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Queen Empress Vs. A. Morton and Mooeteza Ali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom288
AppellantQueen Empress
RespondentA. Morton and Mooeteza Ali
Excerpt:
jurisdiction - practice--procedure--code of criminal procedure (x of 1882) applicable to proceedings in the court of the judicial superintendent of railways in ii. h. the nizam's dominions--of proceedings--subsequent sanction of no effect--irregular commitment accepted by high court--criminal procedure code (x of 1882) secs 197 and 532--power of court of judicial superintendent of railways to commit to high court--charges preferred by advocate general--lettcrs patent, 1865, clause 24--european british subjects. - - 7. the language of section 197 of the criminal procedure code (x of 1882) is so strong in requiring a previous sanction that, in my opinion, if no such sanction has been obtained, there is no jurisdiction; previously to the enactment of the present code, the act applicable to..........in council, extend to all european british subjects in allied states and to all native indian subjects of her majesty in any place beyond british india.5. the matter then stands thus: colonel dobbs is a justice of the peace, and by section 6 of act xi of 1872 and section 6 of act xxi of 1879 he is invested with all the powers of a magistrate of the first class. under the notification of the governor-general in council, to which i have referred, he has, the power of committing to this high court, which by a similar notification is invested with original and appellate criminal jurisdiction over european british subjects in the district in which the court in question is held; and, lastly, the extradition acts of 1872 and 1879 extend to. european british subjects the criminal law.....
Judgment:

Charles Sargent, C.J.

1. The question before us is whether the Judge now presiding at the Criminal Sessions of the High Court can proceed with the trial of the two prisoners who have been committed to this Court by the Magistrate at Secunderabad. One of the prisoners is admittedly a European British subject and a public servant, and it is not denied that the provisions 'of Section 197 of the Criminal Procedure Code (X of 1882) would apply to his case., By that section it is enacted that when a public servant is accused as such public servant of any offence, no Court shall take cognizance of such offence without the previous sanction of the Government. Now, it appears that the magisterial inquiry before Colonel Dobbs was held without such sanction having been previously obtained. That inquiry terminated in the committal of the prisoners for trial on the 27th September. The sanction of the Government, which has been put in evidence, is dated the 12th November, nearly two months subsequently to the termination of the proceedings before the Magistrate; and the question is whether, under the circumstances, the committal of the prisoners to this Court was so irregular as to prevent this Court from proceeding to try the case.

2. The first point which arises for determination is. whether the Code of Criminal Procedure (X of 1882) applies to the Court of the Judicial Superintendent of Railways at Secunderabad, and in order to decide that point it is necessary to consider the source from which that officer derived his authority. It appears that the Court of the Judicial Superintendent of Railways at Secunderabad was established in 1864. By the provisions of Section 6 of Act XI of 1872 the Governor-General in Council is authorized to appoint any-European British subject in any country or place beyond the limits of British India to be a Justice of the Peace; and it provides that every such Justice of the Peace shall have all the powers conferred on Magistrates of the First Class who are Justices of the Peace and European British subjects by any law for the time being in force in British India relating to criminal procedure; and it further provides that the Governor-General in Council may direct to what Court having jurisdiction over European British subjects any such Justice of the Peace is to commit for trial. In the exercise of these powers Colonel Dobbs, by whom the prisoners were committed, was appointed Judicial Superintendent' Railways in His Highness the Nizam's Dominions, and now holds that office.

3. We have next to ascertain the relation in which the Judicial Superintendent of Railways stands to this High Court. By Statute 28 Vic. 15 Section 8, power was given to the Governor-General in Council to alter the local limits of the jurisdiction of the High Courts in India (his Lordship read the section), and in exercise of that power the Governor-General by a Notification, dated 23rd September, 1874, See notes to Section 458 of the Criminal Procedure Code 1882 (Agnew and Henderson's edition) and Gazette of India, 1874, p. 485. No. 178J., ordered that original and appellate criminal jurisdiction over European British subjects of Her Majesty, being Christians resident in the Native States and territories named in the order, should be exercised by the High Court of Bombay, and Hyderabad, in which Colonel Dobb's Court is held, is one of the territories mentioned in the notification. By a further Notification, dated 3rd September, 1874, No. l79 Gazette of India, 1874, p. 486. See Agnew and Henderson's Criminal Procedure Code, 1882, notes to Section 458, the Governor-General in Council directed that all Justices of the Peace within the territories specified in the preceding notification, should commit for trial to the High Courts respectively having jurisdiction under the said notification, such European British subjects being Christians as are required by Act X of 1872 to be committed to a High Court.

4. With regard to the law applicable to that Court it is provided in Section 8 of the Extradition Act XI of 1872, and also in Section 8 of the Extradition Act XXI of 1879, that the law relating to offences and to criminal procedure for the time being in force in British India shall, subject as to procedure to modifications by the Governor-General in Council, extend to all European British subjects in allied States and to all native Indian subjects of Her Majesty in any place beyond British India.

