SURAJPRASAD PANCHAMLAL CHAURASIA Vs. YESHWANTA VISHWANATH DUKRE

JUDGEMENT

(1.) MADANGOPAL , the seventh non-applicant in this revision, is a security prisoner detained under Rule 26, Defence of India Rules. Being a non-applicant to this revision, notice was issued to him in the usual way through the Superintendent of the Nagpur Jail. He made the following endorsement on the summons: "Received the summons. I want to appear before the Court." The Superintendent returned the summons with the following remarks: Served and returned, Mr. Madangopal is confined in the jail as class I security prisoner. In case he is permitted to appear in the Court on the date of hearing, the proper order of attendance of the prisoner in Court may kindly be drawn up.

(2.) THE case was then put up to me for orders and passed the following order: The seventh non-applicant is not represented by counsel. He has a right to be heard and so will be produced in Court on the date of the hearing which will be intimated to the proper authorities. If however he is subsequently represented by counsel the permission will be withdrawn. Also if he appears in person counsel will not be allowed to represent him.

(3.) AS soon as my order was brought to the notice of Government it very properly asked for an audience through the Advocate-General. This was granted, and now I have to deal with the Provincial Government's challenge to this Court's authority and jurisdiction to make an order for production in a ease of this kind. As the matter is of importance I asked Mr. Walter Dutt very kindly to act as amicus curiae. He consented, and I am greatly indebted to him for his assistance, as also to the learned Advocate-General. Having considered the matter carefully I am of opinion that the High Court has power to direct the attendance of security prisoners for purposes such as the present, but that as a matter of discretion it will not make such an order if the detenu can be adequately represented by counsel or otherwise, or if his interests are not likely to suffer by reason of his non-attendance, and never unless it is essential in the interests of justice that he should be produced. I confess the question is one of difficulty and involves deeper considerations than would appear at first sight. It will be necessary to consider the effect of non-appearance in a variety of cases in order to appreciate what I conceive to be the true rule.