STATE OF KERALA Vs. THANKAN CHANDRAN

JUDGEMENT

(1.) In C.C. 229 of 1981, on the file of, the Additional Judicial First Class Magistrate, Trivandrum, accused Chandran was charged with offences under Sections. 454, 461 and 380, I.P.C. on the allegation that on 19.9.1981 he trespassed into the house in the possession of P. W. 1, entered the house through the window of the kitchen by removing the bars and committed theft of steel vessels and sari which were kept on a dining table and in an almirah in the room, in the absence of P.W. 1. On returning home and on discovering the burglary par reported the matter before Vanchiyoor Police and a case was registered as Crime No. 241 of 1981 and the investigation commenced. On 26.10.1981, when the accused was reportedly attempting to sell the stolen articles to a hotelier, P.W.4, he was arrested by the Head Constable of Police P.W.5 and the 'articles were seized. After completing investigation P.W. 7 laid the charge. The accused was on judicial custody and pleaded not guilty. He did not have the assistance of a counsel. Prosecution examined 7 witnesses and marked P-1 to P-4 and M.Os. 1 to 8. The defence did not tender any evidence. The accused did not even cross-examine any witness. The case ended in conviction for all the offences alleged. Since the accused was, at that time, between 18 and 19 years old, report of the Probation Officer was obtained by the trial court. The report disclosed that the accused has developed criminal tendencies, addicted to drinking and gambling, is uncontrollable and not amenable to discipline, without occupation and keeping company of bad characters. It was reported that he was not in touch with his family also for three years. Since his character arid antecedents were unsatisfactory, the Probation Officer suggested that this was a fit case for committing to the Borstal School, Cannanore under Section 5(1) of the Borstal schools Act. The trial court acting on that recommendation, in stead of awarding sentence to the accused, committed him to the Borstal School, Cannanore for a period of three years and directing that set off would be allowed under Section 428 of the Code. The accused preferred criminal appeal l08 of 1982 before the Sessions Court Trivandrum. The Sessions Court confirmed the conviction but reduced from three years to one year the period during which the accused had been directed to be committed to Borstal School, Cannanore. This was done ignoring the mandatory provision in Section 5(1) of the Borstal School Act which provides for such detention far a minimum period of two years and maximum period of seven years. When this was brought to the notice of the Sessions Court, the court report to this Court this illegality and forwarded the records also to this court. Thereupon, the case was taken up in suo motu revision and notice issued to the accused. It appears, meanwhile on the basis of set off under Section 428 of the Code, he was released from the Borstal School an 26-10-1982. Thereafter, an one occasion, he appeared in this court. He has not cared to appear in this court subsequently. Thereupon Shri S. Vijaya Kumar, a member of the Bar, has been appointed the State Brief. I have heard both sides.

(2.) Shri Vijay Kumar has brought to my notice a disturbing feature of the case namely, the non-representation of the accused by counsel before the trial court. The accused was undefended and did not put any questions to any of the witnesses in crass-examination. The culpability of the accused has been upheld practically on the basis of the evidence of P.Ws.4 and 5. The report of the Probation Officer acted upon by the trial court would show that he is a young bay with out any ostensible means of livelihood and at the time of trial before the trial court he was in judicial custody. He should have been given assistance of counsel in the matter of defending himself. May be, it was not given be cause he did not ask for it. Considering the age of the accused and the circumstances of the case, the trial court aught to have enquired from him about his capacity to engage counsel. Obviously, this was a case where due to poverty and an account of being in judicial custody he was not in a position to engage counsel. The offences alleged are those under Sections 380, 454 and 461, I.P.C. Had he not been an adolescent offender as defined in the Borstal Schools Act, the maximum punishment of rigorous imprisonment far 10 years could perhaps have been imposed on him. I mention this to indicate the gravity of the offences involved and the serious ness with which the task of adjudging his guilt or innocence should have been performed.

(3.) The importance of legal aid and assistance, particularly in an adversary system of administration of Criminal Justice like ours, cannot be aver-emphasized. The U.S. Supreme Court has explained the same graphically in Raymond Hamins case, O.S.S.C.R. Vol. 32 thus: