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Empress of India Vs. Sarmukh Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All237
AppellantEmpress of India
RespondentSarmukh Singh
Excerpt:
act xi of 1872 (the foreign jurisdiction and extradition act), sections 3, 9 - liability of native indian british subject for offence committed in cyprus--'native state'--act v of 1869 (indian articles of war), articles 170, 171--reference--confirmation of sentence of death--act x of 1872. (criminal procedure code), sections 288, 297--division court--full court. - - ' other acts of the indian legislature and of the british parliament were referred to, but at best they appear to me to serve merely as illustrative of what had been done in regard to the commission of and trial for offences under different, although analogous, circumstances, while they did not appear to me to give any support to the argument for the crown. in support of that ruling the two forms of the definition as given.....robert stuart, c.j.1. this is a reference for confirmation of a capital sentence passed on the accused sarmukh singh by the sessions judge of agra under these circumstances: on the recent occupation by the british of the island of cyprus, situated in the mediterranean, and within the empire of european turkey, one of the regiments forming part of the military forces on the occasion was an indian regiment, the 13th native infantry, and in the regiment was a man named sarmukh singh. on the night or early in the morning of the 21st of august 1878, while the regiment was still at cyprus, another sepoy named dewa singh came to his death by a shot from a rifle fired, it was believed, by sarmukh singh. he was at once placed in custody by the military authorities, and on the return of the.....
Judgment:

Robert Stuart, C.J.

1. This is a reference for confirmation of a capital sentence passed on the accused Sarmukh Singh by the Sessions Judge of Agra under these circumstances: On the recent occupation by the British of the Island of Cyprus, situated in the Mediterranean, and within the Empire of European Turkey, one of the regiments forming part of the military forces on the occasion was an Indian regiment, the 13th Native Infantry, and in the regiment was a man named Sarmukh Singh. On the night or early in the morning of the 21st of August 1878, while the regiment was still at Cyprus, another sepoy named Dewa Singh came to his death by a shot from a rifle fired, it was believed, by Sarmukh Singh. He was at once placed in custody by the military authorities, and on the return of the regiment shortly after to Agra, in the North-Western Provinces of India, he was handed over to the Civil Court of that district for trial, and the case came before the Cantonment Magistrate of Agra for the purpose of commitment. But the Cantonment Magistrate believing that he had no jurisdiction to entertain the case ordered the prisoner to he at once sent back to the Commanding Officer of the regiment, with an intimation to that effect; whereupon an application for revision under Section 297 of the Criminal Procedure Code was made by the Government to this Court complaining of the Magistrate's proceeding, and praying that he be ordered to inquire into the charge against the accused, with a view to his commitment for trial to the Court of Session at Agra. On that application coming before a Bench of the Court, Pearson and Turner, JJ., the accused was not represented, while the Government Pleader appeared for the Crown. The case was therefore heard ex parte, and in the result the application for revision was granted, the Bench being of opinion, from their reading of Act XI of 1872, that, notwithstanding that the facts had occurred at Cyprus, the civil authorities of Agra had jurisdiction to entertain the case, and the Cantonment Magistrate was ordered to inquire into the charge. The inquiry was accordingly made, and the accused committed for trial on the charge of murder before the Sessions Judge of Agra, who, after hearing evidence, convicted the accused, Sarmukh Singh, and sentenced him to death.

2. On the case coming up to this Court again for confirmation of sentence, and feeling serious doubts of the soundness of the decision in favour of the jurisdiction at Agra, I directed the case to be brought before the Full Bench by the following order: 'In the ordinary course this case should go before a Bench of the Court for confirmation of the capital sentence, but the peculiarity of the procedure that has taken place is such that I consider it ought to be heard by myself and the Judges of the Court in Pull Bench. The reference to us for confirmation of the sentence assumes that the Magistrate and Judge of Agra had jurisdiction to entertain the case, and it has been so decided by a Division Bench of this Court. But the proceeding was entirely ex parte, and the question may be reconsidered. I therefore direct that this case be brought before a Full Bench of the Court.'

