s 561-A, Criminal P. C. and this Court ought to see that those rights are not infringed. Of course, those rights are

subject to all the laws and rules governing the matter of interviews in Jail. In fact, the learned counsel for the petitioner has no objection whatever to

being made subject to Rule 430 of the Madras Jail Manual and to have the interview in the presence of a Jail Officer who can be so placed as to

be able to see and hear what passes between the petitioner and his counsel and to prevent any article being passed between the parties, as

contemplated in Rule 430 of the Madras Jail Manual. He only objects to a police officer being present and taking shorthand notes of his

instructions I consider his objection well founded. No Court shall fail in its duty of allowing a party to give instructions to his vakil freely and frankly

without police officers (who naturally represent the other side) being present and taking down shorthand notes of the instructions and broadcasting

them thereafter to their superior officers etc. There is also no rule shown to me under which an appellant before this Court or before the Sessions

Judge, Coimbatore, can be made, under mere executive orders of Government, to submit to the presence of a police officer at the interview

between him and his counsel or to such police officer''s taking down shorthand notes of the instructions between the party and the vakil, obviously

for intimating the instructions to the superior officers. I, therefore, direct the Superintendent, Central Jail, Cuddalore to allow the petitioner to have

interviews and give instructions to his counsel for the purpose of his criminal appeals without the presence of any police officer, and without his

instructions being taken down in shorthand, and subject only to the restrictions imposed by Rule 430 of the Madras Jail Manual and any other law

or rule applicable to the case. A Jail Officer is quite different from a police officer, Many a jail officer drafts Jail appeals for prisoners. Jail Officers

do not also represent the other side in criminal appeals. ""Jail Custody"" and ''police custody"" are, it is well-known, quite different. That is why the

petitioner objects to the presence of a police officer while not objecting to that of a jail officer.

In view of my granting the prisoner''s first request, there is no need to grant his second request which is only an alternative one.