Harnam Singh, J.
1. Nathu Ram V. Godse has been found guilty by-Shri Atma Charan, I. C, S. Judge, Special Court, Delhi, under Section 120B, Penal Code read with s. 302 of the Code, under B. 19 (c), Arms Act Cr in the alternative under Section 114, Penal Code read with Section 19(c), Arms Act,, under Section 19 (f), Arum Act, under Section 5, Explosive Substances Act Cr in the alternative under Section 5, Explosive Substances Act read with Section 6 of the Act, under Section 4(b), Explosive Substances Act read with Section 6 of the Act, under B. 6, Explosive Sub-stances Act read with Section 6 of the Act, under Section 115, Penal Code read with Section 302 of the Code and under Section 302, Penal Code and has been sentenced (1) to two years' rigorous imprisonment under Section 19 (c), Arms Act, Cr in the alternative under Section 114, Penal Code read with Section 19 (c), Arms Act, (2) to two years' rigorous imprisonment under Section 19 (f), Arms Act, (3) to three years' rigorous imprisonment under Section 5, Explosive Substances Act Cr in the alternative under Section 6, Explosive Substances Act read with Section 6 of the Act, (4) to five years' rigorous imprisonment under Section 4(b), Explosive Substances Act read with Section 6 of the Act, (5) to seven years' rigorous imprisonment under Section 6, Explosive Substances Act read with 8. 6 of the Act and (6) to death under Section 302, Penal Code. The sentences of imprisonment have been Ordered to run concurrently. He appeals from jail.
2. Now, the appeal of Nathu Ram V. Godse stands on the register of this Court and on receipt of notice issued to the appellant under Section 422, Criminal P. C, he has made a request to be allowed to come and argue his appeal when it comes up for final disposal. The matter came up before me sitting as the Vacation Judge in charge of the duties of that office imposed upon me and I felt doubtful whether in view of the practice of the Court the application of the appellant ought to be allowed. The practice of the Court is evidenced by the resolution adopted by the Hon'ble Judges of the High Court of Judicature at Lahore on 7th May 1932. The resolution says:
The Judges considered the practice to be adopted in dealing with applications from accused persona for permission to appear in person at the hearing of their appeals in the High Court. It was resolved that:
(i) where the sentence appealed against is one of death Cr transportation the permission should ordinarily be granted except when the accused is represented by counsel of his own choice;
(ii) in other cases permission should not be granted unless the Judge considers that special reasons exist.
3. Now, as in a good many cases convicts appealing from jail apply to be allowed to come and argue their appeals when they come up for final disposal, I considered that I should make a judicial observation on the point and thought it right to ask the learned Assistant Advocate-General to look into the matter and refer me to any authorities on the subject, since there was no ruling of this Court upon the question and the practice followed in such cases in this Court appeared to me to be of doubtful validity. The Crown counsel, however, gave me no assistance at the hearing and merely informed me that he had instructions to leave the matter to the decision of the Court.
4. As stated above, a notice has been issued to the appellant under Section 422, Criminal P, C. Now, Section 422, Criminal P. C, provides:
If the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant Cr his pleader, and to such officer as the Provincial Government may appoint in this behalf, and the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under Section 417, the Appellate Court shall cause a like notice to be given to the accused.
5. This brings me directly to the point before me, and I wish first of all to read Section 428, Criminal P. C. It says:
The Appellate Court shall then send (Cr the record of the case, if such record is not already in Court, After perusing such record, and hearing the appellant Cr his pleader, if he appears, and the Public Prosecutor, if .he appears, and, in case of an appeal under Section 411, subsection (2), Cr Section 417, the accused, if he appears, the Court may, If it considers that there is no sufficient ground for interfering, dismiss the appeal, Cr may ...
And here follow four clauses which are not important for the purposes of this discussion, other, wise than indicating what enormous powers the Court has as a Court of Appeal.
