S. Padmanabhan, J.
1. This case reveals the sufferings of a poor Tamilian girl aged 19 right from the midnight of 14-10-1981. The subject-matter of the case is a strip of land at Chittoor in between a temple and the residence of one Mahalinga Iyer. It is by the side of a public road having Bus traffic. The girl was waiting by the side of the road for catching bus. The Sub-Inspector of Police, Chittoor Police Station, saw her at 11.30 p.m. in the above land, which he described as the courtyard in between the temple and the residence mentioned above. It is not specified in the petty charge whether the land is temple property or attached to the residential building of Mahalinga Iyer. Anyhow, according to the Sub-Inspector, she was there ''without reasonable excuse'. The petty charge was laid before the Judicial Magistrate of the II Class, Chittoor, alleging commission of offence punishable under Section 47 of the Kerala Police Act.
2. Revision petitioner's case is that while she was waiting there for bus, she was taken to custody, kept in the police lockup and produced before the Magistrate the next day. But the police version is that she was not taken to custody and was only directed to appear before the Magistrate the next day.
3. Section 47 of the Kerala Police Act reads thus:
47. Penalty for wilful trespass Whoever without reasonable excuse wilfully enters into or on any dwelling house or other building or on any land or ground attached thereto or on any boat, vehicle or vessel, or on any ground belonging to the Government or appropriated to public purposes shall be liable on conviction to imprisonment for a term not exceeding six months or to fine not exceeding five hundred rupees or to both.
To the extent relevant for the purpose of the present case for constituting an offence under Section 47 of the Kerala Police Act, there must be wilful entry without reasonable excuse into or on any land or ground attached to any dwelling house or other building. Necessarily the section must have some purpose behind it. It may not be intended to punish a person who is waiting in such a place for some lawful purpose. The words 'without reasonable excuse' and 'wilfully enters' indicate that something more than mere presence or entry is necessary for the purpose of constituting the offence. So also, it is necessary that the wilful entry without reasonable excuse must be in some land or ground attached to a residential building or other building. The Sub-Inspector has not taken care to ascertain whether these ingredients are there. There is nothing to indicate that the petitioner was not able to give any reasonable excuse even though such an expression has been used by the Sub-Inspector in the petty charge. So also he has not cared to ascertain whether the land in which the petitioner is alleged to have been standing was land or ground attached to a residential building or other building. Even going by the petty charge no offence under Section 47 of the Kerala Police Act is attracted.
4. Taking cognizance of an offence is a judicial act. Cognizance has to be taken after due application of the judicial mind in order to satisfy whether the allegations, if taken as true, will amount to an offence. Had the Magistrate applied his judicial mind to the allegations in the petty charge, he would not have taken cognizance of the offence. So also he would not have had an opportunity to state the particulars of the offence in order to ask the revision petitioner whether she is pleading guilty or not. To take cognizance of an offence on the basis of a charge which does not disclose an offence is an illegality. In my opinion, the Magistrate acted mechanically without applying his mind to the allegations in the charge. As I have already stated, the allegations do not constitute an offence, much less an offence under Section 47 of the Kerala Police Act.
5. I have earlier stated that the petitioner is a Tamilian girl. She hails from a Tamil speaking area and is not quite conversant with Malayalam. Admittedly, a copy of the charge given to her was in Malayalam. The substance of the accusation read over to her was also in Malayalam. There is nothing to indicate that she was able to read and understand the charge or the particulars of the offence put to her. It is not recorded by the Magistrate that the particulars of the offence were explained to her in a language that she could understand. The plea of guilty has to be recorded only after satisfaction that the accused has fully understood the accusations levelled against her. From the statement of the revision petitioner recorded by the Magistrate, it is seen that the revision petitioner is an illiterate girl. She was not even able to put her signature. Her thumb impression alone was taken. So also it is necessary that the Magistrate has to record the plea of the accused as nearly as possible in the words of the accused. In this case, the plea has been recorded only in Malayalam. In this connection, the provisions of Section 252, Cr. P.C., has been violated. It cannot be taken that the provisions of Section 252 is an empty formality.
6. Whenever and wherever an accused pleads guilty, conviction is not something that has to follow automatically as a matter of course. Even in such a case, the Magistrate has the discretion under Section 252 of the Code. The Court has a duty to consider whether the plea of guilty should be the sole basis on which conviction will have to rest. The Court has got the discretion to consider whether conviction on the basis of the plea alone is warranted, especially when the plea comes from an illiterate person. The Court is having the duty to consider whether the plea was after fully understanding the accusation, whether it was voluntarily made without any extraneous influence or whether it was after understanding the seriousness of the consequences. In spite of satisfaction of all these matters, the Court has the further duty, before entering conviction on the plea, to consider whether the accusations on the basis of which the plea was made will constitute an offence which requires to be punished. The reason is that the plea of guilty may amount at the maximum only to an admission of the existence of state of affairs put to her. It may happen that the accused may not be aware that an admission of the entire facts put to her will expose her to penal consequences. Therefore before entering conviction on plea of guilty the Court will have to apply its judicial mind to consider whether any offence and if so what offence the plea of guilty will constitute. To act mechanically on the basis of the charge and the plea of guilty is not what is expected.