3. The case came before a Full Bench accordingly, when Pandit Ajudhia Nath, a pleader of this Court, appeared for the accused against the confirmation of the sentence, on two grounds, the first of which was that, whereas the murder is said to have been committed by the appellant in Cyprus, the Sessions Judge of Agra had no jurisdiction to try the appellant on that charge; the second ground was on the merits, and for the purpose of this judgment need not be further referred to. On the reference for confirmation of the sentence coming on for consideration, the Junior Government Pleader took the preliminary objection that the judgment of the Division Bench could not be called in question in such a proceeding, but that contention we had no difficulty in disallowing. My colleagues, Mr. Justice Spankie and Mr. Justice Oldfield, have given cogent reasons against such an objection, and in all they say on this subject I concur. But I may add it appears to me that such an objection is sufficiently disposed of by Section 297 of the Criminal Procedure Code. By Section 288 it is provided that, 'in any case so referred, whether tried with assessors or by jury, the High Court may either confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction, and order a new trial on the same or an amended charge, or may acquit the accused person;' and any sentence warranted by law includes of course any judgment, sentence, or order authorised by Section 297. The argument was then addressed to the principal question raised by the reference, viz., whether the Court at Agra had jurisdiction to try the accused for the murder alleged to have been committed by him in Cyprus, and on that question the doubt I originally entertained when I read the judgment of the Division Bench has on reflection been fully confirmed. The question is one purely of law, and depends for its solution on the true intent and meaning of Act XI of 1872 entitled 'An Act to provide for the trial of offences committed in places beyond British India and for the Extradition of Criminals.' Other Acts of the Indian Legislature and of the British Parliament were referred to, but at best they appear to me to serve merely as illustrative of what had been done in regard to the commission of and trial for offences under different, although analogous, circumstances, while they did not appear to me to give any support to the argument for the Crown. These Acts and authorities were Act I of 1849, the Indian Articles of War, being Act V of 1869, and provisions in two Acts of the British Parliament, 26 Geo. III, c. 57, Section 29, and 83 Geo. III, c. 52, Section 67. I shall afterwards refer more particularly to these authorities, but meanwhile I desire to direct attention to Act XI of 1872 upon the true construction of which the question now before us more especially depends, and it contains within itself matter quite sufficient for that purpose. The judgment of the Bench now under our consideration begins by referring to Section 9, and for the meaning of the words 'Native State' there, the interpretation of the expression as given in Section 3 of the Act is referred to, it being assumed that that definition is wide enough to include not only Indian Native States, but all other places in any part of the world without and beyond British India, and that therefore the Island of Cyprus is a 'Native State' within the meaning of the definition. And no doubt if this definition could be read by itself without reference to or connection with any other part of the Act, it is comprehensive enough to include not only Cyprus but any 'place' in the habitable globe. Can that really have been the meaning and intention of the Legislature when it passed this Act? It seems impossible to believe it. The Act itself shows the limits within which the definition in question is to be applied, and we have only to look to the preamble to see what these limits are. It is remarkable that the judgment now under our consideration makes no allusion whatever to the preamble but reads the term 'Native State' simply by itself and without the least regard to such a guide and light in the interpretation of Acts of the Legislature as the preamble. The preamble is as follows: 'Whereas by treaty, capitulation, agreement, grant, usage, sufferance and other lawful means the Governor-General of India in Council has power and jurisdiction within diverse places beyond the limits of British India; and whereas such power and jurisdiction have from time to time been delegated to Political Agents and others acting under the authority of the Governor-General in Council; and whereas doubts have arisen how far the exercise of such power and jurisdiction and the delegation thereof are controlled by and dependent on the laws of British India; and whereas it is expedient to remove such doubts, and to consolidate and amend the law relating to the exercise and delegation of such power and jurisdiction, and to offences committed by British subjects beyond the limits of British India, and to the extradition of criminals; It is enacted, etc.' The purpose, intent, and limits of everything in the Act are thus plainly seen, and 'Native State' means and means only a place so denned, that is, a place where by treaty, etc., the Governor-General of India in Council has jurisdiction, and Cyprus certainly is not such a place. The Government of India have no power and jurisdiction there, no more than that Government has power and jurisdiction in all the capital towns and countries not only of Europe but in the four quarters of the globe. This is what the ruling of the Division Bench not only leads to, but necessarily involves. In support of that ruling the two forms of the definition as given in the Act were referred to as showing that places such as Cyprus were clearly within the meaning of the first part of the definition, and which states that 'Native State' means, 'in reference to Native Indian subjects of Her Majesty, all places without and beyond the Indian territories under the dominions of Her Majesty,' and this arguendo was contrasted with the other part of the definition, which says that 'Native State' means, 'in reference to European British subjects, the dominions of Princes and States in India in alliance with Her Majesty.' But so far from affording any contrast to the first part of the definition, it is simply to my mind, as regards the expression 'Native State,' another way of saying the same thing, unless it be supposed that the Legislature of India were anxious to provide against the possibility of their being understood to have contemplated the application of the Indian Penal Code to Englishmen on account of offences committed in England, or any part of Europe where there is established law and properly constituted tribunals. Both parts of the definition read by the light of the preamble mean one and the same thing, viz., a 'Native State,' where by treaty, capitulation, etc., the Governor-General has power and jurisdiction.

