ORDER.- In C. C No. 229 of 1981, on the file of the Additional Judicial First Class Magistrate, Trivandrum, accused Chandran, was charged with offences under Section 454 , 461 and 380, Indian Penal Code, on the allegation that on. 19th September, 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. P.W. 1 reported the matter before Vanchiyoor Police and a case was registered as Crime No. 241 of 1981 and the investigation commenced. On 26th October, 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 in 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 and 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, instead of awarding sentence to the accused, committed him to the Borstal School, Cannanore for a period of three and directing that set-off world be allowed under section 428 of the’ Code. The accused preferred Criminal Appeal No. 108 of 1982 before the Sessions Court, Trivandrum. 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 and directing that set-off world be allowed under section 428 of the’ Code. The accused preferred Criminal Appeal No. 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 section 5(1) 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 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 on 26th October, 1982. Thereafter, on 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 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 P.Ws. 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 judical 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. 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 sections 380 , 454 and 461, Indian Penal Code. 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 taskof adjudginghis 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 over-emphasised. The U.S. Supreme Court has explained the same graphically in Raymond Hamline cafe1 thus: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by Counsel. Even the intelligent and educated layman has small and some times no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of Counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise in admissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of Counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. It that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect? * * * * The Court should consider the probable sentence, that will follow if a conviction is obtained. It that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect? * * * * The Court should consider the probable sentence, that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed.” 4. In M.H. Hoskot v. State of Maharashtra1 the Supreme Court had to consider the inability of the convicted accused to exercise his right of appeal for Court of legal assistance that is implicit in Article 142 read with Articles 21 and 39 of the Constitution. The Court has power to assign Counsel for him for doing complete justice. V.R. Krishna Iyer, J., observed: “The inference is inevitable that this is a State's duty and Government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reaonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable sum that the Court may fix when assigning counsel to the prisoner. Of course, the Court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the Court.” While summarising the legal position, the Court laid down as follows: “4. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so require, assign competent Counsel for the prisoner's defence, provided the party does not object to that lawyer. 5. 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. 6. 5. 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. 6. These benign prescriptions operate by force of Article 21 (strengthened, by Article 19 (1) ( d) read with sub- Article (5) from the lowest to the highest Court where deprivation of life and personal liberty is in substantial peril” [Italics suppled] 5. The decision in Menaka Gandhi's case2 opened the door wide for free legal services in our country. Article 21 of the Constitution provides guarantee against deprivation of life or personal liberty except according to procedure established by law. The Court held that “procedure” means fair and reasonable procedure with civilised norms. It is not merely some substance of a procedure. It must be procedure free from arbitrariness, unfairness or unreasonableness. The principle of reasonableness is an essential element of equality and non-arbitrariness pervades Article 14 and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in confirmity with Article 14. It must be right, just and fair, otherwise, it would be no procedure at all and requirement of Article 21 will not be satisfied. 6. The above view was further developed by the Supreme Court in Hussainara Khataon's case1. The Court said: “Now a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair and just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the Court's process that he should have legal services available to him………….The right to free legal services is …….. implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.” (Italics supplied) 7. In Khatri and others v. State of Bihar and others2 otherwise known as Bhagalpur Blinded Prisoner's case, the Supreme Court noted with regret that most of the States in the country did not take note of the earlier decisions of the Court and provide free legal service to persons accused of offences. The Court further stated: “We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but……..” The duties of Courts in this regard have been explained thus: “But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right…. It would make a mockery of legal aid if it were to be left to a poor, ignorant, and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail in its purpose. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on a account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State……We would, therefore, direct the magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the state. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the state. