Charles Sargent, C.J.
1. This is an application by two persons, alleging themselves to be European British subjects, residing at Chadarghat, within the dominions of the Nizam, and asking that the criminal proceedings, which have been commenced against them for libel in the Cantonment Magistrate's Court at Secunderabad, should be removed to this Court under Section 526 of the Criminal Procedure Code (Act X of 1882) as emended by Act III of 1884. To decide this question, it becomes necessary to ascertain with precision the jurisdiction of the Courts established by the Governor-General in Council in the Niazm's dominions, as well as the jurisdiction exercised by this High Court over those Courts.
2. First, I will refer to the Foreign Jurisdiction and Extradition Act, XI of 1872, The object of that Act, as shown by the preamble, was to remove doubts which ,had arisen as to how far the exercise of power and jurisdiction by the Governor-General beyond the limits of British India, and the application thereof, was controlled by, and dependent on, the laws of British India. The Governor-General', by Section 4, is enabled to exercise any power or jurisdiction which he may have in any country or place beyond British India, and to delegate the same to any servant of the British Government in such manner, or to such extent, as the Governor-General in Council from time to time thinks fit; and by Section 8 of the Act it is provided that- the law relating to offences and criminal procedure for the time being in British India as to procedure, &c;, extends to all British subjects, European or Native, in Native States.
3. In 1874, by notification of the Governor-General in Council See Gazette of India, 1874, pp. 484 and 485; and see Prinsep's Criminal Procedure Code (6th ed.), p. 428 made in exercise of powers given him by Stat. 28 and 29 Vic, cap. 15, it was directed that original and appellate jurisdiction over European British subjects resident in the States therein enumerated should be exercised by the High Courts, and jurisdiction was particularly given to this High Court in respect of European British subjects resident in Hyderabad, where the petitioners reside. The Foreign Jurisdiction Act of 1872 was repealed by Act XXI of 1879, but its provisions relating to European British subjects resident in Native States remained unaltered; and by Section 8 of the Act of 1879 there is the same provision, that the law for the time being in British India, relating to offences and to criminal procedure, should extend to European British subjects in the dominions of Princes and States in India in alliance with Her Majesty: so that after that Act was passed, as before, the law relating to offences and criminal procedure, as applied to European British subjects in Native States to be administered by Courts exercising the powers conferred on them by the Governor-General was to be the law/or the time being in British India.
4. By the passing of Act III of 1884, certain amendments, in respect of European British subjects, were introduced into the Code of Criminal Procedure Act X of 1882; and, apparently, with the view of giving the Cantonment Magistrate the greater powers which were by the above Act conferred on District Magistrates with reference to European British subjects, the Cantonment Magistrate has recently been invested with the powers of a District Magistrate over European British subjects, having up to that time been, as we understand, a Justice of the Peace and a Magistrate with first class powers.
