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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 19 of 155)
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to read s. 422 of the Criminal Procedure Code. It says : " If the appel- J?EB. 6.
late Court does not reject the appeal summarily, it shall cause notice to be
given to the appellant or his pleader, and to such officer as the Local PULL
Government may appoint in this behalf, of the time and place at which BENCH.
such appeal will be heard, and shall, on the application of such officer,
furnish him with a copy of the grounds of appeal ; and in cases of appeals 13 A. 171
under s. 417, the appellate Court shall cause a like notice to be given to (F.B.)=
the accused." H A.W.N.

Now over the word " notice " there may in some cases be difficulties (1891} 48.
of interpretation, but that difficulty I do not feel in this case because,
" notice " is a well understood term of law. What does the word mean ?
I will interpret it. Notice is the warning to a [181] party to a Us to
enable him to resist a possible result, that is to say, notsmerely informa-
tion that that which is threatened will, or may possibly, happen in a
matter in which he, the person to whom notice is given, is boncerned, but
also that he can avoid such result if he takes proper measures to do so.
I have put the thing so generally because this explanation of the word
"notice " is ample enough to cover cases arising out of Co.mmon law or
Chancery law or the Criminal law, and indeed all departments of law.

This being so, never has it been possible for me Co be other thaii
unwilling to credit the Legislature with surplusage, or with laying
down things that it did not mean or using words which had no purpose in
them. Here I have got to deal with the word " notice " and the object of
its being used with the specification of " time and place at which such
appeal will be heard." Did the Legislature intend by using these words that
the person to whom such notice was to be given was to be tied by the leg by
actual iron chains so as to disable him from avoiding the result, namely,
the dismissal of his appeal, and yet given him notice. I cannot hold any
such thing. I find it impossible to do so, for then s. 422 would never have
existed, for the whole section in most cases would have been a surplusage.
The last part of that section also leads to the same conclusion, because
there the case contemplated is an appeal presented not by the prisoner
but by the Crown, under the special powers given to it by 3. 417, against a
verdict of acquittal. There also the word " notice " occurs. We hear not
of the pleader of the accused, but we find him mentioned only as the per-
son to whom notice is to be given. We also have to look at s. 427, which
prescribes that when an appeal is presented under s. 417, the High Court
may issue a warrant directing that the accused be arrested and brought
before it or any Subordinate Court, and the Court before which he is
brought may commit him to prison pending the disposal of the appeal or
admit him to bail."

I am particularly anxious to call attention to this provision of the law,
because, by dint of this power which I have, I may make it impossible for
the appellant before me to avail himself of the [182] notice as it is under-
stood by me and as I have described it. For example I may, ex hypothesi,
first take very good care to imprison the person far away from any Court
house, and then to give the notice required by the last part of s. 422.
What would be the use of such " notice " if it meant other than what I
have said ?

However, the matter does not really rest so much on the analogy of
this section as it does upon the interpretation to be placed upon s. 423
itself. That section I feel it difficult to interpret in the manner . in which
Mr. Hill desires to interpret it, and that difficulty arises mostly on account


A VII 15


1891 of the fact that English is not my tongue. I take it to be a rule of law,

FEB. 6, as distinguished from anything connected with philology, that a sentence

is to be read in the grammatical sense, that is to say, such grammar

FULL ag j g known to the authority which has to deal with the interpretation of

BENCH the statute. I have read the first part of the section, which is important.

~ ' It runs thus : " The appellate Court shall then send for the record

' of the case, if such record is not already in Court. After perusing such

11 AWN recorc ' an d bearing the appellant or bis pleader, if he appears, and the

(1891) 48 ' P u b u . Prosecutor, if he appears, and, in case of an appeal under s. 417,

' the accused, if he appears, the Court may, if it considers there is no

sufficient ground for interfering, dismiss the appeal, or may - " and here

follow four clauses which are not important for the purposes of this

discussion, otherwise than indicating what enormous powers the Court

has as a Court of appeal.