4. Allusion was made at the hearing to the third and fourth sections of the Indian Penal Code, Act XLV of 1860. Section 3 provides that 'any person liable by any law passed by the Governor-General of India in Council to be tried for an offence committed beyond the limits of the said territories, shall be dealt with according to the provisions of this Code for any act committed beyond the said territories in the same manner as if such act had been committed within the said territories.' This raises, in a somewhat loose way, the same argument we have had to consider under Act XI of 1872. It is to be observed that the Indian Penal Code was passed in 1860, and came into operation on the 1st January 1862, and therefore long before the passing of Act XI of 1872, and it affords, therefore, no assistance in interpreting the words 'Native State' as used in that Act, although I think it can only mean 'Native State' within the purview of its preamble. And by Section 4 of the Penal Code the words 'the dominions of any Prince or State in alliance with the Queen' are to my mind plainly synonymous with 'Native State' as used in Act XI of 1872. But is it really the case that Cyprus is a 'Native State' in the sense of being a foreign country, i.e., a country not subject to but foreign to the Queen's Government? I think it may be gravely doubted whether Cyprus is such a 'Native State' or a 'Native State' in any sense whatever. It has for the present been ceded by the Turkish Government to the Crown of England. This is shown by the treaty between the two powers called 'Convention of defensive alliance between Great Britain and Turkey,' signed the 4th June 1878, and by the first articles of which it is, among other things, provided as follows: 'In order to enable England to make necessary provision for executing her engagements, His Imperial Majesty the Sultan further consents to assign the Island of Cyprus to be occupied and administered by England,' and the Island is accordingly occupied by military forces directly under the control and command of the Queen's Government, and it is governed, and in all respects fully administered, by English officials, and it would be hopeless to discover this state of things as in any way contemplated by Act XI of 1872, or to maintain that Cyprus under such conditions was within the meaning and intent of that Act a 'Native State,' for so far from being a place in the sense of a 'Native State' without and beyond the dominion of Her Majesty, it is directly administered by Her officers, and is under Her Majesty's dominion and control.

