M VELAYUDHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This Criminal Revision Petition has been preferred by the accused in C. C. No. 237 of 1956 of the Stationary First Class Magistrate's Court, Neyyattinkara. He was convicted of an offence under S.29 of the Industrial Disputes Act, 1947, and sentenced to pay a fine of Rs. 200/-. On appeal the conviction and sentence were confirmed by the Sessions Judge, Trivandrum.

(2.) The case against the accused was that he committed breach of the terms of the award given by the Industrial Tribunal, Trivandrum, in Industrial Dispute No. 71 of 1955. Ext. P1 is a copy of the award and it was published by the Government by notification (Ext. P-2) dated 9th November, 1955. The dispute was between the proprietors of M. V. Motor Service and A. V. N. Motor Service, Neyyattinkara, and their workmen. Ext. P1 directed reinstatement of some workmen, supply of khaki uniforms to workmen, and payment of bonus. The Secretary of the Trivandrum District Motor. Service and Workshop Employees Union informed the Assistant Labour Commissioner that the accused and the proprietor of A. V. N. Motor Service had committed breach of the award and requested him to take appropriate steps in the matter. The Labour Commissioner moved the Government, and the Government passed an order (Ext. P-4) on 22 6 1956 directing the Assistant Labour Commissioner, Trivandrum, to prosecute the accused and Velayudhan Nadar, proprietor of A. V. N. Motor Service for an offence under S.29 of the Industrial Disputes Act. This prosecution was accordingly launched against the accused by the Assistant Labour Commissioner. The only point which appears to have been taken before the trial Magistrate as well as in appeal was that the award was void and was not enforceable. This contention was found against and the accused was convicted.

(3.) The first point raised on behalf of the petitioner is that the trial was vitiated by the omission to question the accused under S.342 of the Code of Criminal Procedure. It may be stated at the outset that this point was not taken in the courts below or even in the revision petition. At the commencement of the trial the accused appeared and when the complaint was read out to him, he pleaded not guilty. On his application he was thereafter exempted from personal appearance and at the conclusion of the trial he did not choose to appear and his counsel gave a statement on his behalf. Learned counsel for the petitioner referred to several decisions in support of the argument that the failure to question the accused personally is a fatal defect and urged that the conviction should be quashed on this ground. There are decisions of the High Courts of Madras, Rangoon and Andhra which lay down the proposition that in a summons case, like the present one, it is not obligatory for the court to question the accused under S.342. It has also been laid down that S.342 must be read subject to S.205 of the Code of Criminal Procedure. A contrary view has been taken by the High Courts of Calcutta, Bombay, Allahabad, Nagpur, Sind and Pepsu. In my opinion it is unnecessary to decide the question in this case. It has been pointed out by the Supreme Court in Mathew v. T C State, (AIR 1956 S. C. 241) that the question of prejudice on account of non examination or defective examination under S.342 is a point that should be taken up at least in the appellate court. Although the omission to take the objection in the grounds of appeal may not necessarily be fatal it was held that the fact that the objection was not taken at an earlier stage was a material circumstance that should necessarily weigh heavily against the accused particularly when he was represented by counsel throughout and that the court was entitled to conclude that a person who deliberately withheld facts within his special knowledge and refused to give the court that assistance which is its right and due, had nothing of value which he could disclose and that if he did disclose anything that would at once expose the hollowness of his cause. If the accused is not afforded the opportunity to explain the circumstances appearing in the evidence against him he is entitled to ask the appellate court to place him in the same position as he would have been in, had he been asked. The Supreme Court concludes thus: