Sachindra Nath and Others vs State of Bihar

Anant Singh, J.—These eight applications in revision have been heard together although they arise out of five different judgments of the Court of appeal below, coming out from three different places, because they all involve common questions of law and facts.

Application No. 1103 of 1960 arises out of the Judgment of Mr. S.N. Jha, resident magistrate, Rajmahal at Sahlbganj, dated 15 July 1960, disposed of on appeal by the Sessions Judge of Santhal Parganas by his prder dated 16 September 1960. There are 26 petitioners in this application.

Application No. 1406 of 1960 arises out of the Judgment of Mr. B.M. Prasad, magistrate, first class, Deoghar, dated 13 July 1960, and applications Nos. 1407, 1408 and 1409 of 1960 arise out of the judgment of Mr. J.C. Jetli, Subdivisional Magistrate of Deoghar, dated 15 July 1960, all the four being disposed of on appeal by the Second Additional Sessions Judge of Santhal Parganas by his order dated 26 November 1960.

Applications Nos. 1338, 1347 and 1354 of 1960 arise out of three different judgments of the same date, 18 July 1960, passed by Mr. A. Singh, munsif-magistrate, Begusarai, disposed of on appeal by three separate judgments of the Sessions Judge of Monghyr, all dated 24 November 1960.

In all these cases, the accused-petitioners were railway employees in different capacities. in the cases coming from the district of Monghyr, the petitioners-accused had been on the relevant date posted at Barauni Junction railway station; in Criminal Revision No. 1103, the petitioners-accused had been posted at Sakrigali Ghat and the petitioners-accused in the remaining four cases had been posted at Madhupur railway station.

There was a general railway strike commencing from the midnight intervening between 11/12 July 1960, and the allegations against all the accused in the various cases were that on 12 or 13 July 1960 they had joined in the strike and had instigated other railway employees also to join the same. It is said that the acts of all the accused were an offence either under Sections 4 or 5, or both, of Ordinance No. 1 of 1960 which had been promulgated and which came in to effect on 8 July 1960. All the accused were arrested at their respective stations, some on 12 and some on 13 July 1960. They were taken into custody and confined to jail custody. The accused from Barauni Junction railway station had been kept in Begusarai jail; the accused from Sakrigali Ghat had been kept in Sahibganj sub-jail and those from Madhupur had been kept with the Madhupur Railway Police at Madhupur.

The accused from Sakrigali Ghat were visited by Mr. S.N. Jha, magistrate, in the jail itself on 15 July 1960. The accused in Begusarai jail were visited by the munsif-magistrate Mr. A Singh, on 18 July 1960. The accused in Madhupur camp were visited by the magistrate, Mr. Jetli, on 15 July 1960 except in Criminal Revision No. 1406 in which the accused were visited by another magistrate, Mr. Prasad, on the date of their arrest on 13 July 1960. These magistrates, in the respective jails, in the dates referred to above, proceeded to try the accused under the aforesaid Ordinance. Each magistrate examined the different accused u/s 242, Code of Criminal Procedure, and put some questions to them. The accused in each case gave their statements in answer to the questions put and some appear to have accepted the guilt and some, while accepting having gone on strike, did not plead guilty. They were all convicted and sentenced differently by the respective magistrates trying them. All the accused went in appeal to their respective Courts of appeal below. The Court of appeal below in case of the accused from Berauni Junction and Sakrigali Ghat have confirmed their convictions u/s 4 of the Ordinance and in case of Madhupur accused, the Court of appeal below upheld the conviction in one case only, being Criminal Appeal No. 111 of 1960, u/s 4 of the Ordinance and set aside the conviction u/s 5. It however set aside the convictions of the other accused in the other three appeals, 108, 109 and 110, but remanded their cases for a retrial. Being aggreived by their convictions and the orders of the Court below, the petitioners have preferred these applications.