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the acccused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and he needs of social justice require that he should be given free legal representation……….” (Italics supplied) 8. Security proceedings under Chapter VIII of the Code of Criminal Procedure, were also held by the Supreme Court to fall within the sweep of legal aid doctrine in Gopalan Achari's case1. The Court gave a direction as follows: “We direct the trial Magistrates to discharge their duties, when trying cases under Article 110 , with great responsibility and whenever the counter-petitioner is a prisoner give him the facility of being defended by counsel now that Article 21 has been reinforced by Article 39A. Otherwise the order to bind over will be bad and void.” The above decision was followed by this Court in Gopalan Achari's case2 where I stated: “The Supreme Court has repeatedly pointed out that when a person in jail is brought before Court of law and if there is possibility of the proceedings before the Court resulting in his being deprived of his liberty and in his continuance in the jail, legal aid has to be given to him if he is not able to arrange for legal aid by himself. The Supreme Court has also repeatedly pointed out that if the State is not in a position to render legal aid to such an accused person in custody, whether it be on account of financial stringency or otherwise, the entire proceedings may be vitiated by such failure on the part of State to render legal aid,….The Magistrate will see to it that free legal aid is rendered to the petitioner in the conduct of proceedings.” 9. The free legal aid doctrine will equally apply in the case of an adolescent accused who is likely to be committed to Borstal School under the provisions of the Borstal Schools Act; confinement in Borstal School certainly involves loss of personal liberty over a period. 10. T.C. Criminal Rules of Practice in force in this State provide for legal aid to accused arraigned before Sessions Courts for offences meriting death penalty or imprisonment for life, provided they are unable to enagge counsel on their own. The benefit of legal aid under these rules would be available only to a section of accused in Sessions Courts and to none in other criminal Courts. It is understood that Kerala Criminal Rules of Practice are on the anvil; it is hoped that the Rules will be comprehensive enough to implement the directions of the Supreme Court. 11. Kerala State, it appears, was a trend setter in formulating a legal aid scheme. Kerala Legal Aid (to the Schedule Castes and Scheduled Tribes and to the Poor) Rules, 1957, came into force on 3rd September, 1957. Poor person has been defined as a person whose monthly income is not more than Rs. 100 per month. Rules did not provide for legal aid to poor persons in the grass root Courts such as II Class or I Class Magistrate's Courts, though provision has been made for legal aid in all Courts to member of Scheduled Castes and Scheduled Tribes. The Rules did not permit Courts, on their own, to grant legal aid to deserving persons; production of certificates from Officers of Revenue Department was insisted upon. The narrow confines of the scheme, the requirement of production of certificate from an outside agency and also the meagre financial provision contributed to the failure of the Scheme. 12. While so, in 1978, the State Government came out with a new legal laid by means of the Kerala (Legal Aid and Advice to the poor and conduct of their cases) Rules. The scheme resolves round the “public Counsel” appointed in each Taluk by the Government. Any lawyer with two years standing at the Bar could be appointed public Counsel. Legal aid could be extended with reference to proceedings in any Court to persons whose average monthly income from all sources does not exceed Rs. The scheme resolves round the “public Counsel” appointed in each Taluk by the Government. Any lawyer with two years standing at the Bar could be appointed public Counsel. Legal aid could be extended with reference to proceedings in any Court to persons whose average monthly income from all sources does not exceed Rs. 300 to members of Scheduled Castes and Scheduled Tribes and to those allowed to sue in forma pauperis. The Tahsildar of each Taluk is the authority to decide on grant of legal aid. Public Counsel are entitled to receive monthly remuneration of Rs. 350. Their administrative control vests in the Collectors of the Districts. The scheme has obviously not worked well, so much so the State Government, in a recent press release has called upon the Public to make use of the scheme. The scheme has several drawbacks. The status and emoluments of public Counsel has stood in the way of attracting experienced lawyers to the scheme. Public Counsel appointed, in many instances apparently do not inspire public confidence. The procedure for securing legal aid being bureaucratic, acts as a damper. The accused or the Court concerned has no say in the selection of the personnel. The beneficiary class is severely restricted. It is not known why control over public Counsel is vested in District Collectors. It is, to say the least, inexplicable and unhelpful. The absence of any role for the Court to play in the scheme, one fears, may lead to the eventual failure of the scheme. The scheme is not in tune with Section 304 of the Code. 13. Section 304 of the Code of Criminal Procedure, 1973, is a new innovation. It contains the seeds of an effective legal aid scheme. Sub-section (1) requires Sessions Courts to assign lawyers at State expense to defend unrepresented accused persons who have no sufficient means to engage lawyers. The section is silent on the aspect of legal aid to accused persons who are unable to engage Counsel on account of their being in judicial custody and as such does not cover the full ground cleared by the Supreme Court. The High Court has to make appropriate rules with previous approval of the State Government. Sub-section (2) permits the State Government to direct that sub-section (1) shall apply to any class of trials before other Courts. The High Court has to make appropriate rules with previous approval of the State Government. Sub-section (2) permits the State Government to direct that sub-section (1) shall apply to any class of trials before other Courts. It is understood that an appropriate notification has been issued by the State Government applying the provisions to all proceedings before all Magistrate's Courts. The directions issued by the Supreme Court can, in a large measure, be implemented by framing appropriate Rules, expeditiously. It is hoped that such Rules will be framed without any delay. It appears that such Rules may supplant the 1978 legal aid scheme. 