Ram Lall, C.J.
1. The following two questions have been referred to a F.B. for decision:
1. Whether when proceedings are submitted by a Ses. J. to the H. C. before 15-8-1947 under Section 374, Cr. P.C. for confirmation of a sentence of death passed by him, the Lahore H, C. has Jurisdiction to deal with the case, irrespective of the fact that the offence was committed & the trial held in territories comprised in the East Punjab Province?
2. Whether the appeal filed: (a) by the convict sentenced to death, & (b) by co-accused who were sentenced to a lower penalty but notice of enhancement of sentence was served on them before 15-8-1947 by the Lahore H. C; can be heard & decided only by the said Ct.?
2. The reference arose in the following circumstances : One Bashir Ahmad was arrested at Jullundur on 8-3-1947 in connection with a murder said to have been committed on the same day at Jullundur. The learned Ses. J. tried him at Jullundur & convicted & sentenced him to death on 2-7-1947. On 11-7-1947 an appeal was preferred by the convict to the H. C. of Judicature at Lahore & on 1-8-1947 the learned Ses. J. submitted the proceedings to the H. C. for confirmation of the sentence of death under the provisions of Section 374, Cr. P.C. Meanwhile the partition of the country took place & the whole case was transferred to the East Punjab H. C. under Article 5 & 13 of the High Courts (Punjab) Order, 1947, on X5-8-1947.
3. When the case came up before a Division Bench of this Ct. for disposal, Mr. Gurdev Singh who represented the applt., raised the preliminary objection that this Ct. had no jurisdiction to deal with either the appeal or the submission under Section 374, Cr. P.C. & that the transfer of the proceedings to this Ct. was inoperative & invalid. The objection was founded on the argument that under Article 13 (2) of the said High Court's Order, such submissions could be dealt with by the Lahore H. C. alone, & the connected appeal could be heard & disposed of only by that Ct. The argument was based largely on recent decision by a Division Bench of the Lahore H. C. ('Nazar Mohammad v. The Crown' Cri. Misc. No. 75 W of 1947), decided on the 19-3-1948 by Sir Abdur Rehman, J. & Marten, J. In that case the offence had been committed & tried at Karnal which now forms part of the Bast Punjab & three persons had been sentenced to death & two to transportation for life. The convicts had preferred an appeal to the Lahore H. C. & the Ses. J. had submitted the proceedings to the H. C. for confirmation of the sentence under Section 374, Cr. P.C. before 15-8-1947. A petn. for enhancement of the sentence of those persons who had been sentenced to the lower penalty had been preferred by the complainant & the H. C. had issued a notice on this petn. also before 15-8-1947. The convicts were at the time in the Lahore Central Jail but the records of the case had been transferred to the East Punjab H. C. The Lahore H. C. was moved under Section 401, Cr. P.C. for tne issue of a writ of 'habeas corpus' on the ground, 'inter alia' that even though the appeals filed by the convicts had been properly transferred to the East Punjab H. C., the warrants for the detention of the convicts in Pakistan Jail, which had been duly issued by the Ses. J. of Karnal, were deprived of their validity & effect when the partition of the country took place, because the Ct. which had issued them ceased to be a Ct. having jurisdiction in the West Punjab where the jail in question was situate. In the petn. it was not challenged that the records of the case had been properly sent to the East Punjab High Court for disposal & the only ground on which the prayer was based was that the warrants which had been properly issued by the Ses. J. had ceased to have validity. The learned Single Judge of the Lahore High Court before whom this petn. was laid felt that a difficult question of constitutional law was involved & he referred the question to a Division Bench for disposal. Before this Division. Bench Mr. Sleem, a leading Advocate of Lahore, raised a new contention on behalf of the convicts to the effect that the Lahore H. C. alone had jurisdiction to deal with the whole case - with the submission of the Ses. J under Section 374, Cr. P.C. for the confirmation of the sentence, as this submission amounted to 'an original reference', & also with the appeal of the other convicts as this was intimately connected with the so-called reference & also because the Lahore H. C. was seized of the case because a notice of enhancement of sentence had been issued before 15-8-1947 to the applts. who had been sentenced to transportation for life.
4. The learned Judges called upon the Advocate-General of West Punjab, who represented the Crown before them, to argue this new point raised by Mr. Sleem, counsel for the petnrs., but he declined to do so & accordingly they asked Mr. Asad Ullah Khan, a prominent Advocate of the Lahore H. C, 'to represent the other side of the picture to enable them to come to a correct decision'. The learned Judges remarked in their judgment that Mr. Asad Ullah Khan appeared before them:
in pursuance of their request but he was or no assistance as he confessed that he was unable to controvert the arguments advanced by learned counsel for the petnrs. in regard to the second contention.
It may be noted that the second contention was the new point raised by Mr. Sleem for the first time before the Division Bench dealing with the reference made by the Single Judge. The learned Judges considered that it was 'unfortunate that both sides of that question had not been placed' before them, & therefore they examined the contention themselves with greater care.
5. In the result the learned Judges rejected the prayer for a writ of habeas corpus in connection with which the Single Judge had referred the case but proceeded to accept the contention raised by Mr. Sleem for the first time before them. The two points decided by the Bench in favour of the petnrs. are identical with those which have been raised in this Ct. by Mr. Gurdev Singh & which have now been referred to this F.B. for decision. I was a member of the Bench that referred this case & as it appeared 'prima facie' that the judgment of the Lahore H. C. was open to objection on both these points, & in view of the very great importance of the question involved the reference was laid before a F.B. of five Judges. In view of the somewhat one sided arguments placed before the Lahore H. C, I made a suggestion to the President of the Bast Punjab H. C. Bar Association to argue these points as 'amicus curiae' with the help of any other leader of the Bar whose assistance he desired. This suggestion the President kindly accepted. When the case had been argued before the F.B. for some time, by great good luck Mr. M. Sleem of the Lahore Bar came to Simla to argue a long & sensational murder appeal & we requested him to argue the two points raised 'amicus curiae'. This was a fortunate coincidence not only because of Mr. Sleem's pre-eminent position as a criminal lawyer but also because he had argued both these points before the Lahore H, C. with success. We gave him such facilities as we could in the matter of providing such books & papers as Mr. Sleem wanted & we have had the benefit of very learned & illuminating arguments from the various sets of leading Advocates. The whole question resolves itself, therefore, into whether the interpretation of Article 13 of the High Courts (Punjab) Order, 1947, by the H. C, Lahore, is correct when it is held by that Ct. that a submission made by a Ses, J. under Section 374, Cr. P.C. is 'an original reference' - which was pending at Lahore before the 15th August - was intended to be dealt with by that Ct. alone, & secondly whether the connected appeal of the persons who were sentenced to death remained to be dealt with by that Ct. as also the appeals of persons convicted in the same Sessions trial against whom the H. C. had issued a notice of enhancement of sentence in the exercise of its revisional powers. The learned Judges of the Lahore H. C. have held that on a consideration of the language employed in Article 13 read in conjunction with the Letters Patent of the Lahore H. C. it is clear that the intention was that in such matters that Ct. alone should have the power to deal both with the submission, the appeal & the revision petn. for enhancement.