The common features of all these cases are that they were hustled into a trial in their respective places of confinement within three to six days of their arrest, and in Criminal Revision No. 1406 on the very date of their arrest. During this time, they had not any outside access for any independent advice, much less any legal advice before their trials were commenced. Until their trials began, they were not produced before any magistrate. As provided in Article 22 of the constitution tself, no person can be detained in custody without being informed of the grounds for his arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. There is no indication in any of these cases that they were informed of the grounds of their arrest, nor is there any indication to indicate that they had been given an opportunity to consult and defend themselves by any legal practitioner of their choice. Ever since their arrests and before the trials commenced, they had been kept in jail custody; naturally they could have no opportunity to consult and have any legal advice before they were called upon to defend themselves. This was obviously a denial of the right to be defended by a legal practitioner.

The questions put to the accused at the time of their respective trials, speaking generally, were not sufficiently explanatory to indicate whether the facts with which they were being charged constituted any offence and if so, what was the nature of the offence in none of the cases, the nature of the offence was at all explained. The answers given by the accused generally were not an unequivocal admission of their guilt in several cases, they did not admit the guilt at all. The pattern of questions put to each accused was whether he had made any herbal, and, the answers generally were in the affirmative with an assertion, however, that they did so in the exercise of their rights. This was not an acceptance of guilt at all. If the facts constituting an offence are admitted, but if any justification is pleaded without pleading guilty, such admissions of fact cannot amount to admission of guilt. There are some general defects in all these cases, and I do not think, in such circumstance. It can be said that the accused had a fair trial and that they pleaded guilty to the charge. Be it noted that in none of the cases the prosecution produced any evidence to substantiate the accusations against the various accused.

I may illustrate the pattern of the different trials adopted by the different courts in these cases. I shall first of all deal with the cases of Madhupur accused who are eight in number. They had been charged with the offences under Sections 4 and 5 of the Ordinance. They have all been acquitted of the latter charge and with the exception of the accused in Criminal Appeal No. 111 of 1960 giving rise to Criminal Revision No. 1406 of 1960, others have been also acquitted of the charge u/s 4 of the Ordinance but their cases, as already stated, have been remanded for a retrial.

They were all convicted by the trial Court on the assumption of their pleading guilty. The pattern of the questions put by the magistrate to each of the accused u/s 242, Code of Criminal Procedure, was more or Jess similar. The question put to each accused was, if he was a railway employee serving in a particular capacity and whether on the relevant date he had committed hartal (to use the word of the magistrate himself). The answer given by each accused was that he only made use of his f fundamental rights; but none of these accused accepted; his guilt. The learned Additional Sessions Judge has rightly held in the case of the accused in three of the criminal appeals that their answers wore no admission of guilt of the offence, but in the case of accused in Criminal Appeal No. 111, he seems to have applied a somewhat different standard. The learned Additional Sessions Judge has quoted the questions put to, and the answers given by one of the accused, Sisir Kumar Nandi, of that case. The first, question was, whether on the relevant date he was a railway employee and whether on that date he at Madhupur joined in the strikes and did not go to work. The answer given was in the affirmative. The other question was, whether he instigated the other railway employees to participate in the hartal, The answer was that he had need the slogan to the effect that in answer to the oppression, hartal was their slogan and that their demands were Justified and that the Eastern Railway Union might live long. The third question was, if he had to any anything more, and the answer was in the negative. He was put no other question. The questions put to and the answers given by the other accused in that case were more or less similar. Or the charge of instigating others, following from the answer to the second question, they have been acquitted, but the answer in the affirmative to the first question has been accepted by implication as acceptance of the guilt. The learned Additional Sessions Judge thought that the answer in the affirmative amounted to an admission by these accused of their participation in the strike and, therefore, he has held that they were guilty u/s 4 of the Ordinance; but I do not think that the learned Additional Sessions Judge was quite right in drawing any such inference of admission of the guilt on the part of these accused. As a matter of fact, none of these accused admitted that they had participated in the strike. The question put to each accused, individually, was "Kya aapney...Hartal kia vo kaam par nahi gaye"? and the answer was in the affirmative. The word "hartal" has not been defined in the Ordinance, but it has come in common parlance to be associated with a concerted form of strike. The individual cessation of work, as were tae questions and the answers, would not be treated as participation in the strike. The word "strike" has been defined in Section 2(b) of the Ordinance as meaning

the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of parsons who are or have been so employed to continue to work or to accept employment.

