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Reg. Vs. Lalubhai Gopaldass and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom232
AppellantReg.
RespondentLalubhai Gopaldass and ors.
Excerpt:
.....article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - inverarity's contention were well founded, that the legislature did intend that a prisoner not being a european british subject should be tried by a jury, of which the majority should be other than europeans or americans or both, we should have expected, after reading section 35, to find another section expressly conferring an equivalent right on persons not being european british subjects. section 35 is a particular provision to meet an exceptional case......intention. where it wished to make a rule about the selection of jurors for the trial of european british subjects, we find it doing so in express terms in section 35. if mr. inverarity's contention were well founded, that the legislature did intend that a prisoner not being a european british subject should be tried by a jury, of which the majority should be other than europeans or americans or both, we should have expected, after reading section 35, to find another section expressly conferring an equivalent right on persons not being european british subjects. there being no such section, it seems to us that the contrary inference to that for which mr. inverarity contends is the one that should be drawn from the express provisions of the act. the concluding passage in section 36 shows.....
Judgment:

Michael Westropp, C.J.

1. We think that, even if the Legislature intended what Mr. Inverarity contends it did, it has not expressed that intention, and this would be a case of quod voluit non dixit. We also think, however, that it had no such intention. Where it wished to make a rule about the selection of jurors for the trial of European British subjects, we find it doing so in express terms in Section 35. If Mr. Inverarity's contention were well founded, that the Legislature did intend that a prisoner not being a European British subject should be tried by a jury, of which the majority should be other than Europeans or Americans or both, we should have expected, after reading Section 35, to find another section expressly conferring an equivalent right on persons not being European British subjects. There being no such section, it seems to us that the contrary inference to that for which Mr. Inverarity contends is the one that should be drawn from the express provisions of the Act. The concluding passage in Section 36 shows that, even after a European British subject has claimed the right given to him by Section 35 to be tried by a jury, of which the majority shall be Europeans or Americans or both, the person who is accused jointly with him, though not a European British subject, may yet be tried together with him, and, therefore, of course, by the same jury. Lastly, Section 37 provides that if the European British subject claims his right under Section 35, and the other desires a separate trial, he may have it. But that is an express provision for that particular case. If the Legislature intended that that provision should have a more general application it has not said so, and by making this particular provision has excluded its application to other cases, according to the rule expressio unius est exclusio alterius. What is the scope of the direction in Section 33, that the nine persons shall be drawn by lot, or, in other words, whether the names of all jurors should be in one box, or may be distributed into several boxes according to the communities to which the jurors belong, is a point on which we are not now required to give any opinion, and we give none; but we think that, if not inconsistent with the Act, the mode of selection from different boxes is the more convenient, as it insures the selection of a mixed jury consisting of persons of different creeds and nationalities. On the question referred to us we must refuse to disturb the conviction and sentence.

Sargent, J.

2. I am of the same opinion. Section 34 shows that the jury chosen under Section 33, however composed, may try any one whatever be his nationality. Section 35 is a particular provision to meet an exceptional case. If the European British subject wishes to insure his being tried by a jury, of which the majority shall be Europeans or Americans or both, he may, under that section, claim the right to be so tried. If he does not claim that right, he will be tried by a jury chosen under Section 33. Section 37 is also a particular provision to meet another special case, but the right thereby conferred on a person not being a European British subject, to be tried by a jury, the majority of which shall not be Europeans or Americans or both, only arises in the event of the European British subject, who is accused jointly with him, choosing to avail himself of the privilege conferred on him by Section 35. I, therefore, think the conviction and sentence must stand.

Green, J.

3. Concurred.


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