BABAN DAUD Vs. EMPEROR

JUDGEMENT

(1.) The petitioner in this case was arrested on a charge under Section 457 of the Indian Penal Code on the 13th of January 1913. He was kept in custody at Pandharpur and tried on the 17th of January 1915, which was a Sunday. The trial was commenced and practically finished on that day. The judgment was given on the 18th of January. He was convicted and sentenced to eighteen months rigorous imprisonment.

(2.) In the petition before us he 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 was not proper for the Magistrate to have tried the petitioner on a Sunday.

(3.) From the facts disclosed in the petition here and from the report of the Magistrate which was called for on the petition to this Court, it appears that the accused was probably prejudiced in this case on account of the trial having been held on a Sunday. While he was in custody at Pandharpur on the 15th of January, he had sent a letter to his father at Hotgi through the Mamlatdar informing him that he was arrested and requesting his father and mother to go at once with money to Pandharpur. The mother arrived at Pandharpur with the money on Sunday, the 17th January, after the trial was ove. If the trial had not been held on the 17th January, 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. It is quite true, as pointed out by the Magistrate in his report, that the accused did not request the Court on the 17th to adjourn the case, and when he was asked whether he had a Pleader, he said that he had none. But this circumstance by itself does not, in my opinion, affect the conclusion which I have already stated.