- Apprentice Lawyer
Striking an empathetic note, the Kerala High Court recently called for society to re-orient the manner in which first-time offenders are treated so that the criminal justice delivery system can attain its ultimate aim of reformation.
Justice PV Kunhikrishnan also took to recounting the words of Malayalam poet Ayyappa Paniker to drive home this message. The opening remarks of his order reads:
"The renowned Malayalam Poet Ayyappa Paniker, start his famous Poem 'Moshanam', like this 'വവെറുവമമൊര മമമൊഷമൊവെമൊമയമൊവരെവന്നെ കള്ളവനെന്നു വെവിളവിചവിമല?'. [which means "Just because I have stolen a few things, why should you call me a thief?"]. The case of the appellant/accused in this case is almost like this."
The Court went on to narrate the remaining verses of the poem, translating the same thus:
"Whenever one steals something good, you people raise a clamour - for nothing and dub him a thief, a thief!
It is the fault of your laws,
Change you then your laws, I say, lest your laws should change you."
Justice Kunhikrishanan disagreed with the poem insofar as it indicated that there was no law favouring offenders. In this regard, he cited Section 360 of the Code of Criminal Procedure (CrPC) and Section 3 of the Probation of Offenders Act, which protects small-time offenders. It remarked,
"This Court does not want to contradict the great poet Ayyappapanicker, because poetry is the spontaneous overflow of powerful feelings. It takes its origin from emotion recollected in tranquility. But with great respect to the poet, I have to say that the concluding portion of the above poem is not entirely correct in the light of Section 360(3) Cr.P.C and Section 3 of Probation of offenders act 1958. The 1st offender in a theft case need not be sent to jail in all situations in the light of the above provisions."
However, the judge proceeded to underscore that such law would be of little use if society does not join in on reformative efforts.
"... the law is there, but society also should change by reforming first offenders. The criminal justice delivery system can attain its ultimate aim only with the help of society. To err is human. If a person commits some small mistakes, Section 360 Cr.P.C and Section 3 of the Probation of offenders Act will protect that person. But society should also protect him by not treating him as a criminal or thief", the Court said.
In this case, the appellant was accused by the prosecution of having stabbed two others upon being incensed by their treatment of him as a habitual thief. The trial court sentenced him to 3 years' rigorous imprisonment for offences under Section 308 (culpable homicide not amounting to murder) and Section 324 (causing hurt by using dangerous weapons).
On appeal, however, the amicus curiae apprised the Court that the prosecution had suppressed serious injuries inflicted on the accused as well as an FIR filed on account of the same.
The amicus, thereby, disputed the prosecution's version of events (that the accused had stabbed the others first on account of their treating him like a habitual thief). Rather, it was argued that the accused and his father had been attacked first, following which the accused acted out of self-defence.
The suppression of the accused man's injuries and the counter FIR proved fatal to the prosecution's case. The Kerala High Court extended the appellant the benefit of doubt and acquitted him.
Before parting with the matter, the judge also placed on record his appreciation for Advocate Arun Poomulli, who defended the appellant as amicus curiae with the assistance of Advocates Meera M and Biju Vigneswar. Advocates N Manoj Kumar and M Rishekesh Shenoy also appeared for the appellant. The State was represented by the Public Prosecutor and Government Pleader.