6. Article 13, High Courts (Punjab) Order, 1947, is in the following terms:
13) (D Subject as hereinafter provided, the H. C. at Lahore shall have no jurisdiction in respect of the territories for the time being included In the Province of East Punjab or in the Province of Delhi. (2) Notwithstanding anything contained in this order: (a) any proceedings which, immediately before the appointed day, are pending in the H. C. at Lahore on its original side, including any proceedings then pending in the said H. C. as a Ct. of reference, shall be heard & determined by that Ct; (b) the H. C. at Lahore shall have the like jurisdiction to hear & determine any appeal from an order of a Judge of the said Ct. on its original side as if this Order had not been made, & the H. C. of East Punjab shall not have jurisdiction to hear or determine any such appeal; & (c) the H. C. at Lahore shall have the like jurisdiction to review any order made by any Judge of the said H. C. as it would have had if this Order had not been made, & the H. C. of East Punjab shall have no jurisdiction to review any such order. (3) Subject to the preceding provisions of this Article, all proceedings pending on the appellate side of the H. C- at Lahore immediately before the appointed day, shall, where the Ct. of origin is, as from that day, situated in the Province of East Punjab or in the Province of Delhi, stand transferred by virtue of this Order to the H. C. of East Punjab.
7. The learned Judges appear to have based the whole of their judgment on the assumption that the Letters Patent of the Lahore H. C. was exhaustive in the sense that the Ct. could not exercise any kind of jurisdiction or deal with any class of case which could not be brought within the four corners of the language employed in the Letters Patent. So far as criminal jurisdiction was concerned they said that it fell within five distinct categories: (i) Ordinary original criminal jurisdiction (Cls. 15 & 16); (ii) Extraordinary original criminal jurisdiction (Cl. 17); (in) Appellate criminal jurisdiction (from the criminal Cts. of the Province of the Punjab & Delhi) (Cl. 20); (iv) jurisdiction as a Ct. of reference; & (v) Revisional Jurisdiction (Cl. 21).
8. The learned Judges went on to say that the words 'as a Ct. of reference' used in Article 13 (2) (a), High Courts (Punjab) Order, 1947, could be brought within the ambit of C1. 21, Letters Patent, so as to include submission made under Section 374, Cr. P.C. They then reproduced Clause 21, Letters Patent, which is in the following terms:
21. And we do further ordain that the H. C of Judicature at Lahore shall be a Ct. of reference & revision from the criminal courts subject to its appellate jurisdiction, & shall have power to hear & determine all such cases referred to it by the Ses. J., or by any other officers in the Provinces of the Punjab & Delhi who were, immediately before the publication of these presents, authorized to refer cases to the Chief Ct.' of the Punjab & to revise all such cases tried by any officer or Ct. possessing criminal Jurisdiction in the Provinces of the Punjab & Delhi, as were, immediately before the publication of these presents, subject to reference to or revision by the Chief Ct. of the Punjab.
9. An examination of the language of that clause showed that appellate jurisdiction which is provided for separately by Clause 20 was treated to be different from the jurisdiction exercised as a Ct of reference or as a Ct. of revision which was to be dealt with by 01. 21. The powers exercised by the H. C. as a Ct. of revision are mentioned in Ss. 435, 436 & 439, Cr. P.C. & those which it exercises as a Ct. of reference are mentioned in Ss. 432, 433 of that Code. The learned Judges then went on to say that the Lahore H. C. could not exercise the powers as a Ct. of reference under these sections as there never had been a Presidency Mag. & no Presidency town) at any time within the old Province of the Punjab; but in so far as this Ct, has been authorised to act as a 'Ct. of reference' under the Letters Patent of this Ct., it must follow that the powers to be exercised by it in that capacity must be found within the ambit of Clause 21, Letters Patent.
'The Court' they held, was meant to act as a Ct. of reference in respect of cases which were to be referred to it by the Ses. JJ. or by other officers in the Province of Punjab who were authorized to refer cases to the Chief Ct. of the Punjab. Similarly this Ct. (Lahore) was Intended by the Letters Patent to act as a Ct. of reference & thus to hear & determine all cases tried by any officers or Cts. possessing jurisdiction in the Provinces of the Punjab & Delhi as were subject to reference to or revision by the Chief Ct. of the Punjab.
As however there was nothing in the Cr. P.C. which could apply to the Lahore H. C. as a Ct. of reference because Ss. 432 & 433 would have no application to the Punjab, some kind of cases must be found which could be called cases referred to the H. C., if that Ct. was to exercise jurisdiction as a Ct. of reference, outside Sections 432 & 433. As the learned judges say
there must, however, be some proceedings to which this term can be correctly applied if the provisions of Clause 21, Letters Patent are to have any meaning....what can those cases be?
Take Section 307, Cr. P.C. for instance When a Ses. J, disagrees with the verdict of jurors or a majority of them & is clearly of the opinion that it is necessary for the ends of justice to submit the case to the H C., he is bound to submit it without recording his judgment, & in dealing with the case so submitted, the H C. may exercise any of the powers which it could have exercised on an appeal.
It is clear that the H. C. will neither be acting in such a case as an original Ct. & thus exercising its ordinary or extra-ordinary criminal jurisdiction, nor as a Ct. of appeal & thus exercising its appellate jurisdiction. It cannot also be correctly stated to be called upon to exercise its revisional jurisdiction. By process of elimination one must necessarily come to the conclusion that the H. C. would be in that case acting as a Ct. of reference in respect, of a case which has been referred to it by the Ses. J.