It will appear that none of the accused was questioned whether he had in "a body" or "In combination" with other persona or group of persons joined the strike. If an individual employee struck work and did not go to duty on a particular date, it would not come within the mischief of the term "strike" which had been made penal u/s 4 of the Ordinance. Thus, the conviction of the accused even in Criminal Appeal No. 111 was bad. As a matter of fact, the learned Judge himself appears to have been conscious of the lacuna in the prosecution cage, but he ignored it because of the fact that the prosecution could have led evidence to establish the different ingredients of the offence of strike at the appropriate stage, had not the proceeding been terminated already. I am really surprised at the way the judge has disposed of this matter. The case has to be decided on the evidence that has been brought on the record and not on what the prosecution could have otherwise proved, if the proceeding had continued. It was upon the prosecution to have brought on the record material constituting the offence if the plea of guilt was not sufficient. As, in fact, it was not, the prosecution can have no benefit of any anticipatory evidence that it might have led otherwise. The view taken by the learned Judge in this regard is indeed perverse.

The conviction of none of the Madhupur accused in any of the cases was justified, and the learned Judge was again in the wrong to have remanded three of the cases for further trial according to law. The object of remand is not to enable the prosecution to fill as any lacuna that it Bad left at the time of the regular trial. It was up to the prosecution to have led all the evidence at the time of the trial, and if it failed to do so, it should not have been given an opportunity to lead further evidence after remand. The order of conviction as also of remand in the case of Madhupur accused must be set aside.

As regards the accused from Sakrigali Railway Station, apart from the general criticisms I have already made, it would appear from the examination of these accused u/s 242 of the Code of Criminal Procedure that the same question had been put to all. The question addressed to each accused was Whether he on 12 July 1960 after stopping his work joined in the hartal which was an offence under Ordinance No. 1 of 1960 read with Section 4 of the same, and that whether he committed any offence. The answer in each case was in the affirmative in their case, no doubt, the question was quite informative and explanatory of the fact constituting the offence. But, I have extreme doubts, if all the accused had been put the same question exactly in the same language. There were twenty-six accused, and it is little surprising that to all of them exactly the same question and in the same language was addressed. The order sheet of the relevant date, namely, 15 July 1960, written by the magistrate in his own pen, shows that only the substance of the accusation had been explained to the different accused named in the order sheet. There is no mention in the order sheet that the statements of the accused u/s 242 of the Criminal Procedure Code had been separately recorded at the time of the trial. The defence version, however, is that all the twenty-six accused had been brought together and put question jointly about their guilt. It was some time later that each one of them was made to sign on a separate piece of paper. Practically all the accused in this case are Bengali-speaking, but they appear to have been examined in Hindi. There was no certificate appended by the magistrate to indicate that the accused knew Hindi or that it was interpreted to them by any interpreter. Besides, as I have already indicated, these accused had no opportunity to have any legal advice before they pleaded guilty and for that reason alone, their conviction mast have been set aside.

The cases coming from Monghyr are much worse. The question pat to Ramji Jha was whether he took part in the railway hartal and nothing more. Not even the date of the alleged hartal was put to him.

The question put to Krishna Mohan Guar was whether from 12 July 1960 he took part in the railway hartal. The question put to Jogendra Prasad Singh was whether he made any hartal. It was not even indicated that hartal was being referred to and on what date. The answer of each of the three accused was in the affirmative. This was not at all sufficient and cannot be accepted as an admission of their guilt.

In the result, all these applications are allowed. The convictions of all the petitioners are set aside. The order of remand in Criminal Revision Nos. 1407, 1408 and 1409 of 1960 is also set aside.