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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 18 of 155)
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property acquired with the ancestral stock while they lived as members
of a joint family ? " The Subordinate Judge in his judgment says : " From
the evidence of the defendants' witnesses, and the tenor of the letters
of the parties produced in this case, it is shown that the parties had sepa-
rate concerns, and each received the profit due to bis share in respect to the
villages in which his own or his son's name was recorded as proprietor or
mortgagee, separately, and for his exclusive use." This is a finding that, as
alleged by the defendants, there had been separation, and that eaoh[170] of
the parties, although no separation had been made by metes and bounds, bad
had separate enjoyment of his share of the property. When the case came
before the High Court on appeal the finding of the High Court on the
question was ; " Having very carefully considered the evidence and the
arguments of the learned Counsel and pleaders on either side, we have
arrived at the conclusion that no sufficient reason for disturbing the judg-
ment of the able and experienced Subordinate Judge has been shown ; on
the contrary, we agree with the lower Court that it is proved that the
ancestral property was but of small value ; that the two brothers made a
partition of their ancestral property though they continued to live under the
same roof ; that Debi Din engaged in business on a much larger scale than
did Umrao, who was in the service of the Government as a jamadar in the
Opium Department ; that the two brothers sometimes made purchases
separately and sometimes jointly with their children or with strangers, but
in all joint transactions the interest of each purchaser was limited to the
amount contributed by him." t This again is a definite finding that a parti-
tion had been made between the two brothers. It has been contended on
the part of the appellant that the onus of proof had been improperly put
upon the plaintiff to show that the family was joint. It does not appear
from the judgments that the onus was so put upon the plaintiff. The
case was fully gone into, the evidence offered by either party was received,
and the whole of it was considered by both the lower Courts. It is not
shown in any waythat there has been any error in law in putting the onus
of proof upon the plaintiff. There are two concurrent judgments of the
lower Courts upon the question of fact, and there is no ground for the
present appeal.

Their Lordships will therefore humbly advise Her Majesty to affirm
the judgment of the High Court and to dismiss the appeal. As the res-
pondent does not appear there will be no order as to costs.

Appeal dismissed.

Solicitors for the appellant : Messrs. T. L. Wilson and Co.



13 A. 171 (F.B.) =11 A.W.N. (1891) 48. 1891

[171] FULL BENCH. FEB. 6.

Before Sir John Edge, Kt. t Chief Justice, Mr. Justice Straight, Mr. Justice FULL

Mahmood and Mr. Justice Young. BENCH.

13 A. 171


[6fch February, 1891.] 11 A.W.N.

Criminal appeal Appeal preferred by appellant in jail Power of appellate Court to '"91) 48.
dispose of appeal in absinie of the appellant Criminal Procedure Code, ss. 420,
421, 422, 423.

Where an appeal preferred under s. 420 of the Criminal Procedure Code, has
been admitted by the appellate Court, and notice has been properly given under
s. 422 and record of the oase has been sent; for and perused under s. 423, the
appellate Court is competent, under the lasl-mentioned section, to dispose of the
appeal though the appellant is not present and is not represented by a pleader.

The only limitation placed by s. 423 on the powers of the appellate Court is
that the Court, before disposing of the appeal, must peruse the record, and, if
the appellant is present or is represented by a pleader, the appellant in person
must be heard, or the pleader must be heard.

So held by the Pull Bansh, Mihtnood, J. dissenting.

Held, by Mahmood, J , contra, that the principles of audi alUram par/em and
ttbi just ibi remrdiwn and the provisions of s. 422 of the Code, as to notice of
appeal, imply that, where an appeal is admitted and not summarily rejected
under s. 421, the appellant must have a real opportunity of being heard ; that in
the passage in s. 423 " after perusing the record and hearing the appellant or his
pleader if he appears, " the word " he "refers to the pleader, and must not be read
as "either of them ; " that, in any case, the words "if he appears" make it a
condition precedent to the disposal of an appeal under the section that the appel-
lant is heard, or at least has the choice of appearing ; that the word " appears "
refers to the personal appearance of the appellant ; and that an appeal which has
been admitted cannot be disposed of unless the appellant is before the appellate
Court, or can be heard within the meaning of s. 423.