The learned Judges then went on to quote the authority of Horace Byall, in the matter of '29 Cal 286 (FB)' to say that the jurisdiction so exercised by the H. C. was not its original criminal jurisdiction but it heard the case as a Ct. of reference in the. exercise of jurisdiction vested in it by the corresponding clause of the Letters Patent which was co-extensive with its appellate jurisdiction. On the analogy of Section 307, Cr. P.C. & on the basis of what was said in the Calcutta case quoted above, the learned judges held that the Ct. in both cases would be 'acting as a Ct. of reference within the meaning of Clause 21, Letters Patent.
10. In meeting the argument, raised by the judges themselves, that the proceedings mentioned in Article 13 were on a grammatical consideration of the language only proceedings on the original side of the Ct., the learned Judges said that the words could not be limited in their interpretation to such proceedings only because if they were 'there would be no Ct. left to exercise jurisdiction in cases remitted to this Ct. before the appointed day for confirmation of death sentences', The opening words in Article 13 (2)(a), according to the learned Judges, were general in character & they did not find it possible to limit their operation in the absence of anything in the order to the proceedings pending on the original side only.
11. So far as the appeal filed by the convicts sentenced to death was concerned, their Lordships found that under Section 376, Cr. P.C. when dealing with a submission under Section 374, the Ct. could pass any order that it had to pass on appeal &, therefore, they held that 'it could not have been possibly intended that both Cts', i.e. the Lahore H.C. & the East Punjab H. C.
would possess jurisdiction in regard to the same subject matter & be entitled to give, if so minded, two conflicting judgments, so much so that one of the H. Cs. may acquit the accused of the offence & the other H. C. may convict them of the same offence & condemn them to death.
They accordingly held that as an order made by the Lahore H. C. in such case would have the effect of an order passed by the H. C. of the East Punjab
the decisions by the Lahore H. C. of the reference in cases which have not been transferred to the H. C. of the East Punjab (the proceedings pending on the appellate side alone of this Ct. being covered by Sub-clause (3)) are to have the effect for all purposes not only of an order passed by this Ct. but also by the H. C. of the East Punjab, while the effect of the decision of the appeals by the H. C. of the East Punjab would be as if they have been decided by this Ct. as well.
12. To avoid a conflict of decisions & the absurdity of the result that would follow, their Lordships were constrained to construe the words 'subject to the provisions of this Article' in Article 13 (3) so as to include proceedings which were then pending before it as a Ct. of reference & also intimately connected proceedings like. appeals which have necessarily to be decided before the determination of the reference made by the Ses. JJ.
13. Then they proceeded to quote a number of leading English cases on interpretation to the effect that in order to give full effect to the intention of the Legislature an enlarged meaning should be given to the words employed, & even if necessary, violence done to the grammatical construction of a section.
14. So far as the appeal of the co-convicts was concerned the Ct. had taken seisin of the case when notice for enhancement of sentences was issued & the Lahore H. C. continued to exercise its powers of revision under Section 439, for the transfer of which class of cases there was no provision in the H. Cs. (Punjab) Order, 1947. As under Sub-section (6) to Section 439, the H. C. could examine the whole case & exercise all the powers of appeal, the revision & the appeal which was connected with it should be left to be dealt with by the Ct. which had taken seisin of the case before the 15-8-1947, rather than by a Ct. which was new Tribunal created for the determination of these cases. Here again, the basis of the judgment on this point was that conflicting orders or judgments on the same set of facts should be avoided.
15. In effect the argument in so far as submissions under Section 374, Cr. P.C. are concerned Is that since Ss. 432 & 433 (to which might also be added Section 123 added by the Act of 1923) have no application in the Punjab, & as the Lahore H. C. was intended to act as 'a Court of reference' by Clause 21, Letters Patent, therefore all proceedings submitted by any subordinate Ct. to the H. C. amounted to criminal references, because if this were not so, a void in jurisdiction would be created, which never could have been intended. Thus when a case was submitted under Section 307, Cr. P.C. the H. C. would act as a Ct. of reference by a process of elimination, & on the authority of Horace Lyall's case, (29 Cal 286), such a reference amounted to a reference on the original side. So far as connected appeals were concerned, they had to be decided before the so called reference & in order to avoid a conflict of decisions by two superior Cts. on the same subject matter, the Ct. that dealt with the submission should also deal with the appeals. In so far as the appeals by co-convicts who had been served with a notice of enhancement of sentence were concerned, again to avoid a conflict of decisions these appeals were also left to be decided by the same Ct., particularly when the revision under Section 439 was properly before the Lahore H. C. & there was no provision for the transfer of revisions where on a notice of enhancement a convict could show cause against the conviction itself by virtue of Sub-section (6) to S 439, Cr. P.C.
16. It appears to me, with very great respect, that the whole judgment of the Lahore H. C. is based on the fundamental misconception that the Letters Patent is exhaustive of all kinds of jurisdictions exercisable by that Ct. There is, however, intrinsic evidence in the Letters Patent itself that this is not the case. Let us first examine the provisions in the Letters Patent relating to the civil jurisdiction of the Ct. These are to be found in Clauses 9, 10, 11 & 12 & Clauses 24 & 25. Clause 9 deals with extraordinary original jurisdiction whereby the H. C. can remove a suit from a subordinate Ct. & try the same itself. Clause 10 deals with appeals from the judgments of judges of the Ct. sitting singly. Clause 11 gives power to the Ct. to hear appeals from subordinate civil Cts. within its jurisdiction. Clause 12 gives jurisdiction with regard to infants & lunatics, Clause 24 gives testamentary & intestate jurisdiction, while Clause 25 confers jurisdiction regarding matrimonial cases. It will be observed that there is no mention made of reviews or civil reference or insolvency & various other types of cases which the H. C. has been dealing with ever since it began to function. If the Letters Patent be held to be exhaustive of the powers of the H. C, decisions in the cases not specifically mentioned would all have to be held to be invalid & ineffective. An examination of the language of the Letters Patent shows that revisional civil jurisdiction has not been conferred, but in Clause 10 this has been assumed to have been given as also the powers of superintendence under Section 107, old Govt. of India Act.
