1. This is an appeal from the judgment of the Mewas Agent, West Khandesh, by whom the appellants have been convicted under Sections 326 and 114 of the Indian Penal Code, and have been sentenced to various terms of imprisonment, each term being less than five years.
2. The appeal gives rise to a preliminary question of some difficulty, that is to say, the question whether this Court has jurisdiction to entertain an appeal from a convicted prisoner who has been sentenced by the Court of the Mewas Agent to a term not exceeding, five years' imprisonment. The question was answered in 1890 by a Division Bench of this Court in Queen-Empress v. Sarya 15 B. 505 : 8 Ind Dec. 342. where it was held that such an appeal did not lie to the High Court. This decision was noticed and commented on in Imperatrix v. Ratnya 25 B. 667. where, however, no doubt appears to have been thrown on the authority of the earlier case. The authority of that case is, however, exposed to some doubt and uncertainty owing to the recent decision of this Court in Emperor v. Khalpa Ranchod 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cri. L. J. 533. For the decision in Sarya's case 15 B. 505 : 8 Ind, Dec. 342. proceeded mainly upon the view that Rule 44 of the Rules published under Section 3 of Act XI of 1846 was ultra vires, and consequently was of no avail to furnish this Court with jurisdiction to entertain an appeal in a case such as the present. But in Khalpa Ranchod's case 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cri. L, J. 533. the validity of Rule 44 came under the consideration of the Court, and the Chief Justice and Mr. Justice Heaton, after referring to Section 4 of Act XI of 1846, observed that Rule 44 appeared to them to permit this Court to entertain the appeal of the accused and, if necessary, to resort to the provisions of Section 428 of the Criminal Procedure Code, for the purpose of obtaining any additional evidence that might be necessary. It is true that in this case the Court's attention does not appear to have been directed to the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind. Dec. 342. and that there was also a reference to this Court from the Mewas Agent, the accused having been sentenced to death. At the same time it is, I think, apparent that there is real conflict between the decision in Khalpa Ranchod's case 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cri. L, J. 533. and the grounds upon which the decision was rested in Sarya's case 15 B. 505 : 8 Ind. Dec. 342. That conflict is the more noticeable, because the circumstance that Khalpa Ranchod was sentenced to death, and was not sentenced to a term of five years' imprisonment or less, formed no part of the ratio of the Court's judgment. Moreover, after such argument as we have heard to day, it appears to me that some grounds do exist for re-considering the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind. Dec. 342. For even if, as the learned Judges in that case thought, Rule 44 was beyond the powers conferred by Section 3 of Act XI of 1846---a point which is not wholly free from difficulty---yet it may still be necessary to consider what effect, if any, Act XIV of 1874 may have in the direction of saving this Rule 44 and preserving it as a valid rule.
3. On the whole, therefore, there being this divergence between the decisions, some inherent difficulty in the question itself and some reason to suppose that apart from the latter case the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind, Dec. 342. may be incorrect, it appears to me desirable that the question should be referred to a Full Bench. The question referred will be that which I have stated at the beginning of this judgment.
4. I agree. I only desire to add that I feel some difficulty in accepting the conclusion in Queen-Empress v. Sarya 15 B. 505 : 8 Ind, Dec. 342. that Rule 44 of the Rules made under Act XI of 1846 is ultra tires. The words of Section 3 of the Act are at least equally reasonably susceptible of a construction which would save the rule, and, in my opinion, that construction ought to be preferred. Taking the rules as a whole, particularly rules 43 and 44, it seems to me that the Government have provided that every case shall be liable to the control of the Sadar Fauzdari Adalat referred to in Section 4 of the Act, subject to the condition that in a certain class of cases the Agent himself should submit the papers to that Court and that in other cases he is to submit the papers, if required to do so by that Court, on the petition cf the accused. The extent of the power of the Sadar Fauzdari Adalat in all cases is the same. If the rules in terms provided that all cases must be submitted by the Agent to the Sadar Fauzdari Adalat, it would be difficult to say that the Government had no power under Section 3 of the Act to make such rules. I am unable to see why the result should be otherwise when that is the effect of the present rules, with this difference only that in certain cases the papers must be submitted by the Agent to the Sadar Fauzdari Adalat, whereas in other cases he is to do so if required by that Court on the petition of the accused.
