W.Broome, J. - (1.) BABU Ram and Sukhdeo Prasad, the applicants in this criminal revision; were convicted by a first class Magistrate of Bareilly for an offence under Sec 5 of the Essential Services Maintenance Ordinance 1960 and were sentenced to nine months' R.I. and a fine of Rs. 500/- each. In appeal the Second Additional Sessions Judge of Bareilly maintained the conviction but reduced the sentence to three month's R.I. and a fine of Rs. 100/- each.
(2.) THE prosecution allegations are as follows : By a notification published in the Gazette Extraordinary of July 8, 1960, the Central Government, acting under the powers conferred by Section 3 of the Essential Services Maintenance Ordinance 1960, prohibited strikes in various essential services, including "any railway service", and as a result, any person who instigated or incited others to take part in this kind of strike became liable to punishment under Section 5 of the Ordinance. On 14.7.1960 the accused-applicants, who were employed by the N.E. Railway as gangman and pointsman respectively, instigated their fellow employees to strike by making speeches and shouting slogans on the platform at Bareilly City station al a place in front of the tea stall, not far from the waiting room A crowd which included several railway employees collected on the spot. THE accused shouted: "Rel ka chakka nahin chalega; hartal hamara nara hai", whereupon they were arrested by Head Constable Jiwan Lal (P.W. 1) and taken off to the police station. The accused-applicants deny the prosecution allegations in toto and have produced negative evidence in defence; but the courts below, relying on the testimony of the prosecution witnesses (in particular Jiwan Lal and Banne, P.Ws. 1 and 3) have found the prosecution allegations to be fully substantiated and have convicted the accused accordingly. I can see no reason to interfere with the findings of fact arrived at by the courts below and I am satisfied that the accused did actually shout the slogans quoted above to a crowd of persons, including railway employees, who had collected on the platform at the Bareilly City station on 14.7.1960. A feeble attempt has been made to argue that the aforesaid slogans were no incitement to strike but merely an expression of the accused's personal views; but the circumstances revealed by the evidence on record leave no room for doubt on this score. The accused, who were wearing badges and holding flags, were clearly taking part in an organised demonstration, whose only object could have been to incite railway employees to join in a general strike, so as to bring the railway service to a standstill.
(3.) LEARNED Counsel for the applicants has tried to make out that they were prejudiced by the defective nature of their examination under Section 342, Cri.P.C. but on perusing the record I can see no substance in this suggestion. The basic prosecution allegations were put to the accused on 18.7.1960, when they were first examined, and were totally denied by Sukhdeo Prasad while Babu Ram declined to make any statement at all. Then on 2.8.1960, after the evidence of the prosecution witnesses had been recorded, the accused were asked if they had anything further to say and gave the same replies as before. I can see no reason to think that they were in any doubt as to the precise nature of the charge which they had to meet, and I am not prepared to hold that the omission on the part of the Magistrate to put more detailed questions to them has resulted in any prejudice whatsoever. It was further contended that the applicants had been denied the right to consult and be defended by a legal adviser of their choice, which is guaranteed by Article 22(1) of the Constitution. The record shows, however, that when the accused made an application to the trying Magistrate on 19.7.1960 asking for time to arrange for defence counsel, he remarked in the order passed thereon that "jail itself adjoins vakalatkhana and every facility is given to use telephones even for counsel and he further observed: "Now a peon may "be deputed to summon the counsel when they name. This order was passed eight days Before 27.7.1960, when the first prosecution witnesses' evidence was recorded; and on that date a defence lawyer was to attendance, as is clear from the vakalatnama and applications on the file. The accused were thus granted ample facilities for contacting and engaging counsel and there can be no question of Article 22 having been infringed.;