M.B. Sharma, J.
1. As the point involved in all the three revision petitions are common they are being disposed of by a common order.
2. First I come to the facts of the three cases under which the three revision petitions arise and thereafter after narrating the points involved will proceed to discuss and decide them.
3. S.B. Criminal Revn. No. 233 of 1980 arises out of Criminal Original Case No. 579 of 1979 of the Court of Judicial Magistrate, First Class (Roadways), Jodhpur. The petitioner Jagmala Ram was a bus conductor in the employment of the Rajasthan State Road Transport Corporation (for short, 'the Corporation' hereinafter) and at the relevant time, was posted at Jodhpur depot. The petitioner was conductor of Bus No. RRG 3905 of the Corporation which was going from Jodhpur to Luni on Aug. 16, 1979 in the afternoon. The said bus was checked by Shri Sardar Ali, Assistant Traffic Inspector of the Corporation, who is non-petitioner No. 2, at village Kankani. The Mobile Magistrate was also following the said bus along with police staff. It is alleged that about 28 1/2 passengers were found without tickets in the bus and the petitioner, though had collected fare from them, but negligently or wilfully, omitted to supply any ticket to the above-numbered passengers. A complaint was submitted at the spot on the roadside before the Magistrate and when substance of accusation of an offence under Section 8 of the Rajasthan State Road Transport Services (Prevention of Ticketless Travel) Act, 1975 (for short 'the Act' hereinafter) against the petitioner was read over to him, he' pleaded not guilty and claimed to be tried. On behalf of the prosecution, as many as eight witnesses were examined including seven passengers to whom the petitioner is said to have not given the ticket in spite of having charged fare from them. The petitioner did not put any question in cross-examination to any of them. After examining the petitioner under Section 313, Criminal P. C, the learned Magistrate, at the spot, convicted the accused petitioner under Section 8 of the Act and sentenced him to undergo seven days' simple imprisonment. The petitioner preferred an appeal before the learned Sessions Judge, Jodhpur, who dismissed the same under his judgment dated 24-7-80 which has been challenged in this revision petition.
4. S.B. Criminal Revision No. 195 of 1980 arises out of Original Criminal Case No. 345 of 1979. Hariram, the petitioner, was a Conductor of the Corporation and on Tune 10, 1979, he was Conductor of Bus No. RRM 1462 which was going from Sanderao to Sirohi. The said bus was checked near Ameshwar by Shivchandersingh, Traffic Inspector, non-petitioner No. 2. It is alleged that 20 1/2 passengers were found without tickets from whom the accused petitioner had charged the fare but negligently or wilfully, did not issue any ticket. A complaint was filed by non-petitioner No. 2 before the Magistrate on the spot and the substance of the accusation of an offence under Section 8 of the Act was read over to the petitioner. The accused did not plead guilty and claimed to be tried. On behalf of the prosecution, as many as 14 witnesses were examined. The accused was then examined under Section 313, Cr. P.C. The learned Magistrate convicted the accused under Section 8 of the Act and sentenced him to undergo ten days simple imprisonment and fine of Rs. 50/-, in default of payment of fine, to further suffer three days simple imprisonment. The accused filed an appeal before the learned Sessions Judge who, under his judgment dated 17-6-80, maintained the conviction but modified the sentences to a sentence already undergone and a fine of Rupees 50/-.
5. S.B. Criminal Revision No. 234 of 1980, arises out of Criminal Original Case No. 296 of 1980. The accused petitioner was a Conductor with the Corporation on 24-3-80, he was, as a Conductor in Bus No. RJQ 966, which was going from Ambaji to Abu Road. The said bus was checked by Shri Sangramsingh, non-petitioner No. 2, Traffic Inspector of the Corporation at the Railway Crossing outside the city of Abu Road. It was found that about 281/2 passengers were travelling without tickets and from them the accused had taken fare but negligently or wilfully, omitted to issue tickets. The Magistrate being present at the site, the substance of an offence under Section 8 of the Act was read over to the accused who pleaded guilty to them. The learned Magistrate convicted the accused on his plea of guilt under Section 8 of the Act and sentenced him to two days simple imprisonment and to pay a fine of Rs. 200/- in default of payment of fine, to further suffer simple imprisonment for seven days, The accused preferred an appeal before the learned Sessions Judge who dismissed it under his judgment dated 18-2-80.