17. Clause 37, Letters Patent, appears to me to be conclusive that the jurisdiction of the Ct. has not been exhaustively dealt with. This clause is in the following terms:
37. And we do further ordain & declare that all the provisions of these Our Letters Patent are subject to the Legislative powers of the Governor General in Legislative Council, & also of the Governor General in Council under Section 71, Govt. of India, 1915, & also of the Governor General in cases of emergency under Section 72 of that Act, & may be in all respects amended & altered thereby.
It is obvious chat when the Letters Patent is subject to the powers of the Indian Legislature, & may be amended & altered thereby, they cannot be assumed to be exhaustive of the powers of the H. C. The language is so clear that it is unnecessary to cite instances whereby Legislative action the powers have been extended or curtailed. It is unfortunate that this clause was not brought to the notice of the learned Judges at Lahore, for I am of the opinion that if it had been so brought to their notice, their decision would, in all probability, have been different. In view of the terms of this clause & also of the fact that various types of jurisdictions are & have always been exercised by all H. Cs. (where clauses corresponding to Clause 37, Lahore High Court Letters Patent exist), though there is no specific mention of these jurisdictions, Mr. Saleem was constrained to admit that the Letters Patent was not exhaustive of the powers exercised by H. Cs. & with this finding it appears to me that the basis of the decision of the Lahore H. C. is shaken materially.
18. The second fundamental mistake in the judgment of the Lahore H. C. is that the distinction between 'a Ct. of reference' & 'a Ct. of confirmation' has not been noticed. It appears to me quite clear that a Ct. of confirmation is quite distinct & apart from a Ct. of reference & the two kinds of Cts. & the terms 'a Ct. of reference' & 'a Ct. of confirmation' have been used by the Code in contradistinction to each other. The learned Advocate General has drawn our attention to the language of Ss. 520 & 522, Cr. P.C. Section 520 says that
a Ct. of appeal, confirmation, reference or revision may direct an order made in certain previous sections to be stayed & may vary or annul the same.
Sub-section (3) of Section 522 enacts that an order under that section 'may be made by a Ct. of appeal, confirmation, reference or revision'. It seems clear that in the Cr. P.C. a clear distinction has been made between a Ct. of reference & a Ct. of confirmation, & therefore these are two distinct & different types of jurisdictions. It is wrong, therefore, to say that when a H. C. is dealing with a submission under Section 374, Cr. P.C. it is acting as a Ct. of reference. 'A Ct. of reference' is a technical term just as much as 'a Ct. of confirmation' & these terms should be strictly construed. That the two terms were never regarded as identical or even synonymous is amply borne out by the history of these two sections. So far as Section 520 of the present code which relates to stay of orders under Ss. 517, 518 & 519 is concerned, there was no corresponding provision in the Code of 1861. A provision for the stay of such orders was made for the first time in the Code of 1872 where the corresponding provision was Section 419. The opening words of that section were 'Any Ct. of appeal, reference or revision may direct....'Under Section 520 of the Code of 1832, which is repeated in the Code of 1898, the opening words are 'Any Ct. of appeal, confirmation, reference or revision ....' It will be seen that since 1882, a new Ct. has been named & added, & this is most significant for by its very terms a Ct. of confirmation is clearly meant to be something quite distinct & apart from a Ct. of reference or revision. To this extent, it may be said that the jurisdiction of the H. C. has been enlarged, or at least a new class of jurisdiction has been envisaged.
19. Similarly, so far as Section 522, dealing with powers to restore property & specifying what Cts. could make such an order, is concerned, there was no corresponding provision in the Code of 1861. In the Code of 1872, a corresponding provision was added for the first time by Section 534 whereby the power to restore was given to 'any Criminal Ct.' which convicted a person of an offence attended will criminal force. In the Codes of 1832 & 1908 the language of the corresponding provisions is almost identical. In 1923, however, Sub-section (3) was added for the first time & this says that an order of restoration could be made by 'a Ct. of appeal, confirmation, reference or revision'. The addition of 'a Ct. of confirmation' appears to be deliberate & clearly makes a distinction between a Ct. of reference, a Ct. of confirmation & a Ct. of revision.'
20. This point is still more clearly shown by the changes in the provisions made from time to time in the present Chapter in the Cr. P.C. dealing with this matter. Chap. XXVII comprising of Ss. 374 to 380 is now headed 'of the submissions of sentences for confirmation', & the same was the case in the Code of 1882. In the Code of 1872, however, the Chapter in which these provisions occur is Chap. XXI & is headed 'Reference'. Section 288 in that Chapter deals with confirmation of sentences & therefore this subject was then meant to be & was included in the term 'Reference'. In the body of this section the opening words are 'In cases so referred', & in the corresponding Section 399 of the 1861 Code the same words were used In this context. In the Code of 1882 & also in the present Code, the relevant section is 378 & there instead of the word 'referred' the word 'submitted' is. used, & it is clear, therefore, that the deliberate change in the language was made to take these submissions for confirmation of sentences out of the category of 'references'.
21. As to the correct method of interpreting these words there are some pertinent observations by Blacker, J, in a case reported as 'Mohammad Sharif v. Diwan Singh' AIR (27) 1940 Lah 95, where the question was whether a Ct. that could report a case was a Ct. of reference. The learned Judge observed as follows:
It is true that a case reported by a Ses. J. under Section 438 is frequently loosely described as a reference but when it comes to interpreting a statute one cannot gain any support from the mere fact that a term is habitually loosely used. One has to look at the statute itself. Looking at the statute itself I find that Ct. of reference can only be a Ct. such as is described in Section 433 of the Code where the word 'refer' is definitely used. No such word is used in Section 438 where the word 'report' is used instead. There would have been no difficulty in using the word 'refer' in Section 438 in place of the word 'report' had it been the intention of the legislature to include a Ct. acting under Section 438 in the category of Cts. of reference.
Mutatis Mutandis' the same reasoning can be applied to Cts. of confirmation as contra-distinguished from Cts. of reference.