Stmble, per Mahmood, J., but the High Court in appeal is oompetant to send
for a criminal to appear before it to explain a difficulty in his case.

[R., Rat. Unrep. Or. Gas. 739 (740).]

THESE were five criminal appeals in which a reference to the Fall
Bench was made by Edge, 0. J., on the recommendation of Mahmood, J.
The appeals were presented by the appellants, who were in jail, on the
30th June 1890, under s. 420 ot the Criminal Procedure Code, and was
duly forwarded to the High Court by the officer in charge of the jail. The
appeals were admitted by an order of Brodburst, J., dated the 15th July
1890; the date fixed for [172] their hearing was the 5fch August 1890;
and notices under s. 422 of the Code were duly served on the prisoners on
the 23rd July. On the 18th October 1890, the appeals came on for hear-
ing before Mahmood, J., who, on the 25th October, recorded an order
directing that they should be laid before the Chief Justice, with a recom-
mendation that the following question should be referred to the Full
Bench :

" Can an appellant who is in jail, and who has presented his appeal
through the officer in charge of the jail in which he is confined, be said
not to appear, so that he may be heard, within s. 423 of the Criminal
Procedure Code, when by reason of his confinement in jail he cannot
appear, and is without means to instruct a pleader to appear for him ? "

* Criminal Appeal No. 478.


1891 This question was, by an order of Edge, 0. J., passed on the 25th

FEB. 6. Ocbobar,1890, referred to the EullBauoh.and on the 28th October, it came

on for hearing.

PULL M r> w. j Porter, at the request of Mahmood, J,, appeared for the

BENCH, appellants.

18 A 171 ^ r- ^' ^' Hitt> as am ^ GUS curice contra.


11 A W N

(1891) 48* MAHMOOD, J. This case represents five appeals, and under the pre-

sent system of registering them, these five appeals are called as one appeal.
There are five appellants and their names are Pohpi, Ghidda, Mulua,
Dammar and Sipahi.

These names I mentioned in my order df the 18th instant, as persons
who at that time seemed to me to be entitled tD ba heard, that is to say,
hoard by me sitting here as the vacation Judge in charge of the duties
which that office imposed upon me. When the case was called on for hear-
ing, I saw from the record which was before me, that, although this appeal
waa denominated as one appeal.i!; in fact comprised five appeals, and further,
although the Grown was represented before me, not one of these five
appellants was represented. I also had the facb before me that the sentences
from which these five persons were appealing were sentences of rigorous
[173] imprisonment for ten years each on an offence which according bo
law is non-bailable, that is to say, in the natural course of things no
opening was given them by the law for releasing themselves by furnish-
ing bail. It has always been an important question, and doubts have
been raised whether in regard to that class of offences called non-bailable
there is any power in any Court certainly not, as I feel, in the district
authorities to release a person on bail. It was even doubtful as to the
powers of this Court, as the highest Court in these provinces, to release
a person on bail, though I need entertain no doubt on that point now, but
I am quite certain that these prisoners could not have been released by
any other authority on bail than this Court.

I have made these observations in order to render it intelligible why
the doubt arose in my mind, as described in my order of the 18th instant,
and again repeated in the order of reference laid before the learned Chief
Justice, as to whether the matter should go to the whole Court;
because up to the 18th of this month, I had ample reasons to think that
these persons were prisoners confined in jail, and confined in a fashion
in which their legs were tied down by iron chains, not metaphorical iron
chains, but solid, actual iron fetters, I then felt it was right to ask Mr. Datti
Lai, who was holding the brief of Mr. Ram Prasad, to consider whether
or not I could proceed with the appeals. It was by reason of my order of
reference of the 25th October 1890, that this case was laid before the
learned Chief Justice for orders whether it should be heard by the Full
Bench, and his Lordship was pleased to say that it was to be beard by the
whole Court, that is to say, all the Judges of the Court who were in
Allahabad at that day, i.e., to-day.