6. Now, in the case of Nathu Ram V. Godse a counsel has to be employed under the rules of this Court at the Crown expense for giving legal assistance to him at the hearing of the appeal. The first question is whether the counsel employed to assist him at the hearing of the appeal is 'his pleader' within the meaning of Section 423, Criminal P. C. In England, there is a statute of 1903 called the Poor Prisoners' Defence Act, 3 Edw. vii, c. 38, which empowers the Committing Magistrates and the Judges to assign in certain circumstances, solicitor and counsel to a person whose means are insufficient to enable him to -obtain legal aid in the preparation and conduct of his defence. The Act was passed in the interests of accused persons, and there is nothing in the English practice or the directions issued by this Court which can be invoked to support the argument that the Court has-the power to engage counsel for an accused person against his wishes. The matter came up for consideration in Emperor v. Sukh Dev and Ors. A.I.R. (16) 1929 Lah. 705 : 81 Cr. L. J. 977. In that case Shadi Lai C. J. said:
It must be remembered that a pleader is the representative of the persona for whom ho appears; consequently the acts done by the former are subject to certain recognized principles, binding upon the latter. The employment of counsel places him in a confidential position, but no such relation be established between a client and a counsel who is neither chosen by him nor given to him with his express or Implied consent, but assigned without his sanction by the Court at the instance of the prosecution.
7. The question whether a Court can allow counsel to appear for a prisoner without his consent arose in Reg. v. Yscuado (1852) 6 cox. c.c. 385 and was answered in the negative. Erie, J., in that case said:
I do not think I have any authority to assign counsel to a prisoner without his consent, I should be very glad if I could do so, but by allowing counsel to appear without any communication with the prisoner, and without his sanction, I might be authorising a defence which the prisoner himself would never have made, and yet for which he must be responsible.
8. It is clear that the pleader who may be employed by the Court to give legal assistance to Nathu Earn V. Godee at the hearing of his appeal is not 'his pleader' within the meaning of Section 423, Criminal P.C. Again, it is true that every Court is the guardian of its own records and master of its own practice. So at least says Mr, Broom in his celebrated work on Legal Maxims that the practice of the Court in the law of the Court. At p. 83 of Broom's Legal Maxims, 10th Edition, we find:
Lastly, even where the course of practice in criminal law has been unfavourable to the accused, and contrary to principles of justice and humanity, it has been held that such practice constitutes the law, and cannot be altered without the authority of Parliament.
As already stated, the practice o this Court in such matters is evidenced by the resolution cited above. Now, the High Court is competent to make rules for regulating its own practice and proceedings and the practice and proceedings of all Courts subordinate to it in exercise of the powers vested in the High Court in this behalf under Section 554, Criminal P. C., but the power to make rules for regulating its own practice and proceedings and the practice and proceedings of all Courts subordinate to it is subject to the proviso that the rules made and framed under Section 554, Criminal P. C, shall not be inconsistent with the provisions of the Code Cr any other law in force for the time being. The question is whether an appellant who is in jail, and who has presented his appeal through the officer in charge of the jail in which he is confined, is entitled, if he so desires, to appear in person, at the hearing of his appeal if he is not represented by a pleader. This very question arose in Queen-Empress v. Pohpi and Ors. 13 ALL. 171 : 1891 A. W. N. 48 P.B.. In that case Edge C. J. held:
In my opinion the hearing of the appeals can proceed and they can be disposed of by the Court under Section 423 of the Code, although the appellants are not present and are not represented by pleaders.