22. We asked Mr. Saleem whether this aspect of the question was considered by the Lahore H. C, & how he proposed to meet the argument before us. Mr. Saleem. frankly conceded that this point had not been raised or considered at Lahore. He could make no effective answer & therefore made no useful contribution to the discussion on the point. All he could say was that we should bear in mind the case of a convict sentenced to death who had not chosen to appeal, but in whose case the Ses. J. was still bound to submit the proceedings for confirmation: there was nothing pending before the H. C. on the appellate side & therefore it could only act as a Ct. of reference & further would be acting on the original side. To say that a Ct. in such a case acted as a Ct. of reference would be to beg the whole question. It ignores the whole history & scheme of legislation on the subject which shows the Ct. is acting as a Ct. of confirmation as distinguished from a Ct. of reference & secondly its proceeding on the original side is an entirely different aspect of the situation which will be considered later. It is sufficient at present to say that in my view when dealing with a submission under Section 374, the H. C. is acting not in its original but in its appellate jurisdiction, for the reason that the only object of these proceedings is to ensure that in a case of serious nature where the life of a citizen is involved, the evidence should be properly scrutinized by a superior Ct., & that Ct. gives the same attention to a case where no appeal is filed as it would where it is moved on the appellate side. As a Ct. of confirmation, therefore, the H. C. performs the same functions as it does on the appellate side. The decision both of the appeal & on the question of confirmation of sentence is an indivisible mental act & the decision, therefore, is necessarily identical. Where there is an appeal by a convict, the submission under Section 374 becomes unnecessary in the sense that it is decided automatically with the appeal; but where an appeal has not been filed, the convict gets the same advantages that he would have had if he had in fact preferred an appeal. This I understand to be the main object & purpose of Section 374, Cr. P.C.
23. I feel confident, therefore, that if the distinction that the legislature has deliberately made between a Ct. of reference & a Ct. of confirmation had been brought to the notice of the Bench of the Lahore H. C, the decision of that Ct. would have been entirely different.
24. Reverting now to the language of Article 13 (2). of the High Courts Order, it appears to me that the learned judges of the Lahore H. C have not given sufficient weight to another important aspect of the matter. The question here is the interpretation of the words
any proceedings 'pending in the H. C. at Lahore on its original side, including any proceedings then pending in the said H. C. as a Ct. of reference'.
The learned Judges seem to think that unless submissions under Section 374 were included in these words, there would be a void in the jurisdiction which was granted to the Ct. by the Letters Patent.
25. In the first place it is clear that there are many other references, both on the civil & the criminal side, which are clearly included & therefore a void in the jurisdiction is not created. A reference under Ss. 99 & 100, Tenancy Act, may be by a Civil or a Revenue Ct.
26. Under the Stamp Act a reference may be made to the H. C. by a Civil, Criminal or a Revenue Ct. Under Section 60 of the Stamp Act, when a Ct. feels doubt as to the amount of duty to be paid in respect of any document, the judge may draw up a statement of the case & 'refer it, with his own opinion thereon, for the decision of the H.C.' Under Section 33 of this Act power is given to any Ct., civil or criminal, to impound any document which in the opinion of that Ct is understamped. The words of the proviso to Section 33 are important because they show that Mags, or Judges of criminal Cts. are bound to impound the documents under Chaps. XII & XXXVI, Cr. P.C. Section 35, proviso (d) (i), Stamp Act, shows that documents impounded, because they appear to be understamped, can be admissible in criminal cases, except those dealt with by Chaps. XII & XXXVI, Cr. P.C. Now Chap. VI of this Act deals with reference & revision. Section 57 empowers the Chief Controlling Authority to refer all cases with his own opinion where the amount of duty on any instrument is in dispute to the H. C. & the H. C. shall 'decide' the case so referred. Similarly, Under Section 60, Stamp Act, a reference could be made by any Ct., other than a Ct. mentioned in Section 57, to the High Court for decision. Section 61 makes a distinct provision for Civil, Revenue & Criminal Cts. making references & then acting upon the decision on the reference.
27. It is clear from the examination of the above cited provisions of the Stamp Act that references on the criminal side as well as on the civil & revenue side are contemplated to be made to the H. C. for decision & such references would clearly come within the language employed in Article 13 (2) of the H. Cs. Order afore-mentioned.
28. References on the civil side are constantly being made under various Acts & reference may be made in this connection to Section 66 (3), Income Tax Act, to Section 99 & 100, Tenancy Act, & to Order 46, Civil P.C. particularly Rules 6 & 7.
29. It is unnecessary to multiply instances & it was never disputed before us by any of the learned counsel who appeared that references can be & are constantly being made to the H. C. by Civil, Criminal & Revenue Cts. But there is one common feature about all these references & that is that the decision in all such cases is left to the Ct. to which reference is made. The reference is for a decision & not for the confirmation of a decision already made which is the case in regard to submissions under Section 374, Criminal P.C. In the last set of cases the proceedings are submitted not for another decision but for ratification only & this is apparent from the fact that the execution of the decision is by the Ses. J. who submits the proceedings. Reference in this connection may be made to Section 381, Cr. P.C. which says that on receiving the order of confirmation or other order of the H. C, the Sessions Ct. shall cause the order to be carried out into effect by issuing a warrant or taking other necessary steps. Reference may also be made in this connection to form 34 in Sen. V, Cr. P.C. where the Ses. J. issues the warrant for commitment of a person under sentence of death when he submits the case under Section 374 & to form 35 in the same schedule where the Ses. J. under his signature authorizes the Superintendent of the jail to which the prisoner has been confined to carry out the sentence of death. in my opinion this fact alone distinguishes these submissions from cases referred by Civil & Criminal Cts. to the H. C. for decision.