5. I shall now briefly notice the other Acts and authorities to which I have already alluded as bearing on the construction to be put on Act XI of 1872. The first of these is Act I of 1849, which is entitled 'An Act to provide more effectually for the punishment of offences committed in Foreign States,' and which, to say the least, affords no support whatever to the argument for the prosecution. It recites the various old Indian Regulations which it states it is expedient to make more effectual and uniform, and also to extend their application, and then by Section 2 it provides that 'all subjects of the British Government, and also all persons in the civil or military service of the said Government, while actually in such service, and for six months afterwards, and also all persons who shall have dwelt for six months within the British territories under the Government of the East India Company, subject to the laws of the said territories, who shall be apprehended within the said territories, or delivered into the custody of a Magistrate within the said territories, wherever apprehended, shall be amenable to the law for all offences committed by them within the territory of any Foreign Prince or State, and may be bailed or committed for trial as hereafter provided, on the like evidence as would warrant their being held to bail or committed for the same offence, if it had been committed within the British territories.' This speaks for itself, the expression Foreign Prince or State plainly meaning not such a place as Cyprus, but any Foreign Prince or State in India, or in other words, 'Native State,' while by the words 'the British territories' can only be intended territories or possessions in India as distinguished from those of a 'Native State' there. The expression 'the British territories' occurs in other sections of the Act, while the word 'Government' is defined to mean the Governor or Governor in Council or other person or persons having supreme executive authority in the Presidency or place to which the committing Magistrate belongs. The whole Act is only intelligible as a law to be carried out in India, having reference on the one hand to the British territories and on the other to those of Native Princes or States. Section 9, the last section of this Act, is not undeserving of notice; it provides that the authority given to the Government may also be exercised by any Commissioner or other person acting in the civil service, a provision which is consistent with the other portions of the Act, and which it would surely be absurd to apply to Cyprus.

6. With regard to the Indian Articles of War, Article 171 has been referred to. It is there provided that 'in any place out of British India offences against the Indian Penal Code, and not included in the foregoing Articles, shall, when committed by any person amenable to these Articles, be cognizable by a General Court Martial to be convened by any Officer who is empowered by warrant, or Order in Council, or by Article 77, to appoint General Courts Martial.' Now it appears to me that the fair inference from such an express provision is that, in contemplation of the Legislature which passed it, there was no other law on the subject, and the trial by Court Martial was the only and sole proceeding intended for offences against the Indian Penal Code committed in places out of British India by persons subject to the Articles of War. Such offences are distinctly and expressly so specified, and we are not left to surmise or suggestion such as is necessary in order to favour the reading of the term 'Native State' as maintained by the prosecution in this case.

7. The next authority referred to in support of the conviction was the 29th section of the Act of Parliament, 26 Geo. III, c. 57, as showing that the Jurisdiction of the Courts in British India over any of the King's subjects could be extended so as to include cognizance of offences committed beyond British territory, and not only in India, i.e., in States governed by Native Princes, but in other parts of the world. But in my judgment the 29th section has exactly the opposite effect, for it plainly appears to me to limit the extension of the authority of the Courts in question to the countries or parts of the world specially selected and named, and that not only no other places but that no general or indefinite extension of jurisdiction was intended. The 29th section of 26 Geo. III, c. 57, is in these terms: 'That as well the servants of the said United Company, as all other of His Majesty's subjects resident or to be resident in India, shall be and are hereby declared to be amenable to the Courts of oyer and terminer and goal delivery, and Courts of general or quarter sessions of the peace, in any of the British settlements in India, for all murders, felonies, homicides, manslaughters, burglaries, rapes of women, perjuries, confederacies, riots, routs, retainings, oppressions, trespasses, wrongs, and other misdemeanours, offences, and injuries whatsoever, by them done, committed, or perpetrated, in any of the countries or parts of Asia, Africa or America beyond the Cape of Good Hope, to the Straits of Magellan, within the limits of the exclusive trade of the said United Company, whether the same shall have been done, committed, or perpetrated, or shall hereafter be done, committed, or perpetrated, against any of His Majesty's subjects, or against any other person or persons whatever.' It will be observed that the countries or parts of the world to which this section was to apply were. 'Asia, Africa, or America, beyond the Cape of Good Hope, to the Straits of Magellan,' a definition and description which by no contrived meaning or ingenuity could be made to apply to Cyprus or any other place in the same position or relation to the British Government or the Government of India.