6. The submission of the learned advocate for the accused petitioners is that in the two cases of Jagmalaram and Hariram, though the accused persons had pleaded not guilty and claimed to be tried but still the learned Magistrate recorded the evidence for the prosecution without giving any opportunity to the accused to engage a lawyer and to be defended by him and as such, a valuable right which is available to the accused of being defended by a lawyer of his choice, was denied to him. He further contends that the accused persons were not well versed in legal niceties and in the art of cross-examination and thus, the procedure adopted by the learned Magistrate, in trying the accused-petitioners on roadside, is neither just nor reasonable and according to him, rather it is no procedure at all. So far as the case of Chatarpalsingh is concerned, the contention of the learned Counsel is that the plea of guilt of the accused on which his conviction and sentence is based, cannot be said to be voluntary looking to the atmosphere and the circumstances in which it is said to have been made by the accused. It is further contended that the accused should have been asked by the Magistrate that he had a right to be defended by a lawyer of his choice and in case the learned Magistrate would have been satisfied that because of poverty or any other reason, the accused was unable to engage a lawyer, it was the duty of the learned Magistrate to have provided legal aid to the accused petitioner, and only then should have proceeded with the trial. He, therefore, submits that in all the three cases, there has been a negation of a valuable right, even guaranteed by the Constitution, of being defended by a legal practitioner of his choice. The contention of Mr. Munshi, learned Counsel for the Corporation is that unless the accused expresses a wish to be represented by a counsel or gives out that on the ground of poverty he is unable to engage a counsel, it was not necessary either for the Court to have asked the accused as to whether he wants to be represented by a lawyer or he should provide services of one to him on the ground of impecuniosity of the accused. According to him, the accused in the two cases of Jagmalaram and Hariram, was given an opportunity of cross-examining the witnesses, but he did not avail of that opportunity. In the case of Chhatarpalsingh, the accused voluntarily pleaded guilty and as such, was rightly convicted and sentenced.
7. The main question which arises for determination in all the three revisions is about the right of the accused to be defended by a lawyer of his choice. Whether it is the duty of the Magistrate to make it known to the accused that be has a right to be defended by a lawyer of his choice and in case the accused, because of his impecuniosity, is not so able to engage a lawyer, then to provide him services of a lawyer ?
8. A learned single Judge of this Court in a batch of six petitions under Section 482, Cr. P.C. under his order dated Dec. 20, 1979, refused to interfere under Section 482, Cr. P.C. In the aforesaid order it appears to. me that the various contentions which have been raised before this Court, were not raised. A learned single Judge of this Court in Afjal Husain v. State , while dealing with propriety of trial in a criminal case after court-hours and at a place, other than the Court which is normally meant for the trial of such cases, observed (para 6):.. 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. 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 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.
Under Article 21 of the Constitution of India, no person can be deprived of his life or personal liberty except according to the procedure established by law. A procedure established by law means such procedure, which should be fair, reasonable and just. Their Lordships of the Supreme Court in Slate of Madhya Pradesh v. Shobharam : 1966CriLJ1521 have held that under Article 22(1) of the Constitution of India an arrested person has a right to be defended by legal practitioner of his choice. It was held that this right is not limited to those persons who are under arrest but is also available to them after they have been released on bail. It was observed in para 23:
The third is that he gets a right to consult and to be defended by a legal practitioner of his choice. This is, of course, so while the arrest continues but there are no words to show that the right is lost no sooner than he is released on bail. The word 'defended' clearly includes the exercise of the right so long as the effect of the arrest continues. Before his release on bail the person defends himself against his arrest and charge for which he is arrested and after his release on bail, against the charge he is to answer and for answering which, the bail requires him to remain present. The narrow meaning of the word 'defended' cannot be accepted.