The difficulty which I have had so far as the interpretation is con-
cerned consists in the second sentence of the first paragraph of the section
which I have read : " After perusing such record ;" every one will agree
that that" is a condition precedent to a dismissal of an appeal. "And
hearing the appellant or his pleader, if he appears" We have been asked
by Mr. Hill to hold that the pronoun, " he '' as it occurs there, by dint
of nothing other than a comma, should be read to mean, " either of them."
In other words, the learned counsel has argued, and I have listened to his
argument with much attention, that the phrase "after perusing such record
and hearing the appellant or his pleader, if he appears " means that the
[183] word " he " there is alternatively used because the word " or " is
disjunctively used, and is a disjunctive conjunction. There may be
difficulties, purely as a matter of interpretation, over the word "or"
whether it always means that ; but I cannot take it that the word " he "
there means " either of them " The Legislature could have easily made
that clear if they meant " either of them ;" but " he " never means "either
of them." According to the general rule of interpretation, the pronoun
must refer to the substantive nearest to it, and therefore the word " he "
must be taken to refer the word nearest to it, viz., " pleader."

This, however, is not the only important matter to me, because I will,
for the sake of argument, concede that " he " means, either of them, and
read the statute thus after perusing such record and hearing the appel-
lant or bis pleader if either of them appears, &c."

Eeading the section thus my difficulty becomes greater, because I have
got to deal then with the word "if." What is the meaning of the word
"if." If I remember rightly "if" is only one of the paradigms of the
English word to "give," the which word only means "granted," and
" granted" means a "condition precedent," a very much bigger phrase.
Therefore, reading it in this light, we have this, "granted that he appears,"
namely, that this must necessarily be a condition precedent for the
disposal of the appeal, that either the appellant is beard or at least choice
is given to him to appear. If the word " z/" did not mean choice, it is a
valueless word. It is no use tying a person by the leg, making it impossi-
ble for him to appear, and then saying to him we are to hear you "if" you
appear, when all the while we know that we have made his appearance

The next word to be interpreted is the word "appears." The word
" appears" implies the possibility of the person's presence in Court, or
any such presence which is contemplated by rules of procedure and
recognised as equivalent to appearing in person.



It is to me a matter more or less of surprise, that whilst in the Coda 1891
of Civil Procedure (Act XIV of 1882), s. 36, there are specific [184] rules FEB. 6.
laid down prescribing that the appearence of the parties may be either in
person or by pleader, no such general rule exists throughout the whole of FULL
this Code of Criminal Procedure. Therefore the word "appears," as it BENCH.

occurs in s. 423 of the Code of Criminal Procedure must meau that the '

man accused or the prisoner must appear himself, and I can well under- ' '

stand it, because there is internal evidence that the law did so intend. If < F - B -) ="
the word "appears," had any other meaning there would have been no
necessity of referring to "his pleader," for it would have been equally enough *
to say ; " after perusing such record, and hearing the appellant, if he
appears, &c."

The powers which the Court of appeal in Criminal cases possesses
are depicted in this very section, and I need not read it. The clauses (a).
(b), (c) and (d) show the enormous powers which the Courts of appeal
possess in regard to conviction. Fortunately those powers do not include
the power of enhancing sentence, a matter which did at one time form
the subject of legislative enactment in Act X of 1872, but still even minus
that power, the cowers of the Appellate Court are very vast, and undoubt-
edly in a case when the appellate Court hapoens to be this Court, because
this Court is also a Court of revision under s. 439 of the Code of
Criminal Procedure.

Before I pass on to the revisional powers of this Court, which I
consider wholly relevant by analogy to this point, I must refer to s. 424
only for the purpose of deriving the rule as to my interpretation of the
previous section. This section says in the first part, " the rules contained
in Chapter XXVI as to the judgment of a Criminal Courb of original
jurisdiction shall apply, so far as may be particable, to tbe judgment of
any appellate Court other than a High Court ", -then comes the proviso,
" Provided that unless the appellate Court otherwise directs, the accused
shall not be brought up or required to attend, to hear judgment delivered."

I mention the proviso, because it shows that this proviso would have
been an absolute surplusage wholly unnecessary unless, upon general
principles, the contemplation of the law was chat the accused should be
present to hear the judgment.

