EMPEROR Vs. ABDUL KADER ALLARAKHIA

JUDGEMENT

(1.) We are of the opinion that this appeal must be allowed and that the conviction and sentence must be set aside and the case sent to the next Sessions to be dealt with according to law. As our reasons for this result proceed from somewhat different angles, I will state the grounds which seem to me to make this course inevitable.

(2.) The appellant, who is a widower, was tried before Mr. Justice Lokur and a special jury under Section 302 of the Indian Penal Code for the murder of his only child, a girl of about fourteen years of age, and was found by the unanimous verdict of the jury guilty and sentenced by the learned Judge to transportation for life.

(3.) At the commital proceedings the appellant was asked by the learned Magistrate whether he wanted Government to make arrangements for a counsel for his defence or whether he would make his own arrangements, to which the appellant replied: "I want Government to make arrangements for counsel in my defence" In spite of this, the appellant was, at the opening of the Sessions of this High Court in July, 1945, arraigned to plead without any counsel having been instructed on his behalf. How this came about we do not know, but it was in my opinion quite wrong. So arraigned and asked to plead, the appellant said that ha was guilty, and the learned Judge quite properly in the circumstances felt that he was unable to convict the appellant on this confession of guilt. The Clerk of the Crown, however, recorded in his book the following: Pleads guilty, but he will be tried for murder.