C.B. Bhargava, J.
1. This is an application in revision by Saiyad Afjal Hussain, Chand Mohammed, Budha and Likhmiram against their convictions under Section 5 of the Essential Services Maintenance Ordinance, 1960. Each of them was sentenced to two months' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to further rigorous imprisonment for one month by the Sub-Divisional Magistrate, Ratangarh. The learned Additional Sessions Judge, Churu has upheld the convictions. They were all employees in the Railway Department. The sentence beyond that already undergone by them has been remitted by the orders of the Governor of Rajasthan and they have also been reinstated in their posts. The revision application was pressed only on the ground that the stigma of convictions would always remain in case it was not set aside.
2. It is well-known that the employees of the Indian Government in the Essential Services had put forward certain demands, which not having been met, they gave notice to go on strike on a certain date. In order that the threatened strike may not impede the essential services and the normal life of the community, an Ordinance (No. 1 of 1960) known as the Essential Services Maintenance Ordinance, 1960, was promulgated by the President. The charge against the petitioners was that on the night intervening 11th and 12th of July, 1960, at about mid-night they instigated other railway employees to take part in the strike which was illegal and punishable under Section 5 of the Ordinance. They were arrested by the police and remained in its custody till a challan was submitted against them before the Sub-Divisional Magistrate, Ratangarh, on 12th July, 1960 at about 6 p.m. at his residence. The learned Sub-Divisional Magistrate came to the court from his residence, held their trial which began at about 7 p.m. and ended at 8-30 p.m. in the conviction of the petitioners. Petitioners are said to have pleaded guilty to the charge on which they were convicted. Against their conviction, the petitioners preferred an appeal before the learned Additional Sessions Judge, Churu, and alleged that they had not a fair trial inasmuch as it was held after the court hours at such time that they could not procure any legal assistance. It was also alleged that the confessions made by them before the Sub-Divisionat Magistrate were not voluntary. It was further alleged that the learned Sub-Divisional Magistrate was himself on duty at the railway station when the petitioners were arrested and had personal knowledge of the facts and as such, he should not have himself tried the case. In support of their allegations they filed affidavits in that Court.
3. The learned Additional Sessions Judge called a report from the Sub-Divisional Magistrate regarding the allegations contained in the affidavits. The learned Sub-Divisional Magistrate admitted in his report that the challan was submitted against the petitioners at his residence at about 6 P.M. and the petitioners were ordered to be taken to the court room by him. He also admitted that the trial concluded at about 8-30 P.M. He stated in the report that the petitioners did not make any request to have any legal assistance. He denied that any pressure or undue influence was brought to bear upon the petitioners in order that they might confess their guilt. He explained that the trial was held at night because he had been appointed by the District Magistrate, Churu, as a Duty Magistrate. The learned Additional Sessions Judge did not agree with the contentions of the petitioners and rejected their appeal.
4. In this revision application, the contentions of the learned counsel for the petitioners are:
(1) that the trial which was held after the usual court hours had the effect of depriving them of legal assistance which right is guaranteed under Article 22 of the Constitution of India. The trial was, therefore, vitiated.
(2) that the Essential Services. Maintenance Ordinance, 1960 was a temporary measure and had expired when the appeal of the petitioners was heard by the learned Additional Sessions Judge and hence their conviction could not have been maintained after the expiry of the Ordinance;
(3) that the Essential Services Maintenance Ordinance was unconstitutional being violative of the fundamental rights guaranteed under Article 19(1)(g) and Article 23 of the Constitution of India.
5. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the rights to consult, and to be defended by a legal practitioner of his choice.
6. The petitioners in this case were arrested on the night intervening 11th and 12th July, 1960, and till a charge sheet was submitted against them remained in the custody of the police. They were produced before the Sub-Divisional Magistrate at his residence, who ordered them to be taken to the court room where he himself proceeded after some time. The trial is alleged to have begun at 7 P.M. and concluded at about 8-30 P.M. resulting in the conviction of the petitioners. At the time the trial was held, it was not possible for the petitioners to communicate with any lawyer, or to procure legal assistance for obvious reasons. The explanation of the learned Sub-Divisional Magistrate for rushing through the trial at unusual hours is not satisfactory. Why could the case be not adjourned to the next day is not clear from the explanation. Trial of criminal cases by the courts should, as a rule, be held during the court hours so that the accused persons may have opportunity to avail of legal assistance. Any departure from this rule is highly objectionable and can be justified only on exceptional grounds. Expeditious disposal of criminal cases may be commendable but the commencing of a trial at night and hurrying through it in the manner done by the learned Sub-Divisional Magistrate in the instant case can in no circumstances be countenanced. The explanation of the learned Sub-Divisional Magistrate cannot bear any serious consideration. I fail to see how immediate disposal of the case was necessary. The petitioners were produced before the Magistrate from the police custody and had no opportunity to contact any lawyer or to secure legal assistance for their defence. Under the circumstances their plea of guilty cannot be regarded as of voluntary volition on their part. The manner in which the trial was held deprived them of their right to have legal assistance in their trial and thus resulted in failure of justice.
