CHANDRAN Vs. STATE OF KERALA

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 S. 454,461 and 380 IPC. on the allegation that on 19-9-1981 he trespassed into the house in the possession of pw. 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 pw. 1. On returning home and on discovering the burglary, pw. 1 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, pw 4, he was arrested by the Head Constable of Police pw. 5 and the articles were seized. After completing investigation pw. 7 laid the charge. The accused was in judicial custody and pleaded not guilty. He did not have the assistance of a counsel. Prosecution examined 7 witnesses and marked P1 to P4 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 and antecedents were unsatisfactory, the Probation Officer suggested that this was a fit case for committing to the Borstal School, cannanore under S. 5 (1) of the Borstal Schools Act. The trial court, acting on that recommendation, instead 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 S. 428 of the Code. The accused preferred criminal appeal 108 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 S. 50) of the Borstal Schools Act which provides for such detention for 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 reported to this Court this illegality and forwarded the records also to this court. Thereupon, the case was taken up in suo mote revision and notice issued to the accused. It appears, meanwhile, on the basis of set off under S. 428 of the Code, he was released from the borstal School on 26-10-1982. Thereafter, on one occasion, he appeared in this court. He has not cared to appear in this court subsequently. I hereupon Shri s. Vijaya Kumar, a member of the Bar, has been appointed on State Brief. I have heard both sides.

(2.) SHRI Vijaya 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 cross-examination. The culpability of the accused has been upheld practically on the basis of the evidence of pws. 4 and 5. The report of the Probation Officer acted upon by the trial court would show that he is a young boy without 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 because he did not ask for it. Considering the age of the accused and the circumstances of the case, the trial court ought to have enquired from him about his capacity to engage counsel. Obviously, this was a case where due to poverty and on account of being in judicial custody, he was not in a position to engage counsel. The offences alleged are those under S. 380, 454 and 461 IPC. Had he not been an adolescent offender as defined in the borstal Schools Act, the maximum punishment of rigorous imprisonment for 10 years could perhaps have been imposed on him. I mention this to indicate the gravity of the offences involved and the seriousness with which the task of adjudging his guilt or innocence should have been performed.

(3.) THE State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to assigned counsel such sum as the court may equitably fix.