[185] la passing 01 then to s. 439 of the Code of Criminal Pro-
cedure, I find that it is important to refer to the second paragraph of it :

" No order under this section shall be made to the prejudice of the
accused unless he has had an opportunity of being heard either personally
or by pleader in his own defence."

In the course of consultation which I have had the honour of having
with the learned Chief Justice and my brother Judges, some difficulty
arose in my opinion as to the meaning of the word "prejudice." How-
ever, putting that aside, one thing is certain, that we cannot enhance
punishment by dint of s. 439, unlsss we give the accused an opportunity
of being heard, either personally or by pleader.

Now the practice of this Court in these cases, called " Nemo cases,"
has been, I know, different from the view of the law which I have now
taken ; but the reason of that, I believe, is that " Mr, Nemo " never appear-
ed in person and never raised the question which has given rise to
the present difficulty. There must be some kind of appearance, either
in person or by pleader, before any powers under s. 439 can be exercised
to the prejudice of the prisoner. I am anxious, in order to fortify what
I have just said as to s. 439, to read tbe exception 'contained in s. 440;



1891 " No party has any right to be heard, either personally or by pleader,

FEB. 6. before any Court when exercising its powers of revision ; provided that

the Court may, if it thinks fit, when exercising such powers, hear any

FULL party either personally or by pleader, and that nothing in this section

BENCH, shall be deemed to affect s. 439, paragraph 2."

Two points are to be deduced from this section. First the objecb of

I F R 171 enacting this section would bave been wholly unnecessary unless this

w'w 8 fc a fc u ' ie proceeded upon the well recognised doctrine of law, tbat wherever

11 Ta kbere is a righ 6 fco nave a ^ s there^is an implied right to be heard, and

that this section makes an exception'to the general rule. This is a case

of expressio unius est 'exclusio altering.

Then comes the proviso, which is equally important, bacausa it
shows that even though an application for revision may be disposed
[186] of in the absence of the applicant without hearing him, we are not
so to dispose of them as feo " prejudice " the accused within the meaning of
the second paragraph of s 439.

Having so far dealt with these aspects of the case, as they have
appeared to me both in point of law and upon points which I think bave
even higher -basis than tbat doubtful phrase, I think it is necessary for
me to say that if it is true that the law of British India makes it possible
for me sitting here as a Judge, in the first place, by dint of my writ to
order a person to be imprisoned and tied by a chain, then in the next
place to require the mockery of giving him notice, the mockery of asking
him to attend, when I, by 'dint of the exercise of my own power have
made it impossible for him to attend, and then have the solemn mockery
of having his name called out ; if this is the law of British India, I hope
the sooner it is abrogated the better.

I am of opinion that we cannot proceed to hear this case, unless the
prisoners are before us, or can be heard 'within the meaning of s. 423 of
the Criminal Procedure Code.

I wish just to add one observation and that is this. There has
been a doubt as to whether or not this Court can send for a criminal to
appear before it to explain a difficulty in his case. I have no doubt
that this Court has that power.

EDGE, C.J. The only question which I propose to consider is
whether these appeals can ba disposed of in the absence of the appellants,
who are not represented by a pleader. That question, it appears to me,
depends on the construction of s. 423 of the present Code of Criminal
Procedure (Act X of 1882). That section applies to cases in which
appeals have been presented and admitted. As I understand, the conten-
tion is that in the case of au appeal which has been admitted, the appellate
Court, notwithstanding that notice has been properly given under s. 422
of the Code, notwithstanding that the record of the case has been sent for
and perused by the Court, is incompetent to dispose of the appeal, if
the appellant, who is not represented by a pleader, is not present,
cannot construe s. 423 as providing any such limitation on the power [187]
of the appellate Court. The limitation wbich it does provide, as I
read the section, is the appellate 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 or his pleader must be heard. The
Legislature contemplated clearly that in certain cases a criminal appeal
might be disposed of without hearing the appellant, or any on his behalf.
For I find under s. 421, the Court is empowered in the case of an appeal



presented under a. 420 through the officer in charge of the jail, to sum- 1891
marily reject it, if on perusing the petition of appeal and the copy of the FEB. 6.