8. The only other authority in support of the conviction I need refer to was another Act of the British Parliament, the 33 Geo. III, c. 52, and Section 67 of that Act. I was, I confess, not a little surprised that this Section 67 should have been referred to on behalf of the Government, for it is not only plainly inconsistent with the conviction of the accused by the Agra Court, but it supplies an express definition of the lands or territories to which its application was to be limited altogether at variance with the meaning attempted to be put upon the term 'Native State' as that is used in Act XI of 1872. Section 67 of the 33 Geo. III, c. 52 is in the following terms: 'That all His Majesty's subjects, as well servants of the said United Company as others, shall be and are hereby declared to be amenable to all Courts of Justice, both in India and Great Britain, of competent jurisdiction to try offences committed in India, for all acts, injuries, wrongs, oppressions, trespasses, misdemeanours, offences, and crimes whatever, by them, or any of them, done, or to be done, or committed in any of the lands or territories of any Native Prince or State, or against their persons or properties, or the persons or properties of any of their subjects or people, in the same manner as if the same had been done or committed within the territories directly subject to and under the British Government in India.' The words here used are thus made distinctly to apply to 'the lands or territories of any Native Prince or State,' and the offences described being offences 'committed in India,' and the expression 'Native State' must be similarly limited. This provision therefore of the 33 Geo. III, c. 52, is an authority directly and expressly against the jurisdiction of the Agra Court in the present case.

9. I have now, I think, adverted to all the principal anthorities referred to in support of the conviction and of the application for confirmation of sentence, and, I think, I have shown that not only do they fail to afford that support, but that their weight, if not their distinct and express bearing, is entirely in the opposite direction. The conclusion therefore at which I arrive is that Cyprus is not a 'Native State' within the meaning of Act XI of 1872, that in fact it is not a ' Native State ' in any sense. It never was and is not now a 'Native State' in relation to Turkey, for it was and in some sense still is part of the Turkish dominions. It cannot, I consider, be otherwise in its relation to the English Crown and Government, nor can we make it so by any interpretation of our laws.

10. But there is another and most serious consideration which I feel bound to notice, viz., whether it is within the powers of the Indian Legislature not to pass such a law as Act XI of 1872, but a law capable of such a construction as is necessary in order to sustain this conviction of Sarmukh Singh. In other words, can the Government of India in its legislative capacity pass a law for trial and punishment in respect of offences committed in other territories and jurisdictions governed and administered by and equally representing the Crown and Government of England? I think the answer to these questions in the affirmative might be successfully disputed. On this subject our attention was directed to certain opinions expressed by Wheaton in his International Law, 8th edition, pp. 179, 180, Sections 111-113. Wheaton there lays down that every sovereign State is independent of every other, in the exercise of its judicial power. But this general possession must of course be qualified by the exceptions to its application arising out of express compact, such as conventions with foreign States, and acts of confederation, by which the State may be united in a league with other States, for some common purpose. 'Subject to these exceptions, the judicial power of every State is co-extensive with its legislative power.' Wheaton goes on to state that: 'The judicial power of every independent State, then, extends, with the qualifications mentioned,--(1) To the punishment of all offences against the municipal laws of the State, by whomsoever committed within the territory; (2) To the punishment of all such offences, by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports; (3) To the punishment of all such offences by its subjects, wheresoever committed.' This last sentence would require more precise definition even if Cyprus was truly a 'Native State' within the meaning of Act XI of 1872, without the tribunal and procedure afforded by the Articles of War. Wheaton further lays down as follows: 'By the common law of England, which has been adopted in this respect in the United States, criminal offences are considered as altogether local and are justicable only by the Courts of that country where the offence is committed. But this principle is peculiar to the jurisprudence of Great Britain and the United States, and even in these two countries it has been frequently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the Courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question; but the preponderance of their authority is greatly in favour of the jurisdiction of the Courts of the offender's country.' The legal doctrine which it is here admitted is paramount in the British and American Courts, viz., that criminal offences are local and triable only where committed, appears to be qualified in a rather doubtful manner, on the authority too of certain jurists among whom there is a difference of opinion, although the weight of authority favours the jurisdiction of the offender's country, and the views so stated assume their application to a distinctly foreign State. But it is unnecessary to pursue the subject further, as, I think, I have shown that Cyprus is clearly not a foreign or Native State' according to the true intent and meaning of Act XI of 1872.

11. For all these reasons I am of opinion that the conviction in the present case cannot stand, seeing that it rests on the authority of a Court which was without jurisdiction to try the accused.