7. In State v. Gopinath Pillai 1978 Ker LT 779 : 1980 Cri LJ NOC 39 Subramonian Poti, J. (as he then was) had occasion to observe:
It is only when there is genuine plea of guilty made freely and voluntarily that the bar under Section 375 of the Code would apply. There may be instances where the facts averred or pleaded by the prosecution do not amount to an offence. Pleading by the accused that he is guilty does not preclude him from filing an appeal against the conviction. That is because his plea may amount only to the admission of facts averred by the prosecution which, even if true, may not be sufficient to constitute an offence.
Considering the provisions of Sections 251 and 252 of the Code, it was further held in that case:
Section 252 provides that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Evidently the conviction of an accused on a plea of guilty is not automatic and does not follow merely because such a plea is made. Despite the plea the court has to judicially consider whether the conviction would be warranted and that is where there is scope for exercise of the discretion of the Magistrate. Various factors may have bearing on whether, despite the plea by the accused that he is guilty, he has to be convicted or whether the case has to be tried and disposed of on the evidence that may be taken at the trial. The duty cast upon a court to decide whether the plea by the accused that he is guilty should be the sole basis for conviction is a solemn duty, the exercise of which calls for due care and caution. If the Magistrate has reason to feel that the plea entered by the accused is not voluntary he has to probe further into the matter. He is to act upon such plea if he is fully convinced that the accused pleaded guilty of his own free will. Equally relevant is the case where a court has reason to feel that the accused may not have understood the charge fully, the facts as well as the inference drawn from the facts stated in the charge. It is possible that the accused may not be properly advised because of the situation in which he is placed. May be he entered plea of guilty assuming that the consequences may not be serious. In short, except in a case where the court feels that the plea of guilty made by the accused was made under circumstances where he was well advised as to what he was pleading and was well aware of the consequences of his plea, the court may not be justified in acting upon such plea and convicting the accused without any evidence.
8. In my opinion, the petty charge does not disclose any offence at all. Further there is nothing to show that the particulars of the accusation were put to the revision petitioner in a way understandable to her. Her plea has also not been recorded in the manner required The judgment of the Magistrate does not show that the revision petitioner understood the accusations or whether she was aware of the consequences before making the plea. Even after accepting the plea of guilty and entering conviction, it is necessary for the Magistrate to hear the accused on the question of sentence before exercising the sentencing discretion. That provision is not intended as an empty formality. The accused may have relevant grounds to be brought to the notice of the Court in the matter of sentence. They could exercise that right only if they are made aware of the fact that such a right is there. The accused will have to be asked to state reasons, if any, relevant for deciding the sentence. Unfortunately, this provision is not often being followed.. In this case also, the judgment does not show that the revision petitioner was heard on the question of sentence. On the question of sentence, what the Magistrate has stated is only 'I do not consider to extend the provisions of the Probation of Offenders Act in this case'. From this it may appear that the Magistrate went under the impression that it is well within his arbitrary powers to extend the provisions of the Probation of Offenders Act or not. The Magistrate has not assigned any reason for not applying the provisions of the Probation of Offenders Act. In this case, the accused was only aged 19 and she is a girl. The offence alleged is very minor and technical in nature. What Section 6 of the Probation of Offenders Act provides is that when the person found guilty is below the age of 21 and when the offence conies within the descriptions mentioned in the section, the accused shall not be sentenced to imprisonment unless the court is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Sections 3 and 4 of the Act. It follows that so far as this case was concerned, application of the provisions of the Probation of Offenders Act was the rule and refusal was only the exception for which the Magistrate had to assign reasons. He has not mentioned about the circumstance of the case, the nature of the offence or the character of the offender which forced him to the decision that it may not be desirable to deal with the revision petitioner under the provisions of that Act. The decision of the Magistrate in this connection is highly arbitrary and violative of the provisions of Section 6. Without assigning any reason, the Magistrate awarded simple imprisonment for one month. It has to be noted that the revision petitioner was not. represented by a pleader.
