Judgment :- The house of a Professor was burgled around midnight on 8-9-1984. Two buckets and two vessels (Aluminium) besides one candle stand (made of brass) were stolen from that house. During investigation it was revealed that the burglary was committed by the two respondents by entering into the building after breaking the bare of a window of the house. The respondents were tried for the offences under sections 457 and 380 read with S. 34 of the I.P.C., but the trial court found them not guilty and acquitted them. Hence this appeal by the Public Prosecutor on behalf of the State of Kerala with special leave granted by this Court. 2. Although the Professor (P.W. 1) came to know of the burglary by next morning, he did not report the matter to the police. But the police came to know of it, when the respondents were interrogated by the Sub-Inspector of Police, Percorkada, who arrested them in connection with some other crimes, during the last week of November 1984. Hence the present case was registered against them and the stolen articles were recovered by the police from the shop of P.W. 3. After completing the investigation, the case was charge-sheeted. 3. The trial Magistrate did not rely on the testimony of P.W. 1 mainly for the reason that he did not report the matter to the police. The learned Magistrate has observed that "the police station is only 2.5 kms. away from the residence of P.W. 1; he is an educated gentleman working as Professor in the Mar Ivanious College, Nalanchira, Trivandrum; naturally being an educated man he had the duty to inform the matter to the police; he did not do so; the reason for the non-information to the police is best known to him alone". Another reason advanced by the learned Magistrate fir acquitting the respondents is that "as there was no counsel to defend the accused, the evidence of witnesses cannot be believed as such since they were not cross-examined". 4. There is much force in the contention of the Public Prosecutor that mere omission to report the matter to the police should not have been used as a ground to discard the testimony of the person from whose house the articles were stolen. One may refrain from going to the police station, even if he is an aggrieved person, due to different reasons. One may refrain from going to the police station, even if he is an aggrieved person, due to different reasons. Perhaps he may feel that the value of the stolen articles is not much to take the trouble to go to the police for reporting the theft. He may even think that chances of tracing the culprits are bleak and so no useful purpose will be served by reporting the theft to the authorities. Some persons may be very busy with their other work to find time to go to the police station, and they may forgo the loss sustained by them in the theft. These are only a few reasons due to which persons aggrieved may avoid going to the police station complaining of their grievances. It may be unrealistic to attach any stigma to the testimony of such persons merely on the ground of their failure to report to the police. In this case the nature of the articles stolen, as estimated by the trial court is only Rs. 400/-. The Professor would have considered it a small sum for the trouble to go to the police station in the midst of his busy schedule of work. The trial court was, therefore, in error in discarding his testimony on that ground. 5. It is necessary to consider the consequences of an accused not getting the services of a counsel to defend him in a criminal trial. If an accused who is enlarged on bail, engages a counsel at his own expense, the court has no duty to assist him in securing proper legal aid in his defence. But if the accused is in custody and he has not engaged a counsel, the court has to see that he is defended by a legal practitioner. Otherwise the whole trial will become a farce as far as he is concerned. Of course, if an accused refuses to have the services of a counsel, court cannot thrust it on him. 6. In this case the accused were in custody and a public counsel (appointed by the State Government) was asked by the court to appear and defend them in the trial. The Magistrate points out that the said public counsel did not appear, as the Government had already terminated his service. 6. In this case the accused were in custody and a public counsel (appointed by the State Government) was asked by the court to appear and defend them in the trial. The Magistrate points out that the said public counsel did not appear, as the Government had already terminated his service. According to the learned Magistrate "since the accused had been in custody for a long period, this court could not wait for the service of a public counsel; therefore in fact these accused are not defended by any advocate." 7. If a serious case has to end in acquittal of the accused at the trial stage itself merely on account of want of a public counsel to defend him, administration of criminal justice will become a mockery. But no accused shall suffer on account of his inability to get a legal practitioner to defend him. By the 42nd amendment to the Constitution, it is now a directive principle of a State policy to provide free legal aid, by suitable schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It is so provided in Art. 39A of the Constitution. Free legal assistance at State cost is now treated as part of the fundamental rights of a person accused of an offence which may involve jeopardy to his life or personal liberty, if he is unable to engage a lawyer due to his indigence, or unable to secure legal services on account of other reasons, (Vide M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548) : (1978 Cri LJ 1678). The earlier policy was to confine legal aid only to those persons who could not secure legal services on account of poverty or indigence. But the Supreme Court, through its interpretative