5. The first question, therefore, for determination is whether the power of transferring a case to itself is included in the original and appellate jurisdiction which is vested in this Court by the notification of 1874. It was said that that power is a special one, not belonging to either jurisdiction, which is confined by Clause 23 of the Letters Patent, 1865, in the case of original jurisdiction, to the trial of persons brought before it in the due course of law, and in the case of the appellate jurisdiction by Clause 27 to trying appeals from Courts in such cases as are subject to appeal by virtue of any law in force; and that the power of transfer given by Clause 29 is not associated with either jurisdiction. It is to be remarked, however, that, by Section 15 of the Act for establishing High Courts of Judicature (Stat, 24 and 25 Vic, cap. 104), the power of transfer from one Court to any other of equal or superior jurisdiction was intended to be given over ail Courts subject to the appellate jurisdiction of the High Courts, as being apparently an incident of its superintendence over such Courts. But in any case we think that, having regard to Section 8 of the Foreign Jurisdiction Act XI of 1872, which was the Act in force at the date of the notification in question, we should best give effect to the intention of the Governor-General in Council, by holding that the appellate jurisdiction of the High Court, as contemplated by that notification, included all powers which the High Court possessed in 1874 over Courts in India from which it was a Court of appeal, which undoubtedly included the power of transfer over such Courts as being subordinate to it given by Section 64 of the Criminal Procedure Code of 1872-a power which is still in force in a more detailed and elaborate form in Section 526 of the present Code-Now, this Court is a Court of appeal from the Cantonment Magistrate as a Justice of the Peace, with the powers of a First Class Magistrate or as a District Magistrate in the case of European British subjects, as shown by Section 408 of the Criminal Procedure Code, Clause (6), which gives to a European British subject the option of appeal to the High Court from a conviction by a Magistrate of the First Class or a District Magistrate. I am, therefore, of opinion, that this Court has the power, in the case of a European British subject, of transferring to this Court a case from the' Cantonment Magistrate, acting either as a Justice of the Peace and as a First Class Magistrate, or as a District Magistrate, with the increased powers given, to him by Act III of 1884; and no one can doubt, I think, that it is of the highest importance that it should possess such a power.
6. I am entirely of the same opinion, and concur fully with the Chief Justice.
7. I fully concur in the opinion of the Chief Justice. But this is a matter of considerable importance and it is useful to accumulate additional arguments in favour of our decision. I, therefore, add a few supplementary remarks to the learned judgment just pronounced. The power of transferring suits from an inferior Court before judgment, in case of the exercise of either an excess, of jurisdiction, or an error of jurisdiction, or any other just ground, was given to the late Supreme Court by its Charter (section 10), which invested that Court with the jurisdiction and authority of the Court of King's Bench. This power has been considered so essential to the proper administration of justice, that it has been given to all Colonial Courts; and it has been held that even a privitive clause in a Statute does not absolutely deprive the superior Court of it in case of a manifest defect of jurisdiction in the lower tribunal-Colonial Bank of Australia v. Willan L.R. 6 P.C. 442. It was expressly retained by Section 15 of the High Court Charter Act 24 & 25 Vic, cap. 104 and by that section a general power of superintendence, including transfer, was given in explicit terms to the High Court 'over all Courts subject to its appellate jurisdiction.' The question remains, whether it is applicable in the present case. By 28 Vic, cap. 15 Section ,3, it is left to the Governor-General in Council to determine the jurisdiction to be exercised over Christian British subjects in Native States, such as Hyderabad. His Excellency could, of course, have created any special limited jurisdiction he thought proper. But by notification in 1874 See Gazette of India, 1874, pp. 484 and 485; and see Prinsep's Criminal Procedure Code (6th ed.), p. 428 the Governor-General in Council conferred on the High Court of Bombay, original and appellate jurisdiction over Christian British subjects in Hyderabad.
8. A doubt was raised in the course pi argument, whether the words 'appellate jurisdiction' here used, included the superintending power of transfer. It seems to me, in consideration of the beneficent nature of that poster and the leaning of the authorities in its favour, that such a doubt ought not to be determined in the restrictive sense if the wider construction can reasonably be applied. If the Legislature (or rather the Governor-General in Council) intended to restrict the jurisdiction of the High Court given to it as an Appellate Court by Section 15 of its Charter, I think formal and explicit expression would have been given to that intention. The Legislature cannot have intended that a special and limited jurisdiction should be inferred from words that have already received an authoritative interpretation in a wider sense. I may add, that the decision of a recent Full Bench supports this view-Shiva Nathaji v. Joma Kashinath I.L.R. 7 Bom. 362. In the course of their judgment the Court said' The power of control is almost essential to the conception of a Supreme Court, and cannot be divested except by express statutory provisions.' It may also be noticed as a further argument that if the High Court were not to exercise this power, which appears to be almost indispensable to the proper administration of justice, no other authority exists by which it would be exercised. Suppose, for instance, this Court decides that Act III of 1884 is applicable to British subjects in Hyderabad, and the inferior Court there refuses to admit the applicability. In that case, if the High Court had no power of transfer a British subject would have to submit to trial there before, a Court with-out jurisdiction, the decision would have to be reversed on appeal, and sent back for re-trial, before he could obtain his statutory right to a jury trial.