30. The next important question which goes to the root of the matter is whether when dealing with a submission under Section 374, Cr. P.C. the H. C. is acting on the original or its appellate side. I have already said that in my view the H. C. is in this matter acting on its appellate side, for the main reason that the whole object & function of submissions under Section 374 is to prevent a miscarriage of justice in cases where a person sentenced to death does not choose to appeal for one reason or another. If it was not for that reason, a submission under Section 374 would cease to have any meaning or any use. The words of Article 13 (2) clearly indicate that it is only original pending references that are contemplated by the Order. Prima facie these proceedings in the H. C, are admittedly not on the original side but the learned judges of the Lahore H. C. have observed that on the analogy of the hearing in the H. C. of a case submitted to it under Section 307, Cr. P.C., a Pull Bench of the Calcutta H. C. came to the conclusion that these & analogous provisions are dealt with by the Ct. on the original side. In my opinion the Calcutta case (29 Cal 286), relied upon by the learned Judges is wholly distinguishable & it becomes necessary, therefore, to examine the basis on which that decision rests. In that case a European was accused & tried by a Ses. J. with Jury. The trial Judge disagreed with the verdict of the Jury & the case was submitted to the H. C. under S 307, Cr. P.C. which enacts that in such cases the Judge should submit the case to the H. C. after recording the grounds of his opinion regarding his difference with the verdict of the Jurors, fa when the case has been so submitted, the H. C. may exercise all the powers exercisable on appeal & after considering the entire evidence & after giving due weight to the opinion of the Ses. J., & the Jury proceed either to convict & pass such sentence as could have been passed by the Ses. J. himself, or acquit. It is noticeable here again that the eventual sentence is passed not by the Ses. J. but by the H. C. when dealing with the so called reference. In that case a Division Bench of the H. C. at Calcutta convicted & sentenced the accused to imprisonment & a fine. The prisoner was first sent to the Alipore Jail & subsequently was removed from Alipore to the Presidency Jail in Calcutta. At this stage an application was made for a writ of habeas corpus for his release which was decided by a single Judge of the Calcutta Ct. & against that decision the prisoner appealed & a Pull Bench disposed of this appeal. The main question for decision was whether an appeal in such circumstances was competent. Maclean, C.J. held that the order of the Single Judge amounted to a judgment & therefore an appeal lay. Practically the only basis of his decision is that the Single Judge who rejected the prayer for a writ was then exercising ordinary original criminal jurisdiction & that an application could be properly made to him for a writ because such an application was made in a criminal proceeding or matter & from an order passed by him, on a liberal construction of the Letters Patent, an appeal would lie. When dealing with the argument that the Division Bench hearing the so-called reference under Section 307 was exercising original criminal jurisdiction, the learned Chief Justice observed as follows at p. 297:
It has been urged before us that in the present case the Division Bench of the H. C. was acting in the exercise of its original criminal jurisdiction, & not as a Ct. of Reference in a criminal matter, & that what occurred before the Division Bench was in effect a trial de novo by the H. C. I am unable to accede to this view, having regard to the fact that the case was a reference under Section 307, Cr. P.C. The difference between a judge of the H. C. sitting in the exercise of its original criminal jurisdiction & a Division Bench sitting on a reference under Section 307, in criminal matter is well recognised.
31. It appears to me that far from supporting the contention accepted by the Lahore H. C, the observations of the learned Chief Justice quoted above repel that contention.
32. Ghosh J. in a judgment of concurrence observed that the argument before the Bench was based upon three grounds:
(1) that the Ct. should be regarded as a Ct, exercising original criminal jurisdiction; (2) that the Alipore Jail is beyond its jurisdiction; & (3) that the Alipore Jail is not one of the jails appointed by Govt. under Section 541 of the Code for confinement of European prisoners.' He went on to observe on the first point as follows:
It seems to me that when the reference was from a Ct. subject to its appellate jurisdiction, the simple fact of this Ct. having passed sentence to the case would not convert the Ct. from a Ct. of Reference to one of original jurisdiction. If the contention were correct, it might well be said that a sentence passed by the H, C, while sitting on appeal, against an order of acquittal is also as a Ct. of original jurisdiction - a proposition which is obviously untenable.
33. With the second & third points argued we are not concerned here, but it will be seen that the observations of Ghosh J. also repel the contention accepted by the Lahore H. C. Hill, J. & Brett, J. agreed with the leading judgment by the learned Chief Justice but added nothing on thi9 point themselves. In the concurring judgment of Banerjee, J. from which a quotation has been given by the learned judges of the Lahore H. C. the point was again dealt with. The point that we are concerned with was stated as follows at p. 300:
The questions that, therefore, arise for determination in this case are first, whether an appeal lies from the order of a Single Judge of this Ct. made in the exercise of its ordinary original criminal jurisdiction refusing an application by a prisoner for release from alleged illegal custody under a sentence of imprisonment passed by two other learned judges: second, whether a Division Bench of this Ct. sentencing a person to imprisonment under Section 307, Cr. P.C. has power to send him to a jail outside the Presidency Town of Calcutta; third....
34. On the first question the learned Judge said that an order under Section 491 was a 'judgment' not being a sentence or order passed cr made in any criminal trial & was, therefore, appealable. In dealing with the second question, whether a Division Bench dealing with a case under Section 307, Cr. P.C. could send the prisoner to a jail outside the Presidency Town, the learned Judge observed that
the argument on behalf of the petnr. is shortly this: that the learned Judge, who heard the case under Section 307, Cr. P. C having heard it before the original trial was concluded, must be taken to have heard it as an original criminal case, & to have exercised the original criminal Jurisdiction of this Ct.; & for that reason, as well as by reason of this (Ct. being held in the town of Calcutta, their power of sending the petnr. to jail was limited by the limits of the Presidency Town;....
He went on as follows:
I am of opinion that this argument is altogether unsound. The jurisdiction which this Ct. exercises in hearing a case submitted to it under Section 307, Cr. P.C. is not original jurisdiction in any sense, the hearing not having any of the essentials of an original trial.
Then follows the passage quoted by the learned Judges of the Lahore H. C. which is as follows:
The accused is net brought before this Ct., nor are any witnesses examined before it. It hears the case as a Ct. of Reference, in the exercise of jurisdiction vested in it by Clause 28 of its Charter, which is, by the terms of that clause, co-extensive with its appellate jurisdiction.
35. The last passage quoted even when torn from its context will not yield, in my humble judgment, the meaning which the learned Judges of the Lahore Ct. have extracted from it. The operative passage is the one just above this & there, it appears to me, the opinion is clearly expressed that proceedings under Section 307 are not proceedings which the Ct. takes on its original side in any sense of the term, & therefore far from supporting the contention accepted by the learned Judges of the Lahore High Court the judgment of Banerjee, J. in '29 Cal 286' completely refutes it. I am of. the opinion, therefore, that this case on which the learned Judges at Lahore have relied with such emphasis is either totally distinguishable or completely refutes the contention accepted by them. If an analogy, therefore, is to be drawn from proceedings under Section 307, Cr. P.C., the conclusion should be that analogous proceedings are held in the course of the exercise of a jurisdiction which is certainly not original. This is quite apart from the fact that whether these proceedings can properly fall within the term 'reference', a submission under Section 374, Cr. P.C., can never be termed a reference at all. As 1 have endeavoured to show, such proceedings are not included either in the term 'reference' nor are they original & in this view of the matter Article 13 (2) does not help the applts. in any way.