14. It is the duty of the State to provide free legal services in appropriate cases. Courts are organs of the State and have to discharge their duties effectively. As it is, the schemes promulgated by the State Government in 1957 and 1978 are in force. Criminal Courts in the State can certainly make use of those schemes. The procedure of obtaining certificates or orders from Tahsildars is cumbersome and involves delay. Courts may not be in a position to hold up trial till the Revenue authorities act. In such cases, there is no reason why Courts should not pass orders directing Public Counsel to defend accused in particular cases. It is made clear that where Courts pass such orders, it is the duty of Public Counsel to appear and defend Counsel in such cases. It may be, in certain cases deserving of legal aid neither of the existing schemes may be applicable even in such cases, it is the duty of State to arrange legal aid and the duty of Counsel to provide the same. That is clear from the pronouncements of the Supreme Court. Financial constraint or administrative difficulty is no answer to the directions of Supreme Court. However, till such bottlenecks are removed, Courts cannot remain helpless; nor can Courts adjourn such cases in definitely. Courts ear-certainly request local legal aid committees if any and members of the Bar to come forward to defer d accused in deserving cases, still necessary arrangements are made by the State. I have no hesitation that the Bar will rise to the occasion and fulfil its social justice role. 15. In deserving cases legal aid has to be extended and the denial of the same may have to be looked upon with seriousness. I have no hesitation that the Bar will rise to the occasion and fulfil its social justice role. 15. In deserving cases legal aid has to be extended and the denial of the same may have to be looked upon with seriousness. This is not to say that in all cases and irrespective of all circumstances, Courts will necessarily have to arrange legal aid. It may be, in some cases the accused prefer to conduct the defence themselves. It may be, in some cases they prefer not to conduct any defence. It is only appropriate that the Courts enquire of the accused, particularly those who are in judicial custody, about these matters and where it is found that the accused require legal assistance, it should be made available to them. There may be occasions where, as the Counsel pointed out, absence of financial allotment stands in the way of legal aid. It is hoped that the authorities concerned will make all arrangements to see that necessary finances are made available to Courts. Even in the absence of such financial facilities, Courts are not to remain helpless spectators and send accused parsons to jail without the benefit of a fair trial. Courts could very well ensure that public Counsel take up the defence in deserving cases. In appropriate cases local legal aid committees or members of the Bar could be requested to lend their services arnicas curiae. 16. It is thus clear that there is as yet no effective arrangement by the State for provising legal aid in accordance with constitutional mandate as explained by the Supreme Court. It is the duty of the State to make the necessary arrangements. Anyscheme, in order to be successful, must accept the close involvement of Courts and the Bar in its working and the fact that Section 304 of the Code, has placed on the Courts, the duty of assigning a lawyer for the defence of the accused. A properly conceived legal aid scheme can only work in the back drop of Section 304 of the Code, and the Rules to be framed by the High Court. It is imperative that urgent steps are taken to formulate and implead a proper legal aid scheme; otherwise criminal Courts will find it difficult to discharge their constitutional duties. Criminal Courts may follow the directions given above till a proper scheme is formulated and implemented. 17. It is imperative that urgent steps are taken to formulate and implead a proper legal aid scheme; otherwise criminal Courts will find it difficult to discharge their constitutional duties. Criminal Courts may follow the directions given above till a proper scheme is formulated and implemented. 17. The offences involved in the present case are serious ones. The accused has been in judicial custody for a fairly long time before trial commenced. Obviously he is a person of no means. He pleaded not guilty and denied the truth of the material evidence, when he was being questioned in the trial Court. This was obviously not a case where he did not want to defend himself. This was a case where the accused did not have the means to defend himself and could not defend himself. In this view, I am of opinion that the conviction has to be quashed. At the same time, it has to be staed that the Sessions Court had no jurisdiction to reduce the period of committal in Borstal School to one year. Since conviction is quashed, I am not considering the legality of set-off allowed in the cast. 18. In the result, the judgments of the two Courts below are set aside. The case will go back to the file of the Additional Judicial First Class Magistrate, Trivandram, for fresh trial and disposal according to law after providing legal assistance to the accused. The R.C is disposed of in this manner. A copy of this order will be sent to the Chief Secretary, Government of Kerala for the High Court for appropriate action. M.O.M. ----- Judgments of Courts below set aside; case remanded.