Sikkim High Court
Anand Bardewa vs State Of Sikkim on 4 September, 1998
Equivalent citations: 1999CRILJ1804
Author: Anup Deb
Bench: Anup Deb
ORDER
Anup Deb, Actg. C.J.
1. By filing this revision petition the accused, Anand Bardewa has challenged the order dated 27-3-1998 passed in the Criminal Case No. 136 of 1997 by the Chief Judicial Magistrate, East and North, Gangtok whereby the accused was convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 1,000/- and in default of payment of fine the accused shall undergo simple imprisonment for one month for an offence under Section 380/34 of the Indian Penal Code (in short I.P.C.).
2. In the present case, the accused pleaded guilty to the charges. Various grounds have been taken. The accused is very young and he did not understand the intent and purport of the charge. It is further alleged that the learned Chief Judicial Magistrate failed to direct the accused to engage a lawyer at the State expense. He has also alleged that the prosecution has given assurance to the accused that they shall take a lenient view if the accused pleads guilty. After the case ended in conviction the complainant, Hemant Chettri stated that he had compromised the matter and he wants to withdraw the complaint. Offence under Section 380 IPC is not c6mpoundable.
3. If proper safeguards are taken a plea of guilty to a capital charge can be accepted. Such safeguards must include the accused's representation by counsel who must be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of his plea.
4. If the facts alleged by the prosecution or admitted by the accused do not amount to the offence charged or to any offence, the plea of guilty is no bar for an appeal on merits and does not stand in the way of the accused being acquitted.
Section 375 of Code of Criminal Procedure (in short Cr. P.C.) even assumes that the principle of Section 375 of Cr. P.C. should apply to revisions also, it is by now well-settled that though ordinarily in the case of conviction on a plea of guilty, there is a bar under Section 375 for an appeal except as to the extent or legality of the sentence, still if the facts alleged or disclosed or admitted by the accused do not amount to the offence for which he has been convicted, even though on his own plea, such a plea of guilty is no bar to an appeal on merits and to any challenge to the conviction itself and will not stand in the way of the accused being acquitted.
5. Mr. B. Sharma submits that in the present case offence was not committed in a house but was committed in a Studio but the charge shows that the offence was committed in the house of the complainant. The materials on records show that the offence appears to have been committed in a Studio or in the shop of the complainant. A charge must contain those particulars which give the accused an idea of the case which he has to meet. It may not contain elaborate details but there should be no doubt left in the mind of an accused person as to what is the case against him and what allegations he has to meet.
6. The basic requirement in every criminal trial, therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and the validity of the charge must in each case be determined by the application of the test, namely had the accused a reasonably sufficient notice of the matter with which he was charged? Where it is possible to specify precisely the necessary particulars required by Section 222(1) of Cr. P.C, the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge. It is to be seen whether a defective charge has led to the prejudice of the accused.'
7. In the present case the complainant, Hemant Chettri has stated that he has compromised the matter with the accused and that he wants to withdraw the complaint. An offence is not against an individual but it is against the society and State at large. Mr. Sharma has drawn my attention to the decision in Bhim Singh and Ors. v. State of J.P. reported in AIR 1974 SC 1744 : 1974 Cri LJ 1285 and this is a case under Section 324 of Indian Penal Code which is compoundable with the permission of the Court but in this revision application the accused has been charged with under Section 380 IPC which is not compound-able and therefore, this decision will be of No. help.
8. Mr. B. Sharma, thereafter relied upon the case of Mahesh Chand v. State of Rajasthan reported in AIR 1988 SC 2111 : 1980 Cri LJ 121. This is a case under Section 307 IPC which is not compoundable. In the aforesaid case the Supreme Court directed the trial Court to grant permission to compound offence after giving an opportunity to the parties and after being satisfied with the compromise agreed upon. In the aforesaid case one of the parties was a practising lawyer and that there was a counter case arising out of same transaction. Before granting such permission the Supreme Court made the observation after examining the nature of the case and the circumstances under which the offence was committed. In the present case though the complainant, Hemant Chettri wants to withdraw the case, I do not consider it proper to grant permission at this stage.
9. Mr. B. Sharma, Advocate submits that the accused was not defended by a lawyer and has placed reliance upon the decisions of the case of Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991 : 1986 Cri LJ 1084 wherein it was held that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that he was entitled to free legal assistance and inquiring from him whether he wanted a lawyer to be provided to him at State cost. This resulted in the accused remaining unrepresented by a lawyer in the trial which is clearly a violation of the fundamental right of the accused under Article 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity.
10. Section 12 of Legal Services Authority Act, 1987 is extracted below :-
12. Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is -
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital or psychiatric nursing home within the meaning of Clause (g) of Section 2 of the Mental Health Act, 1987; or
(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a Court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.
Rule 13 of Sikkim State Legal Services Authority Rules, 1995 subsequently re-numbered as Rule 17 under Sikkim State Legal Services Authority (Amendment) Rules, 1998 reads as follows :-
The upper limit of annual income of a person entitling him to legal service under Clause (h) of Section 12, if the case is before a Court, other than the Supreme Court - any citizen whose annual income from all sources does not exceed Rs. 15,000/- (Rupees fifteen thousand) and such higher amount as may be notified by the State Government from time to time, shall be entitled to legal services under Clause (h) of Section 12 of the Act.
11. A Court is under obligation to ask the accused or any person coming under Section 12 of Legal Services Authority Act that he is entitled a free legal service and unless this is done and failure to do so is sufficient ground for remand, retrial or re-hearing of the case in question.
In the present case the accused was not defended by a lawyer and the accused took a plea that the theft was committed in the studio/shop but the charge shows that the offence was committed in the house. It is up to the learned Chief Judicial Magistrate to rectify the error or to frame a fresh charge. Learned Chief Judicial Magistrate shall also enquire from the accused as to whether he comes under any of the provisions of Section 12 of the State Legal Services Authority Acts and Rules and if it appears that the accused comes under any of the provisions, he is entitled to legal aid at the cost of State.
12. In the present case the accused was convicted on its own plea of guilty. It is not on the record that the Chief Judicial Magistrate had informed the accused that he is entitled to free legal assistance. Offer for legal aid by Presiding Officer of a Court has to be reflected in the Order sheet.
13. In the result, the order dated 27-3-1998 is set aside and the case is remanded to the Chief Judicial Magistrate, East, Gangtok and he shall modify the charge in the light of discussions as above if he considers necessary after hearing the accused.
14. In the result, the revision is allowed. Records of the lower Court be sent at once and the Chief Judicial Magistrate, East and North is directed to complete the trial by 30-11-1998.