judgment or order, and, in a case tried by a jury, the copy of the heads

of charge, it considers that there is no sufficient ground for interfering, and FULL
that without perusing the record of the case. Again in cases coming up BENCH,
in revision the Court is not bound to hear any party in person or by
pleader, unless the Court proposes to make an order to the prejudice 13 A. 171
of the accused person. That I understand to be an order enhancing (F.B.) =
the sentence or altering a conviction against him to one involving a H A.W.H,
more serious sentence. I cannot conceive the meaning of ss. 439 and 440 (1891) 48.
is that a Court in revision has nob power to reject the accused person's
application for revision, unless that accused person or his pleader has
actually been heard. My brother 'Mahmcod apparently thinks that
uersons who have been convicted and have appealed were hardly treated,
if their appeals are disposed of in their absence. He has suggested that
the Code of Criminal Procedure cannot contemplate the disposal of an
appeal without the hearing of the convicted person .in person or by a
pleader, when the convicted person is, by reason of the sentence which
was passed upon him, prevented from personally attending. It must be
observed that ib is in the power of any convict, if he has means, to be
represented before the appellate Court by a pleader. If he has not the
means to instruct a pleader to represent him, he is not in any wise in a
worse condition than a convict who has bean released on bail, pending his
appeal, and through want of means is unable to attend at the hearing of his
appeal, or to instruct a pleader to represent hitn. It has been the practice
of this Court since its foundation to dispose of these criminal appeals under
s. 423 [188] and the corresponding sections of the previous Acts, although
the appellant did not; appear and was not represented by a pleader ; the
Court in all such cases having taken care that proper notices had been
served under s. 422 of the present Code, or the corresponding sections of
previous Codes, before disposing of such appeals.

I do not propose to express any opinion on the historical aspect of my
brother Mahmood's judgment, or further than I have done on the other
sections to which he has alluded. In my opinion the hearing of those
appeals can proceed and they can be disposed of by the Court under s. 423
of the Coda, although the appellants are not present and are noi represent-
ed by pleaders.

STRAIGHT, J. I am entirely of the same mind as the learned Chief

YOUNG, J. I concur in the judgment of the learned Chief Justice,
and in addition to the argument which he has set forth, I will remark that
s. 426 of the Criminal Procedure Code provides a procedure by which
the appellate Court may, for special reason, order that the execution
of the sentence or order appealed against bo suspended ; and if the appel-
lant is in confinement, that he be released on bail or on his own bond.
Such special provision is provided for special circumstances only, and
therefore is not generally applicable to all cases, seeing that in many cases
(as in the case now under consideration) the appellant is in jail under
a legal warrant, aud cannos appear in any Court until such warrant is set
aside, and such warrant can be set aside only under some special provision
such as that referred to in the special cases to which s. 426, Criminal
Procedure Code, alludes. Similarly in s. 428, the law enacts that the
accused or his pleader shall be present in the event of additional evidence
being taken, unless the appellate Court otherwise directs. This special



1891 provision would not be necessary if, as a matter of course, the appellant
FEE 6. were always fco be oresent in Court during the hearing of his appeal.

[On the 6th February 1891, the appeals came on for hearing on the
FULL merits before Tyrrell, J., by whom they were dismissed.]
BENCH. Appeal dismissed.

13 A. 171

(F.B.) = 13 A. 189 (F.B.),

' [189] FULL BENCH.

Before Sir John, Edge, Kt., Chief Justice, Mr, Justice Straight,
Mr. Justice Br-odhurst, Mr. Just-ice Tyrrell, and Mr. Justice Mahmood.

KODAI SINGH (Plaintiff) v. JAISRI SINGH AND OTHERS (Defendants).
[lOSh December, 1889.]

Appeal Decree conditional upon payment of a certain sum within a specified lime
Appeal presented after the expiration of the time so fixed.

The plaintiff in a pre-emption suit obtained a decree in his favour, conditional
on payment mio Court of a certain sum within a speoifiad time ; otherwise his
suit was to stand dismissed. He did noo comply with the terms of the decree,
but, after the expiration of the term mentioned therein, appealed against it.