Pearson, J.

12. The question of jurisdiction raised by the first plea in appeal, and decided by Mr. Justice Turner and myself on the 24th January last, and now brought before the whole Court for reconsideration, is in so far as it relates to Section 3 of Act XI of 1872 simply whether Cyprus is or is not without and beyond the Indian territories under the dominion of Her Majesty; upon this point there is no room for discussion. The provisions of Section 9 of the Act appear to be quite within the competency of the Legislature, and to be not less consistent with sound reason and good policy than conducive to the interests and ends of justice.

13. Apart from the question whether Cyprus is a Native State as defined in Section 3 of Act XI of 1872 is the question of the construction to be put on the 170th and 171st Articles of War. I entertain no doubt that the construction placed by Mr. Justice TURNER and myself in our proceeding of the 24th January last is correct.

14. The evidence on the record fully convicts the prisoner of the offence of murder, and there are no circumstances which would warrant a modification of the sentence passed upon him by the Agra Sessions Court. I would dismiss his appeal and confirm the sentence.

Spankie, J.

15. A preliminary objection was taken by the Junior Government Pleader, that this Court had no power to review under Section 297 of the Criminal Procedure Code the ruling that the Cantonment Magistrate of Agra had jurisdiction to inquire into the charge of murder preferred against Sarmukh Singh. The Criminal Procedure Code provides that no judgment or final order, once signed, shall be altered or reviewed by the Court which gives such judgment or order. We are not now asked to review the order of the Division Bench which directed the Magistrate to commence the inquiry. That order was not a final order or judgment in the case. It was a preliminary order. At the stage at which the case has now arrived, we are called upon to consider whether we can confirm the sentence of death passed upon the prisoner who has been convicted of murder. An appeal has been preferred from the sentence passed by the Sessions Judge, and the question of jurisdiction has again arisen. The case has been laid before all the Judges of this Court, and I do not understand how we are precluded from determining this question of jurisdiction because, for the purpose of determining whether or not the Magistrate should make an inquiry, a Division Bench of the Court had ruled that he was competent to do so. If we come to a decision that there was no jurisdiction, then the commitment was bad, we could not confirm the sentence of death, and would be competent to annul the proceedings. Again, if there was no jurisdiction, it would be monstrous if we were %o hold that we were bound to accept as conclusive the order of this Court sitting as a Division Bench, directing the Magistrate to commence his preliminary inquiry.

16. On the point of jurisdiction I see no possibility of differing from the learned Judges who directed that the inquiry should proceed. Act XI of 1872 is one to provide for the trial of offences committed in places beyond British India, and for the extradition of criminals. It is called the foreign Jurisdiction and Extradition Act. The definition of Native State may be arbitrary, but it must be accepted. There is no doubt whatever of the power of legislation to pass such an Act in regard to the native subjects of the Empress, and if this be so, the object of the Act being to provide for the punishment of offences committed by them beyond British India as if they had been committed in British India, Cyprus or any other foreign country, would be a 'Native State,' in reference to the prisoner in this case, within the meaning of the Act. I also accept the view taken by the learned Judges as to Articles 170 and 171 of the Articles of War. There are no grounds whatever for not accepting the decision of the Sessions Judge on the merits. I would therefore confirm the sentence of death passed upon the prisoner.

Oldfleld, J.

17. The material point raised by the counsel for the prisoner is that the Agra Sessions Court had no jurisdiction to try the prisoner, a soldier in the 13th Native Infantry, for the offence of murder committed in Cyprus. A preliminary objection was taken on the part of the prosecution that the Court cannot now go into the question of jurisdiction, since it has been determined by the order of two Judges of this Court on the 24th January 1879. That order was made under Section 297 of the Criminal Procedure Code, and it directed the Cantonment Magistrate of Agra to inquire into the charge against the prisoner, and in passing the order the learned Judges held that the Agra Court had jurisdiction to entertain the charge.