7. In In re Arunachala Goundan, AIR 1948 Mad 492, the circumstances in which the petitioners were convicted were that a charge sheet was filed before a Stationary Sub-Magistrate, Namakkal or, 1st April, 1947 and the petitioners were produced from police custody in the Sub-Magistrate's Court late in the same evening. The trial started after 5 P.M. and ended at about 9 P.M. The accused were convicted on their plea of guilty. In revision it was contended that the undue haste and precipitancy with which the entire proceedings were gone through resulted in a serious miscarriage of justice as the accused had no opportunity to defend by availing the assistance of counsel. The learned Judge observed.
'I am unable to hold that the action of the trial Court is, in any way, justified. Courts of Criminal law are expected to function without any semblance of police or prosecution interference and even if, as the learned appellate Magistrate finds, the case was important and urgent to the prosecution, the Sub-Magistrate was not within his powers in beginning the trial after court hours. Whether the accused persons protested or not is not a matter which is material. At any rate, for the purpose of the present case, I am prepared to take it that the accused did not ask for time to engage counsel or protest against the hasty manner in which the trial was proceeded with. Even then, it seems to me that the trial should not have been conducted in the early part of the night as has now been done....... Except under very abnormal and unusual circumstances, no Court is justified in taking up and proceeding with the trial of, a criminal case after the usual court hours. Lawyers are not expected to attend Court at such unusual times and parties or witnesses cannot be compelled apart from their express desire, to attend Court out of normal hours. It may very well be and is proper that a case which has been started during the working hours of the day, may be prolonged after office hours under exceptional conditions but that would not justify a court in initiating a trial or enquiry long after 5 P.M. and continuing the same at a stretch till 9 P.M.
Such being the case, the entire proceedings have been. Vitiated. The accused have not had a fair or proper trial and in these circumstances the plea of guilty cannot be accepted at its face value.'
The situation in the present case is very similar and the above observations apply with appositeness.
8. In Hansraj v. State, AIR 1956 All 641 accused who were licensed porters offered satyagraha on 29th March, 1955, at a railway station to redress their grievances, they were arrested for offences alleged to have been committed by them and were put into prison. Two sets of these persons were tried within the jail precincts on the 30th of March, 1955, and the other two sets were tried on the 31st of March, 1955. The trial was held under the summary provisions of the Code. These persons were found guilty and convicted. No information was given to the accused persons about the date of the trial, nor were they told that under Article 22 of the Constitution and Section 340 of the Code of Criminal Procedure they had a right to consult a legal practitioner and to be defended by him. Nor were they told that if they made any statements which were damaging to their interest the same statements may be used against them. It was held that the fundamental right given to the applicant under Article 22 of the Constitution and the right further conferred upon them, though similar in nature, under Section 340 of the Code of Criminal Procedure, had in a sense been denied to them when the prosecution adopted such a hot-haste in having the trial held of two batches of these persons on the 30th of March, 1955, and of another two batches on the following day within the jail precincts. The trial was therefore, vitiated, not because it was held in the jail precincts but because the accused Here denied the fundamental right which they had under Article 22 of the Constitution and the rule envisaged in Section 340 of the Code of Criminal Procedure.
9. In In re Llewelyn Evans, AIR 1926 Bom 551, which was a case under Section 340 of the Code of Criminal Procedure, it was observed by Madgavkar, J. that:
'If the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case, and to lay its evidence fully, freely and fairly, before the court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice--advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very State which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance.'
10. In my opinion, in the present case the trial was rushed through in such a manner that the petitioners were deprived of their right to have legal assistance and this resulted in a miscarriage of justice. The confession of guilt said to have been made by the petitioners, in these circumstances, cannot be regarded as of their free will. The present case furnishes a striking instance where the administration of justice has suffered because one person combined in himself both executive and judicial duties. There was no justification for holding the trial late in the evening on the ground that the Magistrate was pre-occupied with his executive duties. The trial of the petitioners was, therefore, vitiated and their convictions cannot stand.
11. As a result, a re-trial should have been ordered but as the Essential Services Maintenance Ordinance, 1960, has already expired, it need not be done now. In view of this finding, it is not necessary to discuss the other objections raised by the learned counsel.
12. The revision application is, therefore, allowed and convictions and sentences of the petitioners are set aside.