36. Now we come to another equally vital phase of the question, namely, the examination of the scheme of the legislation which, on the partition of the country, led to some cases being left for disposal in one Dominion & the rest in the other, & also to ascertain what was the intention of the Legislature & to what extent that intention, when ascertained, has a bearing on the interpretation of the language employed by the Legislature.
37. It is the common ground of all parties that by the Indian Independence Act, 1947, Section 1, two Independent Dominions were created as from 15-8-1947 & that the Districts of Karnal & Jullundur, among others, fell within the limits of the Indian Dominion. Section 7 of this Act enacts that as from 15-8-1947, His Majesty's Govt. in the United Kingdom ceased to have any responsibility as respects the Govt. of any of the territories in the Dominion of India. It appears to me to be obvious that from 15-8-1947 India became an independent country & as such could exercise complete sovereign powers in all matters, subject to any specific limitations that may have been duly imposed. It is, therefore, pertinent to enquire what, in law, are the incidents of independence. What the term 'sovereignty of a state' connotes & implies, Oppenheim in his treatise on international law, Vol. I, Edn. 6 (1947), has enumerated & described in Section 123 at p. 254. The learned author has described the position succinctly & correctly & therefore the para, is quoted in extenso below:
Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence upon any other authority & in particular from the authority of another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise Supreme authority over all persons & things within its territory, sovereignty is territorial supremacy (dominium territorial sovereignty). As comprising the power of a State to exercise supreme authority over its citizens at home & abroad, sovereignty is personal supremacy (imperium political sovereignty).
For these reasons a State as an international person possesses independence & territorial & personal supremacy. These three qualities are nothing else than three aspects of the very same sovereignty of a State, & there is no sharp boundary line between them. The distinction is apparent & useful, although internal independence is nothing else than sovereignty comprising in territorial supremacy, but viewed from a different point of view.
Sovereignty thus necessarily connotes (a) internal independence; (b) territorial supremacy; & (c) personal supremacy. It will follow therefore, that as from 15-0-1947 the Cts. in one Dominion would have no jurisdiction & therefore no control over any person resident in another Dominion, subject only to any exception that may be specifically stated. The rights of the Cts. of any state to exercise exclusive jurisdiction over its own nationals are the fundamental rights of an independent state & exclusive jurisdiction of the law Cts. is, therefore, one of the main incidents of independence.
38. Similarly Dr. Schwarzenberger, another eminent jurist, in his treatise, Vol. I, 1945 Edn., at pp. 44 & 45 has dealt with the meaning of sovereignty in International law. He says that both the Permanent Ct of Arbitration & the Permanent Ct. of International justice have given definitions which fully explain the meaning & legal significance of the conception of sovereignty or independence in international law. In quoting the words of the Arbitrator in the 'Palmas csse - between the Netherlands & the United States of America that 'territorial sovereignty is a light with which almost all international relations are bound up', he goes on to quote further that
sovereignty in the relation between States signifies independence. Independence in regard to ft portion of the globe is the right to exercise therein to the exclusion of any other state, the functions of a State....Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty, the obligation to protect within the territory the lights of other States, in particular their right to integrity & inviolability in peace & in war, together with the rights which each State may claim for its nationals in foreign territory.
39. The learned author then goes on to say:
Independence is an essentially negative conception. It implies the absence of an overriding authority & freedom from interference...independence may mean that States have a right under international law to be free from outside interference to the extent to which international law does not limit such freedom. Within these limits of international law, customary & treaty law, States then exercise an exclusive domestic jurisdiction.
40. The learned author concludes this part of the argument by saying that
the term 'exclusive domestic jurisdiction' is but the formulation in positive terms of the traditional conception of State independence or State sovereignty.
41. it seems to be clear to my mind that independence necessarily implies the rights of a State, to exercise to the exclusion of any other State, the functions of the State. The question then immediately arises what are the functions of an independent State.
42. Salmond in his well-known book on Jurisprudence (1947) Edn. 12, Chap. 5, has dealt with the 'Nature & Essential Function of the State'. He says that the difference between a state & other associations such as a church, a university, a joint stock company, or a trade union, is clearly one of function.
'Historically', he goes on, 'the most important operations of Govt. have been two, namely, war & the administration of justice. The fundamental purpose & end of political society has been defence against external enemies, & the maintenance of peaceable & orderly relations within the community itself. It would be easy to show, by a long succession of authorities, that these two have always been recognised as the most important duties of Govts.'
43. The primary functions are thus war & the administration of justice, though the learned author ''visalises a state of society in the future when world differences could be settled without war, but administration of justice must always remain a primary function, He goes on as follows:
Thus, while we can hardly imagine a state that abandons the administration of justice, we can imagine a state that abandons, or finds no need for, an organisation for defending itself against its neighbours. To distinguish a state from other human associations it is probably enough to say simply that the state is an association for maintaining order & justice within its boundaries.
The secondary functions are such as are required to secure the efficient fulfilment of the primary function or functions. These secondary functions are principally legislation & taxation & also the activities of the State in the commercial sphere, such as canals, electricity, posts & railways, or the spread of education, improvement of public health, local self Govt. & the like. These are amongst the minor activities of the state, for he adds that they tend 'to overshadow & -conceal from view the primary function or functions in which the essential nature of the state is to be found.
44. There is thus eminent authority for the view that the administration of justice, even more than the waging of war, is a primary function of the state & this is thus the greatest emblem of sovereignty, & that sovereignty is exercisable in all the territories of the state from which 'it permanently excludes all alien interference.'
45. Having determined that this country was granted independence by the Act of 1947, & having seen what is the nature & the content of independent sovereignty, we are now in a position to examine how the object of the Legislature was implemented & its intention carried into effect. The territorial supremacy, particularly in the sphere of the administration of justice, being the main ingredient of independence, the intention was implemented in this direction by the promulgation of the High Courts Order. Article 5 so far the Punjab is concerned, is the main provision that declares the law & the language is a clear index of the intention of the legislature. This Article is in the following terms:
6. The High Court of East Punjab shall be a Ct. of record, & shall have in respect of the territories for the time being included in the Province of East Punjab & in the Province of Delhi, all such original appellate & other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the H. C. at Lahore.
