EMPEROR Vs. MAHOMED KASIM GULAM MOHIDEEN

JUDGEMENT

(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.) 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) 17 Bom. L. R. 918 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.