UNNIKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in CC. No. 71 of 1982 on the file of the Judicial First Class Magistrate, Ottapalam is the petitioner in this case. He had unsuccessfully appealed his conviction under section 394 of the Indian Penal Code and the sentence of rigorous imprisonment for three years before the Court of Session, Palghat in Criminal Appeal No. 163 of 1982. The challenge in this petition is against the judgment of the Court of Session confirming his conviction and sentence.

(2.) The facts are only a few, but the points involved are matters of great moment in the context of rights for personal liberty under Articles 14 and 21 of the constitution in the context of the obligation of the State to provide legal aid to the poor as provided under Article 39A of the Constitution and section 304 of the Code of Criminal Procedure.

(3.) The petitioner is alleged to have threatened P.W. 1 a female school teacher, with a dagger at about 7.30 P.M. on 22-3- 1982 while P. W. 1 was returning along a Panchayat road from Vengali temple, and he is alleged to have caught hold of a golden chain worn by P.W. 1. Since she resisted the petitioners attempt to snatch away the chain the petitioner could get only a portion of the gold chain and he made good his escape when P.W. 1 made a hue and cry. The petitioner was arrested in connection with another crime at about 11.00 pm. on 22-2-1982. P.W 1 gave Ext. P1 first information at the Police Station, Ottappalam, on 23-2-1982 and identified the petitioner who was then in the lock up as the assailant. The Police recovered MO. 1 knife from the petitioner and also recorded a confession from the petitioner. The petitioner was in custody from 1100 P.M. on 22-2-1982 and during the course of the trial which commenced on 12-4-1982 and ended in his conviction on 11-6-1982. He was not informed of his right to be released on bail under section 167(2) of the Code of Criminal Procedure, nor was he provided with the service of a lawyer at the cost of the State to enable him to move for bail as enjoined upon all Magistrates in the decision of the Supreme Court reported in Hussainara Khatoon v. Home Secretary1. I deem it necessary that the following observations of the Supreme Court contained in the decision referred to supra bears repetition, since in spite of the positive mandates contained therein, the under trial prisoners are yet to be afforded the benefits of the decision of the Supreme Court: When an under trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the under trial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the under trial prisoner with a view to enabling him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of section 167 an a the Magistrate must take care to see that the right of the under trial prisoner to the assistance of a lawyer provided at State cost in secured to him and he must deal with the application for bail in accordance with the guideline laid down by us in our order dated February 12, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrates, and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to under trial prisoners and there will be proper observance of the rule of law.