Straight and Young JJ. concurred with the opinion expressed by Edge C. J. while Mahmood J. recorded dissent from the opinion expressed by the Majority of the Full Bench and held that the principles of audi alter am partem and ubi jus ibi remedium and the provisions of Section 423 of the Code,, as to notice of appeal, imply that, where an appeal is admitted and not summarily rejected under Section 421, the appellant must have a real opportunity of being heard, and that in the passage in Section 433 'after perusing the record and hearing the appellant Cr his pleader, if he appears,' the word 'he' refers to the pleader, and must not be read as 'either of them,' that in any case, the words 'if he appears' make it a condition precedent to the disposal of an appeal under the section that the appellant is heard, Cr at least has the choice of appearing; that the word 'appears' refers to the personal appearance of the appellant; and that an appeal which has been admitted cannot be disposed of unles3 the appellant is before the appellate Court, Cr can be heard within the meaning of Section 423. Again, the matter came up for consideration before a Pull Bench of the Allahabad High Court in Emperor v. Lai Bahadur 50 ALL, 543 : A.I.R. (15) 1928 ALL. 84 : 29 Cr. L. J. 334. The question referred to the Full Bench concerned the right of a convict in jail whose appeal was pending to appear in Court in person, if he so desired, on the date fixed for the hearing of the appeal and to argue his case in person. The case Originally came up before Boys J. who being of the opinion that the appellant had a right, if he so desired, to be present in person at the hearing, asked for a reference to a Full Bench, in view of the decision of the Court in Queen-Empress v. Pohpi 13 ALL. 171 : 1891 A. w. N 48 P.B.. In the referring Order Boys J. said:
By Section 422, Criminal P. C., this Court is Ordered to give notice to the appellant Cr 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 to be 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 wish to do so. If on receipt of the notice the appellant desires to be heard in person, I think to refuse to mate 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.
On a consideration of the whole matter Lindsay, Boys and Iqbal Ahmad JJ. found:
We have considered the decision of the Full Bench of this Court in Queen-Empress v. Pohpi 13 All. 171 : 1891 A. W. N. 48 (F.B.) 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 be desires to do so and has no pleader to represent him. Similarly, we find ourselves unable to agree with the learned Judges in case of Bam Parshad v. Emperor A.I.R. (14) 1927 Oudh 812 : 28 Cr. L. J. 679 where they say ; 'As he appealed from jail he was not entitled to appear in person to argue his appeal.' 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.
9. In Emperor v. Jalam Bharat Sing I. L. E. (1938) Bom. 367 : A.I.R. (25) 1938 Bom. 279 : 39 Cr. L, J. 578, the convict presented his appeal under Section 420, Criminal P. C, and the question was whether he had a right to be heard in person when the appeal came up for admission. In that case Beaumont C. J. said:
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 light to act upon the notice and come to the Court to argue his appeal if he so desires.
10. Beaumont G. J. disposing of the case added:
I would add that it has been held by the Full Bench of the High Court of Allahabad, Emperor v. Lai Bahadur SO All. 543 : A. I. R, (15) 1928 All. 84 : 29 Cr. L, J. 334 F, B. 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 Cr by a pleader. I agree with that ruling....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.
WassCodew J. concurred with the opinion expressed by Beaumont 0. J. and while holding that an accused person appealing from jail has no right to be heard in person at the time of the admission of his appeal said:
The case is, however, different when notice is given to the appellant under Section 422, Criminal F. C. See Emperor v. Lai Bahadur 50 All, 543 : A.I.R. (15) 1928 All. 84 : 29 Cr. L. J. 334 (F. B.)
It is true that the opinion expressed by Beaumont 0. J. and WassCodew J. in Emperor v. Jalam Bharat Sing I. L. R. (1938) Bom. 357 : A.I.R. (25) 1938 Bom. 279 : 89 Cr. h. 3. 578 was an obiter dictum for the interpretation of g. 423, Criminal P. C. did not arise directly in that case but the opinion expressed in that case by that eminent Chief Justice Sir John Beaumont with which WassCodew J. concurred is entitled to very great weight.