power, extended the scope of providing free legal aid to those who are in "incommunicado situation". This was sounded by the Supreme Court as a mandate in Hussainara Khatoon's case, AIR 1979 SC 1369: (1979 Cri LJ 1045). But the Supreme Court, through its interpretative power, extended the scope of providing free legal aid to those who are in "incommunicado situation". This was sounded by the Supreme Court as a mandate in Hussainara Khatoon's case, AIR 1979 SC 1369: (1979 Cri LJ 1045). The position was improved further when the Supreme Court in Khatri v. State of Bihar, AIR 1981 SC 928 : (1981 Cri LJ 470) directed all the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer that he is entitled to free legal services at the cost of the State. Again, the Supreme Court in Suk Das v. Arunachal Pradesh, AIR 1986 SC 991 : (1986 Cri LJ 1084) reiterated the aforesaid position and further stated that free legal assistance at State cost is the fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and that right is implicit in the requirement of reasonable, fair and just procedure prescribed by Art. 21 of the Constitution. "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", observed the Supreme Court. 8. The piston which emerges from Arts. 21 and 39A of the Constitution and various decisions rendered by the Supreme Court on this subject is that no person accused of any offence, whose personal liberty is in jeopardy, shall be denied of free legal aid at State cost if he is not in a position to engage a lawyer on his own. Poverty and indigence are not the only conditions on which a person accused of an offence is entitled to have free legal aid at State cost. Persons whose means of communication to the outside world remain snapped on account of incommunicado situation are also entitled to the aforesaid right. 9. Then the question is whether a Magistrate or a Sessions Judge can proceed with the trial without satisfying that free legal aid is provided to such an accused person. Persons whose means of communication to the outside world remain snapped on account of incommunicado situation are also entitled to the aforesaid right. 9. Then the question is whether a Magistrate or a Sessions Judge can proceed with the trial without satisfying that free legal aid is provided to such an accused person. The fact that a public counsel appointed by the State did not turn up or that the services of the public counsel were terminated by the State or even that no public counsel was appointed or no scheme for legal aid was made by the State, cannot be regarded as valid excuses for denying the right mentioned above. At the same time the criminal courts have a public accountability and therefore it is not advisable to suggest that the courts should proceed to acquit all such accused persons merely on the found that they did not get free legal aid. Otherwise, it may tend to encourage accused person to some how a void a counsel to defend him, if he is sure of an acquittal as the nature consequence of facing the trial undefended by a counsel. Criminal court has the duty to see that such accused persons are provided with free legal aid and at the same time the court has to remind itself of its public accountability as a guardian or sentinel of the administration of criminal justice. Is there a way out, when no public counsel is available to defend the accused ? The State Government could have provided an effective solution to this problem by issuing a notification as envisaged in sub-section (3) of S. 304 of the Code of Criminal Procedure, making the provisions of sub-secs. (1) and (2) applicable to all criminal cases in which accused are in custody. But I am told that no such notification has, so far, been issued. 10. In order to ensure a fair trial for such accused persons, and in order to safeguard the interest of administration of criminal justice, a practical way has to be evolved in the present set up. But I am told that no such notification has, so far, been issued. 10. In order to ensure a fair trial for such accused persons, and in order to safeguard the interest of administration of criminal justice, a practical way has to be evolved in the present set up. It is suggested that when the public counsel does not conduct the defence even after the court calls up on him to do so, or where no public counsel is appointed by the State or where no scheme has been framed in that behalf the court shall appoint a counsel of its choice to defend that accused person or persons. This suggestion can be followed by the criminal courts in appropriate cases. In such contingencies, the court shall, at the conclusion of the trial, fix a sum, which the court considers just and reasonable, towards service charges payable to the counsel concerned in that particular case. While fixing the sum the court shall follow, as far as possible, the rates of fees prescribed by Rules made (if any) under S. 304(2) of the Code of Criminal Procedure. The State Government is bound to pay the said sum to the said counsel, who may, if necessary, resort to appropriate legal proceedings for realisation of the amount from the State Government. This seems to be the practical solution to the problem created by absence of public counsel when the court finds that a particular accused is in such a position or in such circumstances that free legal aid has to be provided to him. In this case, an opportunity could have been afforded, by remanding this case to the trial court, to provide legal aid for the respondents. But I think that the exercise will not serve any useful purpose in this case. The respondents were involved in other cases also, and they remained in custody as under trial prisoners and continued to remain in custody during the trial of other cases. In such circumstances, a remand of this case for fresh trial would only be to their prejudice. Therefore, I dismiss this appeal. Appeal dismissed.