5. The matter then stands thus: Colonel Dobbs is a Justice of the Peace, and by Section 6 of Act XI of 1872 and Section 6 of Act XXI of 1879 he is invested with all the powers of a Magistrate of the first class. Under the notification of the Governor-General in Council, to which I have referred, he has, the power of committing to this High Court, which by a similar notification is invested with original and appellate criminal jurisdiction over European British subjects in the district in which the Court in question is held; and, lastly, the Extradition Acts of 1872 and 1879 extend to. European British subjects the criminal law of procedure in force in British India. I am of opinion that the effect of these various Acts and notifications is to render the Court of the Judicial Superintendent of Railways in His Highness the Nizam's dominions subordinate to the High Court in all criminal matters relating to European British subjects, and that this High Court must deal with such oases as if they were cases arising in British India.

6. We may then consider the question as to the effect of the absence of a previous sanction for the proceedings against the prisoners: as if those proceedings, had taken place before a Magistrate. in British India.

7. The language of Section 197 of the Criminal Procedure Code (X of 1882) is so strong in requiring a previous sanction that, in my opinion, if no such sanction has been obtained, there is no jurisdiction; and I think Colonel Dobbs had no jurisdiction to commit this case. Section 532 of the Criminal Procedure Cole, however, authorizes the High Court to accept an irregular commitment and to proceed with the trial if it considers the accused has not been injured thereby, unless before the commitment objection was made to the jurisdiction of the Magistrate which was not the case here. I am of opinion that the commitment in this case was an irregular commitment, but that the Judge presiding in the Court of Criminal Sessions to which the prisoners have been committed has power in his discretion under the provisions of Section 532 of the Code to accept the commitment and to proceed with the trial.

Bayley, J.

8. In deciding the question now before us we have first to ascertain the constitution and authority of the court by which the prisoners have been committed for trial, and the relation of that court to the High Court of Bombay, The court presided over by the Judicial Superintendent of Railways within His Highness the Nizam's dominions appears to have been established in 1864, and in that year a series of rules for its guidance was drawn up and sanctioned by the Government of India. The first of these rules declares that the jurisdiction of the Judicial Superintendent of Railways extends over all persons, European and Native British subjects or otherwise, employed upon the railways within His Highness the Nizam's dominions, and over all servants and others in their employ; and that he is to take cognizance of all offences committed by or charges against such, persons regarding matters cognizable by a Magistrate. The second rule declares that he holds a commission as Justice of the Peace from the Supreme Court of Bombay and is vested with the full powers of a Magistrate by the Governor-General.

9. By the Statute 37 Geo. III. c. 142 Section 10, European British subjects committing offences in Native States were made liable to the jurisdiction of the Supreme Courts.

10. The third section of Statute 28&29 V c 15 empowered the Governor-General in Council by order from time to time to authorize and empower any High Court in India to exercise all or any portion of its jurisdiction and powers within any such portion of Her Majesty's dominions in India, not included within the limits of the Presidency for which such High Court was established as the Governor-General in Council may from time to time determine, and to exercise any such jurisdiction in respect of Christian subjects of Her Majesty resident within the dominions of such of the princes and States of India in alliance with Her Majesty, as the said Governor-General in Council may, in manner aforesaid, from time to time determine. In pursuance of the powers vested in him by that statute, a notification was issued by the Governor-General in Council, dated the 23rd September 1874, See Agnew and Henderson's Criminal Procedure Code, p. 331 notes to Section 48, and see Gazette of India, 1874, p 485. giving the High Court of Bombay original and appellate criminal jurisdiction over European British subjects of Her Majesty being Christiana resident in the Native States, territories, and chiefships mentioned in a list appended to the notification, and in that list we find the Hyderabad Assigned Districts and also Hyderabad excepting the assigned districts. By a subsequent notification in exercise of the powers vested in him by Section 6 of the Extradition Act XI of 1872, the Governor-General in Council directed that all Justices of the Peace within the States, territories, and chiefships specified in the preceding notification shall commit for trial to the High Courts respectively, having jurisdiction under the said notification, such European British subjects as are required by Act X of 1872 (the Criminal Procedure Cede then in force in British India) to be committed to a High Court. It is clear, therefore, that the Judicial Superintendent of Railways has power to commit prisoners for trial to the High Court of Bombay and that this Court has jurisdiction to try them.

11. But a further question his to be considered, viz., what is the law to be administered by the Judicial Superintendent of Rail-ways and by which he is to be guided in his procedure? The point in the present case is whether the proceedings before the Magistrate are not invalid by reason of the non-observance of the provisions of Section 197 of the Criminal Procedure Code (X of 1882) now in force in British India; and we have, therefore, to determine whether or not this Code is applicable to a court situated in the territories of His Highness the Nizam.

