LAL BAHADUR Vs. EMPEROR

JUDGEMENT

(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/s. 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/s. 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 25 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/s. 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.