Decided on January 10,1938

EMPEROR Appellant

Referred Judgements :-



- (1.)This is an appeal by the accused from jail in which the accused asks to be allowed to argue his appeal. As we have had a good many cases recently in which accused persons in jail have preferred a request to be allowed to come and argue their appeals when they come up for admission, we thought it right to ask the learned Government Pleader to look into the matter and refer us to any authorities on the subject, since there does not appear to be any ruling of this Court upon the question.
(2.)Section 419 of the Criminal Procedure Code provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall be accompanied by the documents therein referred to. Section 420 provides that if the appellant is in, jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper appellate Court. It is under that section that the present appeal is presented through the officer of the jail. Section 421 provides that on receiving the petition and copy under Section 419 or Section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. Then there is a proviso that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Then Section 422 provides that if the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader.
(3.)The first question which arises for consideration is whether the proviso ; to Section 421 directing that an appeal shall not be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard, applies to an appeal presented under Section 420. In my opinion, the proviso docs not so apply. The express reference in the substantive part of Section 421 to a petition presented under Section 419 or Section 420 indicates that the omission of any reference to Section 420 in the proviso is deliberate, and that the proviso is only intended to apply to an appeal presented under Section 419, that is an appeal presented direct to the Court, and not through the officer in charge of the jail. The legislature may well have thought that it would occasion serious inconvenience and expense to allow every convicted person who desires to appeal from jail the right to come to the appellate Court to be heard. We get many appeals from jail, which appear to be based on nothing more substantial than the hope which " springs eternal in the human breast," and it would be a serious matter if all such appellants were entitled as of right to insist on being brought at the public expense, often from: a jail in a distant part of the presidency, to Bombay, to argue their appeals.

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