Thus, it can be said that not merely a person who is under arrest has a right to be defended by a counsel of his choice, but even one who is released on bail has a right to be so defended. In a recent case, their Lordships of the Supreme Court in Khatri v. State of Bihar : 1981CriLJ597 , while dealing with Articles 21 and 39A of the Constitution of India, in case of persons allegedly blinded while in judicial custody in jail of Bihar, observed in paragraph 5 -.. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State ....We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.
The Law Commission in its 48th Report observed:
In our view, representation by counsel is so basic an ingredient of a criminal trial that the law should go as far as possible in seeking that this requirement is not absent.
The Law Commission in its aforesaid report recommended incorporation of a provision of legal aid in the Criminal P.C. to accused at State expenses in certain cases, where the accused has no sufficient means to engage a pleader. It was as a result of the recommendations of the Law Commission that Section 304, Cr. P.C. (1973) was brought on the Statute book. There is no legal literacy in this country and though one is presumed to know the law, but because of illiteracy and more so, of lack of facilities to make people conversant with those provisions of various laws which have been made for their benefit, people do not know as to what right have been conferred on them under various laws. Therefore, I am of the opinion that as and when in a criminal case, which in case of conviction may carry of sentences of imprisonment, an accused is produced or appears before a Court, the Court should make known to the accused that he has a right to be represented by a lawyer of his choice and in case because of his poverty or other reasons, he cannot engage a lawyer, then the Court will provide him a lawyer to defend himself. Merely because the accused does not ask for time to engage a lawyer of his choice, it cannot be said that the trial of the accused is in accordance with law. It will be different if the accused is asked whether he wants to be represented by a counsel and the accused is also not impecunious and in that case, the accused cannot have a right to say that the procedure established by law has not been complied with. A Magistrate has jurisdiction to try an offence anywhere within his jurisdiction. The Roadways Magistrate, therefore, could have tried the offence even by the roadside but it is common knowledge that in case of spot check, the police staff also follows the Magistrate and is readily available at the roadside. If an accused appears before the Magistrate at the roadside in an atmosphere where the Magistrate is present along with other staff and if without appraising the accused that he has a right to be represented by a lawyer of his choice the Magistrate proceeds to try the accused and the accused pleads guilty to the charge, it cannot be said that the plea of the accused in the circumstances aforesaid, is voluntary. No doubt, spot trials have their own effect and they may go a long way in checking, or at least to some extent curtailing, the leakage of revenue in case of buses of the Corporation. No doubt, if the spot trial is not held, the passengers who may be readily available in case the accused does not plead guilty and claimed to be tried, may not be available and the disposal of the case may be delayed, but in all criminal trials, the procedure must be fair, reasonable and just. Heavens will not fall if in the cases of the present nature, in case the accused, on being asked, expresses a wish of being represented by a lawyer of his choice, if the trial of the case is postponed by a day or two. In case where the accused does not plead guilty and claims a trial, the witnesses for the prosecution have to be produced and examined and cross-examined and the accused cannot be said to be well versed in the intricacies of law and the art of cross-examination as will appear from the two cases of Jagmalaram and Hariram. No questions were put by either of them to any of the witnesses who were examined on behalf of the prosecution. Therefore, in cases where the accused does not plead guilty, it is all the more necessary that the spot trial should not be held and opportunity should be given to the accused to engage a lawyer of his choice and for that purpose to postpone the case because it is common knowledge that lawyers are not available at the roadside.
9. Mr. Munshi has referred to Hadu Sahu v. State : AIR1967Ori37 and to the following observations of the learned Chief Justice of that Court (para 3):. It is true that ordinarily trial should take place during Court hours and in Court premises so that the parties may be able to avail themselves of legal assistance. But there may be extraordinary situation when trial may be held outside Court hours provided the accused does not object to such a course. This exception generally applies for the trial of petty offences triable as summons cases where Mobile Courts trying at the spot generally prove effective.