The case has thus come up before ,tbe whole Court, .and I think,
speaking entirely for myself, that I am obliged, not only to Mr. Porter,
who at my request has appeared on behalf of the absentee prisoners, but
also to Mr. Hill, who has been good enough to act as amicus curia, he
not being at present the Public Prosecutor in charge of the business owing
to some arrangement arrived at by the Government in his absence.


l74j I mention this on purpose, that purpose being thai; in this case 1891
ample opportunity has been given to legal talent to place matters before FEB. 6,
us, who, after all, are bound by the statute to make it easy for us to
understand the difficulty which arose on the one side and the other. FULL

With all that advantage it has bean to me a matter of sorrow that it BENCH,
should be my duty to begin judgment in this case : that sorrow arises 18 T"~i 71
from the fact of my being the dissentient Judge. The reason why I have '

expressly mentioned this is that I am afraid I must take longer time than ** ' 1 '~
otherwise I would have considered necessary to deliver what I have
to say.

I take it to be the unshaken doctrine of human jurisprudence, as
distinguished from local jurisprudence, that whenever there are quar-
rels between two parties and those quarrels have to be decided, those
quarrels cannot go before a person who is a party to them or in anyway
personally interested therein. The maxim, Nemo debet esse judex in
proprla sua causa (no man can be judge in his own cause), is a firm and
sound maxim and it rests, not upon any suspicion as to the honesty
of the Judge or his capacity for the purposes of adjudication, but it rests
upon a thing higher than the technicalities of law. It rests upon the
philosophy that says that human beings are after all human beings, and,
with all honour due to the honesty and integrity of Judges, they are
not to hear cases in which they are themselves concerned.

Now cognate with this is another doctrine which I again call a maxim
of human jurisprudence, as distinguished from local or sectarian juris-
prudence, and that doctrine is that adjudication must be made in open
Court. Such was not the case at some period of English history, because
we all know what the Star Chamber meant, and we also know that that
Star Chamber might have done justice in many cases, but nevertheless
it was abolished by the English when the nation came to find it necessary
to do so for securing justice.

I am not dealing with history and need not refer to that matter
further than for the purpose of this very casa. I maintain, therefore, [175J
that the opinion which I have already mentioned above should be applicable
also to a matter entirely legal, entirely technical and entirely within the
region of law, as distinguish^! from philosophy ; but it is not so distin-
guishable at first sight as it may seem. There is another maxim which
saj's Aud : alteram partem the meaning of which is that no one sE.all be
condemned unheard. So at least says Mr. Broom in his celebrated work
on legal maxims, Also there is equally as great an authority, if indeed
not greater in point of jurisprudence than the authority of that maxim, and
it is the saying of Seneca. Ib is this : " Quicunque aliquid statuerit varte
inaudita alteraaquum licet statuerit, haud aquus fuerit." This translat-
ed in simple English means, " Whoever may have decided anything, the
other side remaining unheard, granted that his decision may have been just,
will not have been just to himself."

This is not only poetry but it is sound juristic sense, and I think it is
the essence of this doctrine which has passed into a maxim, vis., Audi
alteram partem.

Be that so or not, I know this, speaking entirely for myself again,
that it is to me impossible to conceive that any one, uo matter how able
and conscientious he may be, can with certainly undertake to say that he
has arrived at right results in adjudicating upon a quarrel without giving
both parties ample and equal opportunities of being heard.


1891 That this is niy conviction is nob entirely the result of what little I

FEE, 6. have learned of the English law, but it is the result of the study of

Mubammadan jurisprudence also, to which I shall have to call attention,

FULL because that jurisprudence was the standing law of the land when the

BENCH. British rule came to this part of the country. This case is from the

1S "Y~ 171 district of Budaun, a territory ceded to the Honorable the East India

(F B )= Company by the Nawab Wazir of Oudh by the Treaty of the 10th Novem-

11 A WH ber 1801 ^ ide Aifconison>s Treatise, Vol. II, p. 100). That is to say, at the

(18911 48 ' ^ a ' e ^ 'k cession the law in criminal cases was the Muhummadan law

both substantive, and adjective, and it goes without saying, as a matter of

international [176] law, that when this annexation or cession of territory

took place, the British rula took it subject to that law. That law

requires that the litigants shouH be heard before their cases are decided.