18. The case is now before this Court for confirmation of the sentence of death passed by the Sessions Judge on the prisoner, convicted for murder under Section 302 of the Indian Penal Code, and in dealing with it, it is incumbent on us and our absolute duty before we can affirm the sentence to satisfy ourselves that the sentence is one which could legally be passed by the Sessions Judge, and we cannot be restricted by any order which may have been passed in the course of the proceedings. I may add that I can find no prohibition in the Code of Criminal Procedure against a review of an order of the nature of the one which has been made in this case. The only express prohibition contained in the Criminal Procedure Code against altering or revising orders is in Section 464, and that section refers to judgments and final orders given under chapter XXXIV on conclusion of a trial in any Criminal Court.

19. On the question of jurisdiction I concur in the view taken by Mr. Justice Pearson and Mr. Justice Turner in their order of the 24th January last. Act XI of 1872 is an 'Act to provide for the trial of offences committed in places beyond British India, and for the extradition of criminals.' Section 1 makes it apply to 'all Native Indian subjects of Her Majesty without and beyond the Indian territories under the dominion of Her Majesty,' and by Section 9 'all British subjects, European or Native, in British India, may be dealt with in respect of offences committed by them in any Native State as if such offences had been committed in any place within British India in which any such subject may be or may be found,' and 'Native State' is defined in Section 3 to mean, 'in reference to Native Indian subjects of Her Majesty, all places without and beyond the Indian territories under the dominion of Her Majesty; in reference to European British subjects, the dominions of Princes and States in India in alliance with Her Majesty.' It has been urged that it could not have been intended that the term 'Native State' should include a remote country like Cyprus, that the term Native State is not a fitting term to apply to States beyond the Peninsula of India, but such a consideration as this cannot be allowed to override the plain language of the Act, which admits of but one interpretation, namely, that all places without and beyond the Indian territories under the dominion of Her Majesty are 'Native States' in the sense in which the term is used in the Act. And the objection deserves little weight when we find that the term is used in different senses in the Act, when referred to Native Indian subjects and European British subjects. The term took the place of that of 'territories of any foreign Prince or State' used in Act I of 1849, and that it was intended to have a very extended application is shown by some alterations in the language of the Act as passed, and as it was first introduced. The Governor-General in Council was given under a previous draft of the Act power to establish Courts for trial of offences committed in 'the territories of Native States and Princes in and adjacent to British India,' and for the appointment of Justices of the Peace in such State or territory, whereas in the Act as it was passed these powers can be exercised 'within any country or place beyond the limits of British India.'

20. I should have scarcely thought it necessary to enter so fully into this point, but for the stress which was placed on it by the prisoner's pleader. Cyprus is therefore clearly a Native State within the meaning of the Act. It was also pointed out that by a proviso in Section 9 no charge as to any offence shall be inquired into in British India unless the Political Agent, if there be such for the territory in which the offence is said to have been committed, certifies that in his opinion the charge is one which ought to be inquired into in British India, but this proviso only applies 'if there be such' a Political Agent in the territory, and it has not been shown that any such Political Agent, that is, as defined in Section 3, any officer representing the British Indian Government, was established at Cyprus. The prisoner can therefore be dealt with in respect of the offence alleged to have been committed in Cyprus as if such offence had been committed in the Agra Cantonment.

21. Referring to Article 170 of the Indian Articles of War, 'Any person subject to these Articles, who, at any place in British India within the jurisdiction of any Court of Criminal Justice established by Her Majesty, or by the Government of India, or by the Local Government, is accused of any offence against the Indian Penal Code, and not included in the foregoing Articles, shall be delivered over to the nearest Magistrate to be proceeded against according to law.'

22. The Penal Code applies to British India, i.e., the territories defined in the 1st section of the Code, and had the prisoner been accused at Agra of an offence against the Indian Penal Code he would have been delivered over to the nearest Magistrate to be proceeded with according to law, and the effect of Section 9 of Act XI of 1872 will be to permit his being dealt with for the offence committed in Cyprus as if it had been committed within British India and the proceedings which have been taken are therefore quite according to law. There is nothing in Article 171 inconsistent with effect being given to Article 170.

23. The crime of murder is clearly proved against the prisoner, and in my opinion the sentence of death must be confirmed.


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