5. Mr. Y. V. Bhandarkar, for the Appellants.
6. Mr. S. S. Patkar (Government Pleader), for the Crown.
7. The Full Bench (Scott, C. J., Beaman, Heaton aid Macleod, JJ.) delivered the following.
8. By Section 2 of Act XI of of 1846 it was enacted that the administration of criminal justice within the territory referred to by the Act should vest in the Agent to the Governor of Bombay, and by Section 3 it was enacted that it should be competent to the Governor-in Council to prescribe such rales as he might deem proper for the guidance of the Agent, and to define the authority to be exercised by the Agent in criminal trials and what cafes he should submit to the decision of the Sudder Fauzdari Adalat. By Section 4 it was enacted that upon the receipt of any criminal trials referred by the Agent under the rules, which might thereafter be prescribed by the Governor in-Council, the Sudder Fauzdari Adalat should proceed to pass a final judgment, or such other order as might after mature consideration seem to the Court requisite and proper, in the same manner as if the trial had been sent up in ordinary course from a Sessions Judge. Under Section 3 of the Act the Governor of Bombay on the 17th of March 1854 prescribed certain rules for the civil and criminal administration in the villages of six Mewasi Chiefs mentioned in the Schedule to the Act of 1846. Chapter III of those rules relates to the criminal administration. Rule 35 provides that the absolute jurisdiction of the Agent in criminal cases shall extend to fine and imprisonment for five years, and sentences involving a punishment beyond that period, or of a greater severity, must be submitted for the confirmation of the Sudder Fauzdari Adalat. Rule 37 provides that the Agent will obey all injunctions and orders of the Sudder Fauzdari Adalat, and Rule 43 that if the punishment deemed to be suitable by the Agent shall exceed his own absolute jurisdiction, he shall record the punishment he would award, but shall forward the case in original to the Sudder Fauzdari Adalat, which Court shall proceed to take cognizance of the case and to pass such sentence or oiders as they may think proper, and the instructions conveyed to the Agent from the Superior Court would be carried into effect by him. Rule 44 provides that the Sudder Fauzdari Adalat shall be empowered to call for the Agent's proceeding in any case, on petition being made to that Court by any party against whom a sentence may have been passed by the Agent, and the Sudder Court may thereafter proceed according to the provisions of Section 4 of Act XI of 1846. Rules 43 and 44 are thus rules which provide for cases in which the Agent shall, under the first Rule of his own motion and under the second Rule upon requisition by the Superior Court, submit the case for decision of that Court. The power to call for and deal with a case given to the Superior Court implies a direction that the Agent shall refer in compliance with the requisition. Section 4 of the Act of 1846 lays down what shall be done by the Sudder Fauzdari Adalat upon the receipt of any criminal trial referred by the Agent under the rules. The Sudder Court may proceed to pass a final judgment or such other order as may seem to the Court requisite and proper. This procedure is imperative in relation to any case received from the Agent. Such cases may under the rules either be referred by the Agent of his own motion or on requisition by the Court empowered under the rules to make such requisitions. The rules framed by the Governor-in-Council must be read as a whole and although Rule 35 states that in a particular class of cases the Agent shall have absolute jurisdiction, that is not inconsistent with, but subject to, the provision in Rule 44 that the Sudder Court on petition by any party convicted by the Agent may call for the proceedings and pass a decision thereon. It is immaterial whether the power of the Superior Court is called appellate or revisional, the result is that that Court, now the High Court, may take cognizance of any case on the petition of a convicted party and, if it thinks fit, send for the proceedings and pass a fresh decision. In our opinion, therefore, Rule 44 is not ultra vires.
9. This case again came up for hearing before Mr. Justice Batchelor and Mr. Justice Shah on the 4th April 1917, when their Lordships delivered the following