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Emperor Vs. Jalam Bharatsing - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 604 of 1937
Judge
Reported inAIR1938Bom279; (1938)40BOMLR317
AppellantEmperor
RespondentJalam Bharatsing
DispositionAppeal dismissed
Excerpt:
.....code (act v of 1898), sections 420, 421-criminal appeal-appeal presented by appellant from jail -right of appellant to be heard in support of appeal.; an appellant filing his appeal from jail under section 420 of the criminal procedure code, 1898, has no right, statutory or otherwise, to insist upon his presence in court to support the appeal. however, if the appellate court considers it desirable in any particular case that the accused should be heard, it can always direct the prisoner to be brought before it while his appeal is being heard. - - as we have had a good many cases recently in which accused persons in jail have preferred a request to be allowed to come and argue their appeals when they come up for admission, we thought it right to ask the learned government..........ground for interfering, it may dismiss the appeal summarily. then there is a proviso that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. then section 422 provides that if the appellate court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader.3. the first question which arises for consideration is whether the proviso ; to section 421 directing that an appeal shall not be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard, applies to an appeal presented under section 420. in my opinion, the proviso docs not so apply. the express reference in the substantive part of section.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal by the accused from jail in which the accused asks to be allowed to argue his appeal. As we have had a good many cases recently in which accused persons in jail have preferred a request to be allowed to come and argue their appeals when they come up for admission, we thought it right to ask the learned Government Pleader to look into the matter and refer us to any authorities on the subject, since there does not appear to be any ruling of this Court upon the question.

2. Section 419 of the Criminal Procedure Code provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall be accompanied by the documents therein referred to. Section 420 provides that if the appellant is in, jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper appellate Court. It is under that section that the present appeal is presented through the officer of the jail. Section 421 provides that on receiving the petition and copy under Section 419 or Section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. Then there is a proviso that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Then Section 422 provides that if the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader.

3. The first question which arises for consideration is whether the proviso ; to Section 421 directing that an appeal shall not be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard, applies to an appeal presented under Section 420. In my opinion, the proviso docs not so apply. The express reference in the substantive part of Section 421 to a petition presented under Section 419 or Section 420 indicates that the omission of any reference to Section 420 in the proviso is deliberate, and that the proviso is only intended to apply to an appeal presented under Section 419, that is an appeal presented direct to the Court, and not through the officer in charge of the jail. The legislature may well have thought that it would occasion serious inconvenience and expense to allow every convicted person who desires to appeal from jail the right to come to the appellate Court to be heard. We get many appeals from jail, which appear to be based on nothing more substantial than the hope which ' springs eternal in the human breast,' and it would be a serious matter if all such appellants were entitled as of right to insist on being brought at the public expense, often from: a jail in a distant part of the presidency, to Bombay, to argue their appeals.

4. The next question is, whether, apart from any statutory right, a convicted person who presents an appeal ought upon general principles to be given the right of being heard. The general rule that no person should be condemned unheard cannot apply to an appeal, the right to which is the creation of statute. Where a man has already been condemned and deprived of his liberty, it requires, in my opinion, some statutory provision to entitle him to insist upon leaving the place where he is confined and being brought to the place where his appeal is to be heard. The Court will, I need hardly say, always consider whether the ends of justice require that an appellant should be heard. If the Court thinks that there is any possibility of its decision being influenced by anything the accused may say, then the Court can always direct him to be brought before it when his appeal is being heard in the first instance.

5. I would add that it has been held by a full bench of the High Court of Allahabad (Emperor v. Lal Bahadur I.L.R. (1927) All. 543.) that where a notice is issued under Section 422, the appellant is entitled, if he so desires, to appear on the hearing of the appeal either by himself or by a pleader. I agree with that ruling. I think that the obligation imposed on the Court under Section 422 of giving notice to the appellant, if he has no pleader, involves that the appellant must have a right to act upon the notice and come to the Court to argue his appeal if he so desires. But, in my opinion, where the Court is dealing with an appeal under Section 421. it is entitled to dismiss the appeal summarily without hearing the accused, and the accused has no right to insist on being heard.

6. In the present case the accused was convicted of the murder of his wife. He does not dispute that he did in fact kill his wife, but he says that he acted under grave and sudden provocation and in self-defence. The assessors have taken the view that the case falls under Section 304 of the Indian Penal Code. One of them seems to think that the accused was acting in self-defence, and the others think that there was grave and sudden provocation. It is, in my opinion, quite clear from the judgment of the learned Judge that there was no evidence on which the Court could hold that the case fell within any of the exceptions to Section 300 ; and I think that it would be useless to allow the accused to come here and argue the appeal, because there is no material to enable the Court to hold that the case does not fall under Section 302.

7. We, therefore, dismiss the appeal summarily without hearing the accused,

Wassoodew, J.

8. The rule 'hear the other side' audi alteram partem cannot be extended without qualification, in my opinion, to criminal appeals presented by a convict from jail under Section 420, Criminal Procedure Code. That rule is followed in criminal trials, it being incorporated in the statute itself as an indispensable requirement of justice. It is true that in judicial proceedings a party is ordinarily given an opportunity of hearing what is urged against him. But it is equally true that the right of appeal is essentially a statutory right, and the provisions of the statute conferring that right, in so far as it lays down the procedure to be followed in the exercise of that right even in the matter of audience, have necessarily to be observed. The relevant provisions are contained in Sections 419, 420 and 421 of the Criminal Procedure Code. It is clear that the proviso to the last section deals with appeals presented under Section 419. and by the language used the legislature has expressly restricted the right of the appellant to be heard to cases under Section 419. By necessary implication the right to be heard under Section 420, Criminal Procedure Code, has been denied. I do not wish toi suggest that the inherent power of the Court to do justice, by directing the accused to be produced before it for being heard upon his case, is in any way limited. In spite of the restriction contained in the proviso to Section 421, wherever the appellate Court considers it desirable that the accused should be heard, the Court has power to direct the production of the prisoner before it for disposing of the appeal. But it cannot be said that a convicted person presenting his appeal under Section 420 from jail has a right to be heard in person. The Court if it thinks proper can decline to hear him. It may be noted that an argument drawn asinconvenient has been regarded as forcible in law. In such matters, where convicts from jail frequently apply for permission to be heard in person, the Courts have to allow their decision to be determined generally by considerations of inconvenience and public expense. The case is, however, different when notice is given to the appellant under Section 422, Criminal Procedure Code. (See Emperor v. Lal Bahadur I.L.R. (1927) All. 543) In the present case the accused's presence is not necessary. I therefore agree with the order proposed by my Lord the Chief Justice.


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