12. Section 8 of the Extradition Act XI of 1872 declares that the law relating to offences and to Criminal Procedure for the time being in force in British India shall, subject as to procedure to such notification as the Governor-General in Council from time to time directs,' extend to , all British subjects, European and Native, in Native States That Act has been repealed by the Extradition Act XXI of 1879, but Section 8 of this Pater Act is to the same effect. The principle of these enactments is not new. Mr. Justice Story says Story's Conflict of Laws, para. 21: 'Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native-born subjects everywhere, and, consequently, that its laws extend to and bind subjects at all time and in all places This is commonly adduced as a consequence of what is called natural allegiance, that is of allegiance to the Government of the territory of a man's birth.' We must, therefore, hold, having regard to the authorities I have referred to, that, for all purposes whether as to the offence charged or the procedure to be followed, the law applicable in the case of the prisoner Morton is the law which would be applicable, if he was a resident within the Presidency of Bombay.

13. The Codes of Criminal Procedure have been framed so as to give European British subjects the benefit of the law both as to offences and procedure which is administered by the High Courts of British India. Section 79 of the Code of 1872 gave them a right of appeal to the High Court from a conviction by a competent Magistrate; and Section 81 of the same Code gave them a right to apply to the High Court, if detained in custody by any person (his Lordship read the section). In the present Code (X of 1882), Sections 408 and 416 and 456 preserve to European British subjects the same rights which they had under the Code of 1872, and lastly, Section 463 provides in general terms that criminal proceedings against European British subjects before a Court of Sessions and High Court shall, except as otherwise expressly provided, be conducted according to the provisions of the Code. It is clear, I think, that it was the intention of the legislature that European British subjects although resident within the territories of Native States should be subject to the same law in every respect as European British subjects residing in the mofussil of any of the Presidencies of India.

14. That being so, then, we come to the question now raised on behalf of the prisoner Morton, viz., whether the proceedings' against him before the Judicial Superintendent of Railways are valid under Section 197 of the Code, and whether this Court can proceeded to try him. Previously to the enactment of the present Code, the Act applicable to this Court was the High Court's Criminal Procedure Act X of 1875, and the section which required a sanction in cases like the present was Section 132. That section expressly provided that 'the sanction must be given before the commencement of the proceedings.' Section 197 of the present Code requires 'the previous sanction of the Government.' I am unable, to see any distinction in the language used in the two sections, and I can discover in the later Code of 1882 no indication, that the Legislature intended to relax the strictness of the rule clearly laid down in the Act of 1875. In this case 'the previous sanction of the Government' for the proceedings against Morton was not obtained. He was committed on the 27th September at the termination of the proceedings before Colonel Dobbs, which lasted a considerable time. The sanction was not obtained until the 12th November, and I am of opinion that under these circumstances all the proceedings against him were illegal and without jurisdiction. The case of Gahan v. Lafitte 3 MP.C. Ca. 382 cited in Beg. v. Rama bin Gopal 1 Bom. H.C. R 107 is strong authority to show that a sanction subsequently obtained cannot ratify illegal proceedings.

15. The prosecution, however, rely on Section 532 of the Code, That section corresponds with Section 25 of Act X of 1875, the language of which is almost the same. Probably the commencement of Section 532 refers to the Magistrates mentioned in sec-tions 36 and 37, but I think the section is not limited in its operation only to such Magistrates. It is in my opinion applicable to this case, and under its provisions the Judge presiding at the Criminal Sessions of the High Court may accept the commit-ment of the prisoner if it considers that he has not been injured.

16. In order to elude the difficulty arising from the absence of a previous sanction- of Government for the proceedings before the Magistrate, counsel for the prosecution has framed a number of charges against the prisoner Morton in all respects similar to the charges drawn by the Clerk of the Grown, for which the sanction of the Advocate-General has been obtained; and it is contended that the prisoner might be tried upon these charges under Clause 24 L P 1865. That clause is as follows: (his Lordship read the clause). Now under that clause charges can only be preferred by the Advocate-General against persons residing 'within the jurisdiction of a Court now subject to the superintendence of the High Court.' I do not think that the Court of the Judicial Superintendent of Railways at Secunderabad is subject to the superintendence of this Court. The rules that have been referred to as published by the Government of India for the guidance of the Judicial Superintendent show that the Resident at Hyderabad is the authority which exercises superintending power over that Court, and it is clear, I think, that it is only with regard to European British subjects which may be brought before the Judicial Superintendent that this Court has any power at all except where, as in this case, native prisoners may be committed for trial under Section 2.14 of the Code. I am of opinion, therefore, that the prisoner could not be tried upon the charges preferred by the Advocate-General.

Scott, J.

17. I concur.

Charles Sargent, C.J.

18. The result is that the trial of the prisoner Morton may proceed, if the presiding Judge considers that the accused has not been injured by the irregularity that has occurred. If he decides to proceed with the trial of prisoner No. 1, then the 2nd prisoner Moorteza Ali may also be tried, but if the commitment of Morton be quashed, the commitment of Moorteza Ali must be quashed also.


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