Held that the appeal would lie both in tespect of the sum fixed by the decrae
to bo paid by the olaintifi-ippellant, and the discretion of the Court as regards
the period allowed for payment,

[R , 14 A 350 (354> ; 15 A. 529 (531) ; 16 A. 126 (1281 = 14 A.W-N. 3 (4) : 18 A. 223
(226) = 16 A.W.N. 43 (44); 11 O.C. 144 (147); 48 P.R. 1906 = 104 P.L.E.

[N.B. This case and 13 A. 376, t/ra, are one and the same case and so they may be
read together.]

THIS was a reference to the Full Bench made, on the recommendation
of Mahmood, J., under the following circumstances :

The appellant was plaintiff in a pre-emption suit and had obtained a
decree (dated the 28th April 1887) in his favour in the Court of the Munsif
of Gorakhpur, which decree provided that the plaintiff should be entitled
to recover the property in suit on payment of the sum of Bs. 799 within
15 days from the date of decree. The defendants did not appeal, but the
plaintiff appealed in respect of the amount fixed by the Court of first
instance as the pre-emptive price, and he also complained that the time
allowed for Dayment was too short. This appeal was presented on the
27th May 1887, and was on the 2nd February 1888 dismissed by the
lower appellate Court without inquiry inco the merits, that Court holding
that, the term within which the money was to be paid under the decree
of the first Court having expired, the plaintiff had no right of appeal. The
plaintiff then appealed to the High Court.


STRAIGHT, J. The learned Judge apoear* to have refused to enter
into the question of price, because, the R'. 799 not having been paid
within the time directed by the decree of the first Court, he was of opinion
that there was nosubsisbing decree from which an appeal could be preferred.
Strictly speaking, tbeexacb decree which stood at the date of the plaintiff's
filing this appeal was thatofdismissal of his suitbyrdasonof his having failed
to deposit the Es. 799 within 15 days, and, had he appealed against it on that
footing, [190] he might have raised questions as to the propriety of the first



Court's finding on the matter of price and the time allowed him within 1889
which to pay the amount into Court. I think, therefore, in this case it DEC. 10.
must be taken that there was a decree from which an appeal could be
entertained and the plaintiff was entitled to geb a determination of the FULL
question of price, which, when decided, might; properly guido the Judge's BENCH,
conclusions upon the further point as to whether the time allowed by the
first Court was reasonable.

We in no way wish to depart from what was thrown out in the case (*"**)
of Sheo Pershad Lai v. Thakoor Rai (1) and followed by Pearson and
Spankie, JJ., in Parshadi Lai v. Ram Dial (2) that an appellate Court in
its discretion may vary the decree of a first Court in the matter of time
for payment, even though such time expired before tbe appeal was filed.

The effect of this view upon the present appeal is thit it will be
decreed and the appeal be remanded to the Court of the Judge of Gorakh-
pur for restoration to his file of pending appeals and disposal in ordinary
course as an appeal upon the pleas, including that of time, taken by the
plaintiff-appellant. Costs hitherto incurred will follow the result.

MAHMOOD, J. This case has arisen out of a reference made by me,
and the circumstances which gave rise to the reference are stated in my
order of reference, dated the 28tb May, 1889, and I do not wish to repeat
the circumstances of the case further than saying that my judgment in
this case depends on, and refers to, that order and the facts stated therein
for the consideration of the question of law which arises here. This being
so. it is, I think important for me specially, as the referring Judge in the
case, to explain that my ruling in Ghhidda v. Imdad Hussain (3), is not
inconsistent with the view expressed in the judgment which has just been
delivered. That was nob a case of a regular pre-emption decree, which
was the subject of appeal, but the appeal related, to the execution of such a
[191] decree which fixed one month as the time for payment of price.
That decree had become final by being affirmed by the appellate Court
on tbe loth January 1885, without any alteration as to the term of one
month, but the deposit of the purchase-money was not made till the 16th
February 1885, that is, after the fixed period of one month, rven as
calculated from the appellate decree of the 15th January 1885. The

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 19 of 155)