Even in the aforsaid observation of the learned Chief Justice, the necessity of holding trial during Court hours and Court premises has been emphasised, but it was observed that trial of petty offences is an exceptional situation and the Mobile Courts can try the accused at the spot. It was further observed that unless the accused asks for adjournment to enable him to engage a lawyer to defend himself, there is no contravention of Article 22(1) of the Constitution of India. I have already referred to the observations of their Lordships of the Supreme Court in Khatri's case 1981 Cri LJ 470 (supra) and I am of the opinion that the Magistrate should ask the accused if he wants to be represented by a lawyer where he is unable to engage a lawyer, the Court can provide him the services of a lawyer. I would like to refer to few authorities which have been cited at the Bar on behalf of the advocate for the petitioners. In Hussainara Khatun v. State of Bihar : 1979CriLJ1045 , it has been observed that a procedure which does not make available legal service to an accused person who is too poor to afford a lawyer and would therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just. It was further observed that it is an essential ingredient of reasonable fair and just procedure to a prisoner who is to seek his liberation through the Court's process that ho should have legal services available to him. In Ram Lochan v. State 1978 Cri LJ 544. (All), it has been observed that summary procedures, though legal, is inappropriate in cases in which Government servants are the accused persons, because their conviction is likely to result in their dismissal from service which is a serious loss to them. With due respect to the learned Judge, I am un-able to agree with this view. If an offence can be tried summarily, then merely because an accused happens to be a Government servant, the Magistrate will not refuse to try the accused summarily. Whatever may be its consequences. In S. Chinnaswamy v. State 1973 Cri LJ 358 a learned single Judge of the Madras High Court has observed that a Magistrate ought to make sure that the accused brought before him had the chance of arranging for his defence and for that purpose he should even postpone the trial by a day. In Madhav Hayawadanrao Hoskot v. State of Maharashtra : 1978CriLJ1678 , dealing with Article 21 of the Constitution of India, it was observed:
Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood 'procedure' roust rule out anything arbitrary, freakish or bizarre.
In the aforesaid authority, the observations of the U.S. Supreme Court in Raymond Hamlin (United States Supreme Court Reports, Vol. 32, p. 530) to the following effect were quoted:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated 'layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rule of evidence. Left without the aid of counsel he may be put upon trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he be not guilty he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect.
It was also observed:
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours....
Mr. Munshi, learned Counsel for the Corporation has placed reliance on Ram Sarup v. Union of India : 1965CriLJ236 . It was a case under the Army Act of 1950 and trial by a Court Martial. In that case, the accused had not made an express request for being represented by a counsel of his choice, It was held that there was no violation of fundamental right of the accused to be defended by a counsel of his choice under Article 22(1) of the Constitution. To my mind, that case has no application to the present case.
10. In the three cases it may be said that the trial was held at a roadside where even if the accused would have chosen, the services of a lawyer, much less a lawyer of his own choice, would not have been available to him. In the two cases of Jagmalaram and Hariram, as already stated earlier, the accused did not plead guilty but even though the witnesses were examined on the spot, there is no cross-examination, perhaps, because they were not conversant with the intricacies of law and were not conversant with the art of cross-examination. In the third case of Chhatarpalsingh, the moment a complaint was filed against him on the spot before Magistrate who was readily available, he pleaded guilty and was convicted and sentenced. His plea of guilty in the atmosphere in which the trial was held, cannot be said to be voluntary. At the cost of repetition, it may be said that in case of trial of criminal case, which carry a sentence of imprisonment, as and when the accused is produced or brought before a Magistrate, the Magistrate should make it known to the accused that he has a right, a constitutional right, of being represented by a counsel of his choice and if he has no means to engage a lawyer, then arrangements may be made for his defence. In case the accused, in spite of so being informed, does not want to engage a lawyer or is not impecunious warranting making of arrangements by the Magistrate for his defence, then the Magistrate can proceed with the trial. Without following what has been said above, if the trial is held, it will amount to a negation of a right of the accused to be defended by a counsel of his choice.
11. I am, therefore, of the opinion that in all the three cases, the reasonable just and fair procedure was not followed. The accused were denied their valuable right of being defended by a counsel of their choice. In the case of Chhatarpal Singh, his plea of guilt cannot be said to be voluntary in the circumstances in which it was recorded.
12. All the three revision petitions are allowed. The judgments convicting each of the three accused petitioner under Section S of the Act and the sentence awarded to each of them is set aside. The cases are remanded back to the Magistrate with a direction to restore them to their original numbers and then try them afresh in accordance with law in the light of the observations made above.