11. Again, in Qalos Hirad and Anr. v. The King, A.I.R. (31) 1944 P. C. 93 : 46 Cr. L, J. 105 a criminal appeal from Protectorate Court of Somaliland, their Lordships of the Privy Council observed:
It seems to their Lordships that the provisions as regards the right of a convicted person are not of a merely directory character. Sub-section (2) provides that poor persons in the position of the appellants having been convicted at the trial are entitled as of right on lodging an appeal to have an advocate assigned to them for the preparation and for the conduct of such appeal.... There does not seem to be any reason for a very technical construction to be given to the subsection in question. The necessity for an assignment of counsel for the purpose of 'conducting an appeal' seems to their Lordships to involve the necessity of seeing that it will be possible for the counsel to be present at the hearing. An appreciation is called for the difficulties which, in such a case as their Lordships have before them, might well make it impossible for counsel to cross 150 miles of sea by an adequate ship in time to be present on the date fixed for the hearing of the appeal. These considerations seem not to have, been present to the mind of the Judge sitting as the appeal Court and in the view of their Lordships the provisions of 8. 3, Poor Persons' Defence Ordinance, so far as regards the appeal have as a matter of substance been disregarded. They will add that there does not appear to have been any special reason why the hearing of appeal should not have stood over for a few days to enable Mr, Muni Lai to attend and their Lordships are informed that he in fact arrived in British Bomaliland on 2nd July 1942, so that a comparatively short adjournment would have enabled him to come and argue the case Cr appeal.
12. Now, whatever distinction in matters of detail may exist between the case reported in Galos Hirad v. The King A.I.R. (31) 1944 P. c. 93 : 46 Cr. L. J. 105 and the present case, one thing is certain that the mere necessity for an assignment of counsel to the convict-appellant for the preparation and conduct of his appeal seemed to their Lordships to involve the necessity of seeing that it will be possible for the counsel to be present at the hearing. Section 3, British Somaliland Poor Persons' Defence ordinance No, 26 of 1939 provides as follows:
(1) Where it appears, for any reasons, that it it desirable, in the interests of justice, that an accused person should have legal aid in the preparation a ad conduct of his defence at his trial and that his means are insufficient to enable him to obtain such aid
(a) a certifying officer upon the committal of the accused person for trial; Cr
(b) a certifying officer at any time after reading the depositions recorded in any inquiry held under Chap. 16, Administration of Criminal Justice ordinance into any of the offences specified in the schedule hereto; or
(c) a certifying officer upon the framing of a charge against a native on trial for an offence against 3. 304, Penal Code, Cr an attempt at, Cr the abetment of such offence, may certify that the accused person ought to have such legal aid, and if it is possible to procure an advocate, such accused person shall be entitled to have an advocate assigned to him.
(2) Any such accused person to whom an advocate has been assigned under the provisions of Sub-section (1) of this section, shall, if convicted at such trial, be entitled, on his lodging an appeal with the protectorate Court of appeal, to have an advocate assigned to him for the preparation and conduct of such appeal.
13. Now, the position is this: By Section 422, Criminal P. C. this Court is Ordered to give notice to the appellant Cr his pleader of the time and place at which such appeal will be heard. The convict-appellant in the present case has no pleader to represent him, and, that being so, the Court of appeal must give notice to him and if on the receipt of the notice the appellant expresses a desire to appear in person at the hearing of his appeal, 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.'
14. Before leaving this point, I may add that in England the law on this point is contained in B. 11, sub-a. (l), Criminal Appeal Act, 1907 (7 Edw. VII C. 28). Section 11 reads:
An appellant, notwithstanding that he is in custody, shall eo entitled to be present, if be desires it, on the hearing of his appeal, except where the appeal is on some ground involving a question of law alone, but, in that case and on an application for leave to appeal and on any proceedings preliminary Cr incidental to an appeal, shall not be entitled to be present, except where rules of Court provide that he shall have the right to be present, Cr where the Court gives him leave to be present.
15. For the foregoing reasons, following the view expressed by Lindsay, Boys and Iqbal Ahmad JJ. in Emperor v. Lai Bahadur 60 ALL. 543 : A.I.R. (15) 1928 ALL. 84 : 39 Cr. i, J. 334 P.B. I 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 of his own choice.
16. The result is that I allow the petition of Nathu Earn V, Godse and permit him to appear in person at the hearing of his appeal in the High Court. He shall be brought at the hearing of Criminal Appeal No. 66 of 1949 to argue his case.