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Prinsep and Stanley, JJ -
(1.) It is necessary to consider only one matter raised in this application for revision.
(2.) The learned pleader contends that, inasmuch as the Appellate Court has under Section 428 of the Criminal P. C. taken additional evidence, the prisoner whose appeal has been dismissed has the right of appeal to this Court. He relies on the case of Queen v. Mohesh Chander Chattopadhia (1865) 2 W.R. Cr., 13, contending that Section 428 of the Code of Criminal Procedure, 1898, is in the same terms as that of Section 422 of the Code of 1861, under which that case was decided, and that consequently this Court is bound to follow that case. We observe that in addition to the case cited there is a judgment of a Full Bench,--In the matter of Ram Narain Singh (1863) Unreported,--heard on 14 October 1863 in which Peacock, C.J., Seton Karr, Louis Jackson and Elphinstone Jackson, JJ. (Kemp, J., dissenting), expressed the same opinion on the effect of Section 422 of the Code of 1861. 2. Section 422 of the Code of 1861 was in the following terms: In any case in which an appeal has been allowed it shall be competent to the Appellate Court, if it think further enquiry or additional evidence upon any point bearing upon the guilt or innocence of the accused to be necessary, to direct such enquiry to be made and additional evidence to be taken. The result of the further enquiry and the additional evidence shall be certified to the Appellate Court, and the Appellate Court shall, thereupon, proceed to pass such judgment, sentence or order as to such Court shall seem right.
(3.) By the amending Act VIII of 1869 this was repealed and re-enacted thus: In any case in which an appeal has been allowed, the Appellate Court if it thinks further enquiry or additional evidence upon any point bearing upon the guilt or innocence of the appellant to be necessary, may direct such enquiry to be made and additional evidence to be taken. The result of the further enquiry and the additional evidence shall be certified to the Appellate Court and the Appellate Court; shall thereupon proceed to dispose of the appeal in the manner prescribed by Section 419. Unless the Appellate Court otherwise, direct, the presence of the appellant may be dispensed with when further enquiry is made or evidence taken. The provisions of Chapter XII relating to summoning and enforcing the attendance of witnesses and their examination shall, so far as may be, apply to witnesses examined under this section.;
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