Under these conditions it is of course obvious that, unless there was

express legislative sanction given by the sovereign authority to whom this

territory had beau ceded changing the old law, such old law would stand

unchanged, because such is the notion of all civilized nations dealing with

each other, especially in questions of cessions of territory.

I have gone the length of reading out, but I think with full authority,
a couplet of Seneca. It has baen cited at least half a dozen times by
eminent Judges in England, and I am glad to be able to follow them in
this method ; because I want to show that in India, too, poets, more
modern no doubt than Seneca, have spoken out in the same fashion.
One is the following couplet

I will render this into English because in principle it represents exactly
the same idea as that of Seneca, and it is of greatest practical import-
ance inasmuch as it represents the feelings of a native of India.

The couplet may be thus rendered into English :

O friend, the day of judgment is near; how then will it be possible
to conceal (by silence) the blood of those killed ? Even if the tongue of the
dagger will keep silence, the blood on the sleeve will speak out."

T'lis is certainly as good jurisprudence as the lines of Seneca which
I have read out. What does it mean? It means that the hearing of the
litigant is absolutely necessary, and if he is not heard there is no adjudi-
cation and no justice, and the only justice to be got will lie in the day of

Having so far dwelt upon this aspect of the case, I think it
is important for me now to examine in detail the provisions of the
[177] enactment regulating criminal appeals. I have intentionally dwelt
so long on ; :.his part of the case, because I want to show that I take it,
unless the contrary is demonstrated, as an undoubted proposition of
our law, irrespective of statute and irrespective of any considerations other
than the fundamental principles of jurisprudence, that whenever right is
given to any party for purposes of putting forth his case, thereby it is
necessarily implied that he must be heard. In other words, whenever the
doctrine, ubi jus ibi remedium applies, I must take it that when a man
asserts a right he must be heard, because remedy itself implies the right
and the claim to be heard in order to show to the judge that there is
a remedy to be awarded to the suitor.



At first sight it would appear that this is a matter entirely concerned 1891

with interest which I take in such principles, and that it is on that FEB. 6.
account that the question has been referred to the whole Court. But it is

not so. I have before me seven cases, which I had to consider during the FULL

long vacation, in all of which this question was raised. The first case is BENCH.

that of Jarbandhan, which is a revision under s. 439, Criminal Proedure

Code, in which the solitary ground inviting the interference of this Court 18 *" 171

was as follows : (F.B.)

11 A W N

" That the Deputy Magistrate convicted the petitioner on the basis of (1891 ) 40'

fictitious proceedings taken by the police, and the Sessions Judge dismissed
his appeal without instituting inquiry and without summoning and
examining him, the petitioner, and therefore the petitioner prays than
jpstice be done to his cause." The other six cases also contain similar
grounds, and I felt that, if it was true that these persons had never been
summoned to argue their appeals before the Sessions Judge, it might be
very doubtful whether the disposal of the appeal was or was not legal. In
order to decide whether it was legal, I must, after what I have already
stated as to the general doctrine of law and the effect of Audi alteram
partem, proceed to look at the Act itself.

This enactment is called the Code of Criminal Procedure, Act X of
1882. I know that it was preceded by at least two previous enactments,
one being the Criminal Procedure Code of 1861, in [178] which s. 419 is
interesting for the purposes of the question raised. The other Act was
the Criminal Procedure Code of 1872, of which s. 280 is interesting,
because it follows out the same line of thought as s. 419 of the Act of
1861. More important than either of these for the purposes of this case
is s. 423 of the Code of Criminal Procedure, Act X of 1882.

Now in order to understand s. 423 of the Criminal Procedure Code
and only for that purpose, I find it necessary to refer to some other section
of this very Code, to enable me to place the interpretation which I shall
place upon s. 423, the most important section with reference to this case.

The first among these to which I wish to invite attention is s. 404 of
that same Code, which defines what all know to be the well-known rule
of law that " no appeal shall lie from any judgment or order of a Criminal
Court except as provided for by this Code, or by any other law for the time
being in force," This stands there practically as a warning rather than as
a necessity.

