Khambatta.-The principal question for determination is whether the trial resulting in the conviction of the appellants has been vitiated by the refusal by the Court of first instance to grant the appellants facilities for the production and examination of two witnesses. Lord Thankerton.-You will have to satisfy us that there was a refusal. Khambatta.-If I do not satisfy your Lordships as to that point then that is an and to the case as no question arises as to the merits of the case. As regards the witness Bhagwandas his name was on the list filed under section 211(1). We were entitled as of right to his presence at the Session., Court; this follows from the provisions of section 216. Lord Thankerton.-Surely your point comes under section 90. Khambatta.-As regards the other witness Sardar Bahadur we were not entitled to his presence as of right, as his name was not on the list of witnesses filed under section 211(1). In his case we were given a dasti summons, such a summons was not legal under the provisions of section 68 of the Code of Criminal Procedure. It is true that we could have summoned this witness under the provisions of section 540 but we did not do so. Counsel for the respondent was not called upon. Their Lordships’ Judgment was delivered by Viscount Simon.-This is an appeal, by way of special leave to appeal from the judgment of the Chief Court of Oudh, at Lucknow, confirming the conviction of murder and the sentence of death passed upon the three appellants Special leave was given in order that, in the light of fuller information, the Board might hear the argument, which has been very clearly and candidly advanced by Mr. Khambatta this morning, to the effect that there was some irregularity in the proceedings which would constitute a grave miscarriage of justice unless the appeal were allowed. There are two proposed witnesses for the defence named in the case. As regards Bhagwan Dass, he was properly included in the list of witnesses whom the defence wished to summon and, after the date of the trial had been fixed by the Sessions Court for 1st August to 3rd August, the last of those days being allotted in advance for the defence, Bhagwan Dass was properly served by a summons issued by the committing magistrate to appear on the 3rd August. However, the summons did not reach this gentleman’s hands, at his residence some fifty miles off, until the afternoon of the 2nd August, owing to his having been away when the effort was first made to serve him. He at once communicated by telegraph to the Sessions Court, informing the Court that he had only just been served and that the time was too short, especially as there was no vehicle available, to enable him to appear, as the summons called upon him to do, at 10 a.m. on the 3rd August. The next morning that fact was mentioned by the Court when the case was being dealt with, and we must proceed on the basis, which everybody accepts, that the time was too short for Bhagwan Dass to appear at the time and date mentioned in the summons. As it happened, the trial of the case was postponed until the 7th August — it may very well be not on this account, but because of some arrangement already made. That being so, the practical thing to do was to let Mr. Bhagwan Dass know that it was on the 7th August, that he would be needed. The Court asked the defence to let him know this. The defence did not do so; they preferred to drop the witness. In these circumstances, as it appears to their Lordships, there is nothing whatever to complain about in the case of the witness Bhagwan Dass. At one time it almost appeared that the point arose under section 216 of the Code of Criminal Procedure, which directs what the committing Magistrate has to do in relation to summoning witnesses; but, as has been pointed out during the argument, the committing Magistrate had exhausted all his powers and duties under that section, and it is not suggested that the committing magistrate was in any way in fault; he was completely functus officio, so far as this was concerned. If anybody was in fault, it would be the Sessions Court; but there was not really any fault there. The Court did not proceed high-handedly. It was glad, no doubt, that there would be plenty of time for this gentleman to appear, and it gave the defence the opportunity of telling him so. It does not seem that there is any other ground for complaint as regards that witness. The Court did not proceed high-handedly. It was glad, no doubt, that there would be plenty of time for this gentleman to appear, and it gave the defence the opportunity of telling him so. It does not seem that there is any other ground for complaint as regards that witness. As regards the other gentleman, Sardar Bahadur, he was not on the defence’s list at all. There was no right in the defence to have him brought before the Court. That appears to their Lordships to follow from section 291 of the Code of Criminal Procedure. The defence could have applied, if it had thought right to do so, under section 540 of the Code of Criminal Procedure, to the Sessions Judge; but they did not do so. In these circumstances, it appears to their Lordships that there is no good ground for thinking that there has been a miscarriage of justice in this matter at all. There does not appear even to have been any irregularity. The consequence is that their Lordships will humbly advise His Majesty that this appeal should be dismissed. Solicitors for Appellants: Hy. S.L. Polak & Co. Solicitor for Respondent: The Solicitor, India Office. H.J.U./V.S. ----- Appeal dismissed.