9. I may add one further argument. The preamble of an Act has been called a key to its understanding, and may properly be consulted in order to fix the scope or limit of a Statute. Now the preamble to the Foreign Jurisdiction Act of 1.879, after reciting that the Governor-General has by treaty obtained power and jurisdiction beyond the limits of British India, goes on to state the object of the Act to be the settlement of doubts as to how far such power and jurisdiction are controlled by, and depend on, the laws of British India. Reading section. 8 by the light of this preamble, it is, clear that all questions of jurisdiction concerning British subjects in Native States must be settled by reference to the Indian Code of Procedure. This section removes all remaining doubt, if any remains, on the question we have to decide; and I am of opinion that, although the notification of 1875 is silent as to the meaning it intended to give to the words 'appellate jurisdiction,' the construction given them by the High Court Charter must be applied.
10. I have nothing more to add to the judgment of the learned Chief Justice, with which, I have already said, I fully agree.
11. July 1, 1885. Macpherson:The jurisdiction question having been decided in my favour, I now move for the transfer of the case to this Court, or for an order directing the Cantonment Magistrate to commit the case to this Court for trial. I say a fair and impartial trial cannot be had in that Court; and, secondly, that it is expedient for the ends of justice that the case should be tried here. Captain Thornton is a District Magistrate, and cannot divest himself of that capacity, and say he is merely a Magistrate of the first class. The case must, therefore, be tried by a jury, and there is no machinery for getting a jury at Secunderabad. ' It may be doubted whether European British subjects, supposing they are available at Secunderabad, are bound to obey the command to serve on the jury, they being beyond the limits of British India. Captain Thornton never having tried a jury case before, it is not desirable that this case should be tried by him. The case having excited considerable interest in Secunderabad, it is not probable that unprejudiced jurors could be had there.
12. Inverarity.-It no machinery exists at present to get a jury it could be created within a week. There is a large European population at Secunderabad from which the First Assistant Resident who is a Sessions Judge, with the assistance of some officer appointed by the Resident could take steps to prepare a jury list and empannel a proper jury. The case may have excited considerable local feeling; but there is nothing to show that that feeling is against the accused, which alone can be a ground ,for a transfer.
Charles Sargent, C.J.
13. We think that the application of the petition-era to Lave the trial removed from the Court of the Cantonment Magistrate to this Court should be granted, although we see no reason to think that, if the case were tried at Secunderabad, there would not be a fair and impartial trial. If a trial by jury were to take place there, the jurors would not be military men, who are exempt from service on the jury by the law; there is a considerable body of Europeans in civil life from which the jury would be drawn, and there is no reason to suppose that such a jury would in any way be prepossessed in favour of Major Neville. On the contrary they would probably belong socially to the same class as the petitioners. If, therefore, the machinery existed at Secunderabad for a trial by jury, there would be no reason for removing the case.
14. If would appear, however, that no such machinery does' exist. The petitioners telegraphed to Secunderabad for information on the point, and have received a reply that there was none. The other side have produced no evidence to the contrary, or adduced any reasons for supposing that a jury can be empannelled at Secunderabad. Before Act III of 1884, there was no need for trial by jury at Secunderabad, and we have no reason to doubt that there is as yet no list from which a jury could be empannelled. We are, accordingly, of opinion that the case should be removed, as a matter of necessity, to the High Court at Bombay.
15. We direct that an order under Section 526 of the Code of Criminal Procedure as amended by Section 11 of Act III of 1884 should go down, directing the Cantonment Magistrate to commit the case to this Court on the 9th of this month, when the parties will appear before him, and to transmit here all the papers belonging to the case.