The next section is 410. It says : " any person convicted on a trial
held by a Sessions Judge or an Additional or a Joint Sessions Judge may
appeal to the High Court." There in the section the word " may" occurs,
but in the learned argument with which Mr. Hill has favoured us, he did
fully concede that this word "may," as distinguished from "shall," does not
make any practical difference, because the learned Counsel agreed that it
did give a right of appeal as distinguished from an indulgence to be beard
or not to be heard. Then comes s. 419 of that same enactment which
lays down the manner in which a petition is to be written out, because
the section says : " Every appeal shall be made in the form of a petition
in writing presented by the appellant or his pleader, and every such peti-
tion shall (unless the Court to which it is presented otherwise directs) be
accompanied by a copy of the judgment or order appealed against, and,
in cases tried by a jury, a copy of the heads of the charge recorded under
s. 367." Then comes s. 420, which says : "If the appellant is in jail he
may present bis petition of appeal and the copies accompanying the same






FEB. 6.


13 A. 171

11 i.W.N.
11891) 48.

to the officer Cl79] in charge of the jail, who shall thereupon forward
such petition and copies to the proper appellate Court.

I must here pause for a second in order to indicate what I do believe
to be the right interpretation of s. 419. S. 419 prescribes the form of the
petition as distinguished from s. 420, which prescribes the manner in which,
in the exceptional case of a prisoner in jail, the petition of appeal is to be
presented. These are two different matters altogether, and these sections
are not in part materia. I say so, because, having considered it, I look
upon s. 420 to be nothing derogatory to the rule laid down in s. 419.
S. 419 applies as much to a prisoner a jail as to any other appellant and
that section requires "that the petition shall be prepared in the form in
which that section requires, while s. 420 is concerned only with the ques-
tion of presentation of appeals from the jail.

Thus far I have simply indicated that rules about the method of
presentation are not to be confounded either with the right of appeal or
with the right that the appellant has to be heard. There are three things
especially important in cases of persons who are never to be heard, whose
tongue is silent, whose tongue cannot speak to us, because ex hypothesi,
by exigencies of this very Code, it is impossible for their '.tongue to
speak to us.

Then we come to s. 421 of the Code of Criminal Procedure, which
prescribes, not any rule as to the drawing up of petitions, nor any rule
how they are to be presented, but how they are to be disposed of, if the
appellate Court saw this fit. This section provides that "on receiving the
petition and copy under s. 419, or s. 420, the appellate Court shall peruse
the same, and, if it considers that there is no sufficient ground for
interfering, it may reject the appeal summarily, provided that no appeal
presented under s. 419 shall be dismissed unless the appellant or his
pleader has had a reasonable opportunity of being heard in support of the
same. Before rejecting an appeal under this section, the Court may call
for the record of the case, but shall not be bound to do so."

I had some difficulty in undertanding the proviso in this section,
but that difficulty has been removed by the learned argu-[l80]ment
addressed to us by Mr. Hill. It mast, on the maxim of interpretation
expressio unius est exclusio alterious, I am afraid, be taken that this
proviso is limited to appeals which have not been presented from the
jail, and therefore a man in jail, whilst on the one hand he has the
privilege of presenting his appeal in the manner which s. 420 prescribes,
on the other band he has not the privilege of insisting that, he should
be heard, or even his pleader, if he retains one, after sending up an
appeal from the jail.

I have no doubt that, for purposes of summary rejection of appeals,
this proviso to s. 421 is helpful to the cause which Mr. Hill has under-
taken to advocate, namely, that the presence of the prisoner appellant is
not necessary as a condition precedent to the action of the Court in
rejecting such appeals summarily. I do not wish however to dwell upon
this aspect of the case, nor upon the somewhat invidious distinction
which the Legislature in its wisdom has thus thought fit to draw. I do
not do so because these five appeals were not summarily rejected.

They were admitted by my brother Brodhurst ; they are standing
appeals on the register of this Court, and they cannot be disposed
of except according to the method of procedure which this enactment



This brings me directly to the point before us, and I wish first of all

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 18 of 155)