9. Against the conviction and sentence, the revision petitioner filed an appeal before the Sessions Judge, Palghat, and it was made over to the Chief Judicial Magistrate, Palghat for disposal. It was numbered as Crl. A. 34 of 1981. On 28-1-1982, when the Criminal Appeal came up for hearing, the appellant was absent and the pleader reported no instructions. The learned Chief Judicial Magistrate dismissed the appeal for default stating 'Today (28-1-1982) when the case was taken up for hearing, the counsel for the appellant reported no instructions, and the appellant was absent. Hence, the appeal is dismissed.'
10. The Chief Judicial Magistrate has gone under the impression that a criminal appeal, especially against a conviction including sentence of imprisonment, is something which could go for default in the absence of the appellant or the advocate by a mechanical summary dismissal without applying his mind on the merits. Section 386 of the Cri. P.C. provides how an appeal has to be disposed of. If the appellant or his pleader or the Public Prosecutor does not appear, it is left to the discretion of the Judge or the Magistrate either to adjourn to hearing or proceed to dispose of the appeal. It is not obligatory that when the appellant or pleader or even the Public Prosecutor is absent, the Court should compulsorily adjourn the hearing. If they are present and ready to argue the appeal the court will have to hear them. Even if they are absent and the Court decides to proceed with the appeal without hearing them, the decision could only be on the merits. There is no question of summarily dismissing an appeal for default. In such a case, the court will have to peruse the records including the evidence and consider whether there is any merit in the appeal and whether the conviction and sentence are justified. Approach to the criminal court is for vindication of justice and the object is bringing the offender to justice. Punishment involves infringement of fundamental rights of personal liberty and freedom of movement. From the way in which the Magistrate has dealt with the question of sentence, it may appear that he was dealing with a serious crime. Reformative approach in the exercise of sentencing discretion has been lost sight of. Even the fact that he was dealing with an illiterate young girl regarding a minor offence was completely ignored by the Magistrate. All these aspects and the further question whether the charge amounts to an offence were matters that had to be considered by the Chief Judicial Magistrate on the merits in the appeal. When a person pleads before the appellate Court that the conviction is wrong and the sentence is not correct, it is the duty of the appellate Court to consider those allegations on the merits irrespective of the presence or absence of the party, pleader or Public Prosecutor. Decision on the merits alone is contemplated. Even at the stage of admission, the Court could dispose of the appeal only on the merits, probably with the difference at that stage that, in the absence of the appellant or pleader the Court may be bound only to peruse the available records which may be the appeal memorandum and the judgment or order alone. A summary dismissal, as was done by the Chief Judicial Magistrate, is an illegality. A summary dismissal, even at the stage of admission, will vitally affect the convicted appellant and in a fit case that decision also may be liable to be taken up in appeal. Though at that stage in deciding whether the appeal is liable to be admitted or dismissed, a summary decision may not be violative of any statutory provision, a decision on the merits will avoid chances of overlooking errors and illegalities. A justiciable decision will have to be a speaking one always. The higher court must have an opportunity to see whether the appellate jurisdiction was properly exercised for the purpose of considering the case on the merits. A decision on the merits will be possible only if the reasoning and findings in the judgment are considered in the light of the records including the entire evidence. When the court proceeds to dispose of the appeal in the absence of the appellant, the pleader or the Public Prosecutor, the court will have to take up the responsibility of looking into the papers for the purpose of ascertaining whether any denial of justice is there. If the pleader or the Public Prosecutor are present, they will have to be heard. If at all any authority is required for these positions, it could be had from the decision in Prabhakaran Nair v. State of Kerala : AIR1960Ker314 . In that decision it was held:
Even in case where an appeal filed under Section 419, is to be dismissed summarily, the provisions of Section 421 are to be followed. When an appeal is admitted and notice is issued to the Public Prosecutor the Court can thereafter dismiss the appeal only in accordance with the provisions of Section 423. Even if the appellant or his pleader is absent the Court cannot dismiss the appeal summarily. It must go through the record and write a judgment and dispose of the appeal on the merits in accordance with Section 367. The appellate judgment must be quite independent and stand by itself without being merely supplementary to the judgment of the trial Court.
11. Even though that decision was rendered under the provisions of the old Code, the principles applicable are the same under the new Code also. This aspect of the matter has been considered in detail by the Supreme Court in a subsequent decision in Shyam Deo Pandey v. State of Bihar 1971 (1) SCWR 718 : 1971 Cri LJ 1177. Therefore what the Chief Judicial Magistrate has done in this case is definitely an illegality.
12. On account of the actions and inactions of the police as well as the Courts, an innocent girl has been subjected to unnecessary torture and harassment for years. I do not think that a remand of the case is necessary in the circumstances. A remand will only result in continuance of the torture for a further period. From what I have earlier stated, it is evident that she has not committed any offence at all.
13. The Criminal Revision Petition is therefore allowed. The conviction and sentence are set aside. The petitioner is found not guilty and she is acquitted.