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Lal Bahadur Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1928All84; 108Ind.Cas.122
AppellantLal Bahadur
RespondentEmperor
Cases ReferredRam Prasad v. Emperor A.I.R.
Excerpt:
- .....v. pophi [189l] 13 all. 171. opinion7. the question referred to the full bench concerns the right of a convict in jail, whose appeal is pending, to appear in court in person, if he so desires, on the date fixed for the hearing of his appeal, and to argue his case in person.8. a learned sessions judge had refused such a convict the right to appear, basing his decision on the case queen-empress v. pophi [189l] 13 all. 171 and ram prasad v. emperor a.i.r. 1927 oudh 312. the convict appellant applied to this court, and his application came before mr. justice boys. mr. justice boys, feeling himself unable to accept without qualification the decision of the full bench in queen-empress v. pohpi [189l] 13 all. 171, referred the matter to the hon'ble the chief justice with a view to.....
Judgment:

Boys, J.

1. The learned Judge has based his refusal, according to the certified copy on the file before me, on cases reported in 103 I. C, p. 407 and Queen, Empress v. Pophi [189l] 13 All. 171. There is no such, volume as No. 103 I. C, and I am unable to trace the reference. The other case; reported in Queen Empress v. Pophi [189l] 13 All. 171 to some extent justifies the learned Judge in his refusal to arrange for the appellant to be produced in his Court.

2. Owing to my having had to deal with this and connected cases on previous occasions I was aware that this, at any rate, is a case in which the convict should be allowed an opportunity of arguing his case, if he so desired. I, therefore, as time was short, by a letter from this Court dated 25th November 1927, directed the learned Judge, in conjunction with the District Magistrate, to make arrangements for the production of the accused.

3. I am not, and I never have been, personally wholly in accord with the decision reported in Queen Empress v. Pophi [189l] 13 All. 171. If I had reason to believe that I stood alone in this view there would be an end of the matter, but I am aware that my doubts are shared, and have been shared, for many years by others, and I think that it is desirable that decision should be reviewed and qualified. By Section 422, Criminal P. C, this Court is ordered to give notice to the appellant or this pleader, and it is clear that if there is no pleader the Court must give notice to the appellant. If the appellant does not express a desire to appear in Court in person there is, of course, an end of the matter, but if he expresses a desire to appear, it seems to me an unsustainable attitude to hold that though he must be given notice he may be physically restrained from taking advantage of that notice even though he may have expressed a wish to do so.

4. If, on receipt of the notice, the appellant desires to be heard in person I think to refuse to make arrangements for his appearance is to deny him the right which is a logical consequence of his right to have notice. If he does not ask to be allowed to appear, it is not necessary that he should be produced.

5. No distinction was raised or drawn in the Full Bench case between cases where the convict expresses a desire to appear and where he does not, and the unqualified nature of the decision has led a Subordinate Court to refuse to direct arrangements to be made even where the convict wanted to appear. The Full Bench case was dealing with the general proposition:

Must a convict (where he has no pleader) always be produced in Court at the hearing of his appeal?

6. I would suggest that the matter be laid before a Full Bench to re-consider and qualify the proposition too broadly expressed in Queen-Empress v. Pophi [189l] 13 All. 171. Opinion

7. The question referred to the Full Bench concerns the right of a convict in jail, whose appeal is pending, to appear in Court in person, if he so desires, on the date fixed for the hearing of his appeal, and to argue his case in person.

8. A learned Sessions Judge had refused such a convict the right to appear, basing his decision on the case Queen-Empress v. Pophi [189l] 13 All. 171 and Ram Prasad v. Emperor A.I.R. 1927 Oudh 312. The convict appellant applied to this Court, and his application came before Mr. Justice Boys. Mr. Justice Boys, feeling himself unable to accept without qualification the decision of the Full Bench in Queen-Empress v. Pohpi [189l] 13 All. 171, referred the matter to the Hon'ble the Chief Justice with a view to re-consideration of that ruling. As the matter was very urgent Mr. Justice Boys further directed the learned Sessions Judge to make arrangements, with the assistance of the District Magistrate, for the appellant to be produced in his Court on the date fixed for the hearing of the appeal. The matter has now come up before us for disposal.

9. In the referring order the learned Judge said:

By Section 422, Criminal P.C., this Court is ordered to give notice to the appellant or his pleader, and it is clear that if there is no pleader the Court must give notice to the appellant. If the appellant does not express a desire to appear in Court in person there is, of course, an end of the matter, but if he expresses a desire to appear, it seems to me an unsustainable attitude to hold that though he must be given notice he may be physically restrained from taking advantage of that notice, even though he may have expressed a wish to do so. If on receipt of the notice the appellant desires to be heard in person I think to 'refuse to make arrangements for his appearance is to deny him the right, which is a logical consequence of his right to have notice. If he does not ask to be allowed to appear, it is not necessary that he should be produced.

10. We have considered the decision of the Full Bench of this Court in Queen-Em, press v. Pophi [189l] 13 All. 171, and we are unable to agree with the reasoning in that case, and are of opinion that the decision went too far when it held that an appellant from jail has no right to appear at the hearing of his appeal, if he desires to do so, and has no pleader to represent him similarly, we find ourselves unable to agree with the learned Judges in the case Ram Prasad v. Emperor A.I.R. 1927 Oudh 312, where they say:

As he appealed from jail he was not entitled to appear in person to argue his appeal.

11. We hold that where the stage has been reached of an appellant being given notice under Section 422, Criminal P.C., he is entitled, if he so desires, to appear in person, if he is not represented by a pleader. As in the particular case Mr. Justice Boys has already given directions for the appellant to be produced in Court, no further order is required.


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