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Emperor Vs. Mahomed Kasim Gulam Mohideen - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 247 of 1946
Judge
Reported inAIR1947Bom388; (1947)49BOMLR148
AppellantEmperor
RespondentMahomed Kasim Gulam Mohideen
Excerpt:
criminal procedure code (act v of 1898), sections 439, 561a, 412-trial held on sunday-void trial-plea of guilty-high court-revision jurisdiction-inherent jurisdiction.;the trial of a case held on a sunday, after overruling the request of the accused to give him an opportunity to secure legal aid and ending in a plea of guilty by the accused, is not a fair trial, and can be set aside by the high court either under section 439 of the criminal procedure code, 1898, or under its inherent jurisdiction preserved under section 561a of the code;emperor v. baban daud (1915) 17 bom. l.r. 918, followed. - - the accused) has complained that he was improperly tried on a sunday, and that if he had not been so tried, he would have been in a position to engage a pleader and to defend himself properly......of november 12, 1945, punishable under rule 81(4) of the defence of india rules, 1939, the learned magistrate fined the accused us. 100, and in default to suffer rigorous imprisonment for four months and ordered the confiscation of certain grains of the value of rs. 1,351.2. the district magistrate's order mentioned in the charge is in respect of the declaration of stocks of grain held by any person and the alleged offence was a breach of that order. the accused on being convicted went in appeal to the learned sessions judge at ratnagiri, and he rightly came to the conclusion that no appeal lay to him by virtue of section 412 of the criminal procedure code, because the accused had pleaded guilty. the powers of this court are of course wider than those of a sessions judge and we.....
Judgment:

Leonard Stone, Kt., C.J.

1. This matter comes before us in revision from an order passed by the learned First Class Magistrate at Khed in the Ratnagiri District on January 4, 1946, by which on a charge of breach of the District Magistrate's order No. WS/R1758 of November 12, 1945, punishable under Rule 81(4) of the Defence of India Rules, 1939, the learned Magistrate fined the accused Us. 100, and in default to suffer rigorous imprisonment for four months and ordered the confiscation of certain grains of the value of Rs. 1,351.

2. The District Magistrate's order mentioned in the charge is in respect of the declaration of stocks of grain held by any person and the alleged offence was a breach of that order. The accused on being convicted went in appeal to the learned Sessions Judge at Ratnagiri, and he rightly came to the conclusion that no appeal lay to him by virtue of Section 412 of the Criminal Procedure Code, because the accused had pleaded guilty. The powers of this Court are of course wider than those of a Sessions Judge and we have the power in a proper case either under Section 439 of the Criminal Procedure Code or under our inherent jurisdiction to quash a conviction and sentence if the ends of justice so demand.

3. What happened in this case was as follows. The accused was arrested at 11 o'clock on Sunday December 30, 1945, and he was put up before the Magistrate on the very same day and the learned Magistrate then proceeded to take the evidence of the police patil and two panchas with regard to the alleged illegal retention of grains without a due declaration having been made. It appears from the evidence which we allowed to be taken in this Court of the accused's brother, who was present throughout the proceedings, that what occurred before the learned Magistrate was that the accused asked the Magistrate to give him time. He said: 'We are helpless, but we are prepared to defend the case'. It seems that the learned Magistrate did not accede to that application but continued to hear the ease, and accordingly the accused had no opportunity of seeking legal aid. Having proceeded with the case, the Magistrate then formulated the charge which he read out to the accused and the Magistrate asked 'Do you plead guilty or not guilty', and then the evidence of the witness (the accused's brother) continues: 'My brother said he pleaded guilty, that it was the first offence and that he should be given pardon'. He was then asked: 'What did the Magistrate say ?' He replied 'The Magistrate did not reply anything. He closed the case and took my brother's signature', and, as his evidence continues to show, the accused was told to call at Khed, which was the taluka headquarters, during the course of the next week to hear the result and the result was in fact announced on January 4 when, as I have said, the accused was fined Us. 100.

4. The points taken by Mr. Walawalkar on behalf of the accused are that in spite of the plea of guilty this was not a fair trial for two reasons, first because the application for an adjournment in order to seek legal aid was not acceded to, and, secondly, because the whole of the trial took place on a Sunday.

5. For the Magistrate to try a case on a Sunday, does not make the trial a nullity, but it is an irregularity because it is in breach of the directive contained in the High Court Circulars which are issued by this Court to Magistrates, and Mr. Walawalkar relied upon the case of Emperor v. Bahan Daud : (1915)17BOMLR918 in which the circumstances are extremely similar to those in the case before us. In delivering judgment in that case Mr. Justice Shah said this (p. 919) :-

In the petition before us he (i.e. the accused) has complained that he was improperly tried on a Sunday, and that if he had not been so tried, he would have been in a position to engage a pleader and to defend himself properly. It is not argued before us that the trial held on a Sunday is illegal. It seems to me, however, that having regard to Circular No. 37 of the Criminal Circulars of this Court, ordinarily it is not proper to hold a trial on a Sunday. In the present case it is not suggested that there was any urgency or any special circumstance for adopting this unusual course. I am, therefore, of opinion that under the circumstances of this case it is not proper for the Magistrate to have tried the petitioner on a Sunday.

And a little later in his judgment the learned Judge says (p. 919) :

If the trial had not been held on the 17th January (that is to say on the Sunday), it is probable that on the following day the accused would have been in a position to engage a pleader and to make such arrangement for his defence as he might have thought proper. Under these circumstances it seems to me that there has been an irregularity in the procedure which has prejudiced the accused, and that the accused cannot be said to have had a fair opportunity to defend himself.

6. It seems to us that the remarks of Mr. Justice Shah in that case are extremely pertinent to the circumstances of the case before us. Here also the trial was held on a Sunday and the application for an adjournment for the obvious purpose of getting legal aid was refused and it was in those circumstances that the accused pleaded guilty, coupling his plea with a prayer for mercy, as this was a first offence. In our judgment this was not a fair trial, and in exercise of our powers we think it right to set aside both the conviction and sentence and to order a retrial of the accused. The fine which has been paid will be returned. The grain will remain in the hands of Government pending the result of the new trial. The trial must take place before a Magistrate appointed: by the District Magistrate, but he must be a Magistrate other than the one who tried the case.


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