46. It will be seen that all original & other jurisdiction is given to the East Punjab H. C. In other words, the transfer of jurisdiction is complete except for any exceptions that may be engrafted later. On the main enactment, exceptions have been engrafted by Article 13 but it is important to remember that all residuary jurisdiction is in the East Punjab H. C. & any exceptions have to be construed very strictly according to all well recognised canons of interpretation. The result will, in my opinion, be that when plenary jurisdiction is given to the East Punjab H. C. in regard to territories over which it has way, only that class of cases will be left within the jurisdiction of the Lahore H. C. which have been expressly left to be dealt with by that Ct. The principle is that when an independent superior Ct. has been created in an independent Dominion, restrictions on the jurisdiction of that Ct. cannot be presumed.
47. With this Background we can now proceed to examine the exceptions that have been engrafted on the main enactment. As I have said already, these are contained in Article 13. Sub-section (1) is declaratory of the general position which says that subject to what follows the H. C. at Lahore shall cease to have any power to exercise jurisdiction in the territories included in the Province of East Punjab & the Province of Delhi.
48. Sub-section (2) contains the exceptions & is divided into three Sub-clauses Sub-clause (a) excepts proceedings pending before the 15th of August, on the original side including any proceedings then pending as a Ct. of reference.
49. I have already indicated that in my view proceedings for confirmation of sentence are not original in any sense & that the word 'original' includes only those proceedings which were initiated in the H. C, such as Income Tax references & references under the Court Fees Act.
50. I have also shown that in dealing with submissions under Section 374, Cr. P.C. the H. C. is not acting as a Ct. of reference, even though such submissions are popularly, though wrongly, so called, possibly because in the popular mind the changes effected by the wording in the Code since 1872 have been ignored.
51. Sub-clause (b) deals with Letters Patent Appeals with which we are not concerned here. Sub-clause (c) deals with powers of review with which again we are not concerned. Sub-section (3) again declares the general legal position that all appellate proceedings, where the Ct. of origin is the territories of Delhi & East Punjab, are transferred automatically to the East Punjab High Court. Emphasis has been laid on the words 'subject to the preceding provisions of this Article', but the argument can only be entertained if my interpretation of Sub-clause (a) be held to be incorrect. In view of the intention of the Legislature to give plenary jurisdiction to the East Punjab High Court it would be doing violence to all canons of interpretation to hold that though all appellate proceedings stand transferred, some are allowed to remain in Lahore by inference. Here again, it seems to me , with very great respect, that the learned Judges of the Lahore H. C. have made a fundamental error in assuming that the intention of the legislature was to leave residuary jurisdiction with the Lahore H. C, & in construing exceptions in the main provisions liberally & thus presuming absence of jurisdiction in an independent superior Ct. If the intention of the Legislature was, what I have stated it clearly was, then it follows necessarily that Article 13 (3) lays down the general rule that all appellate proceedings, where the Ct. of origin is in a place within the territories of East Punjab & of Delhi, cannot be dealt with at Lahore except possibly Letters Patent Appeals from orders of a Single Judge sitting on the original side, such as for instance decisions in matrimonial cases. In this view of the matter the position taken up by Mr. Sawhney was more logical when he said that though murder references so called were left to be dealt with at Lahore the connected appeals could only be heard & decided by the East Punjab H. C. On the first part of his submission, he was clearly wrong in making the assumption that submissions under Section 374 were included in the word 'reference'. (55) If all appeals have been transferred automatically, we cannot assume on the wording of the Article that by inference some appeals have been excluded because this would lead to possibly divergent decisions on the same set of facts by two superior Cts. In this connection it is important to note that the decision of the appeal must also precede the disposal of the so called reference, & where there is an appeal, the decision of the appeal automatically decides the so called reference. The inconvenient result envisaged by the learned Judges of the Lahore H. C. would only be possible if the decision of the appeal was taken away in such cases from the East Punjab H. C & handed over to the Ct. at Lahore.
53. Sub-sections (4) & (5) only say that the cider of the Ct. which has been given the final power of decision shall be deemed to be an order by both Cts. to avoid the argument by a party that if an appeal was instituted in one Ct,, another Ct. could not give decision on it.
54. In this aspect of the matter it appears to me to be clear that not only the submissions under Section 374 for the confirmation of sentences of death but also the connected appeals filed by such convicts, can only be heard & decided by the East Punjab H. C. when the Ct. of origin is in a place situate in the territories within the jurisdiction of the East Punjab Ct. It seems to me clear, therefore, that the intention of the Legislature was to grant jurisdiction on a territorial basis & if this be the intention, then all those authorities of the English Cts. to which reference has been made by the learned Judges of the Lahore H. C. forcibly support my contention. If it were necessary, which I consider it is not, it would be open to the Cts. to strain the language to give effect to this intention of the Legislature, it appears to me that the learned Judges of the Lahore H. C. have made some erroneous assumptions & have arrived at the conclusion that the intention of the Legislature was what it clearly was not according to my judgment & they have strained the language of the Legislature to an extent which is not permissible to give effect to that presumed intention
54a. In cases of appeals by co-convicts sentenced to transportation for life in whose case notice of enhancement has been served, the learned Judges of the Lahore H. C. appear to me to be on weaker ground still. The argument based on convenience is always a dangerous one in interpreting a statute The learned Judges agree that but for the fact that these appeals are connected with the so called murder references, they should be left to the decision of the Lahore H. C. to avoid a conflict of decisions on the same set of facts. In construing the language of the statute in an ordinary straightforward manner, there is no provision for the retention of these appeals. It is said that as notice of enhancement was issued, it gave jurisdiction to the H. C. at Lahore which otherwise It had not. If this be a correct method of approach, then it would be open to any complainant to confer jurisdiction on the Lahore H. C. by putting in a revision petition for enhancement in any case whatsoever. When notice issues, Section 439 of the Cr. P.C. comes into play & under the provisions of that section the revisional Ct. can exercise all the powers of an appellate Ct. The learned Judges say that there is no provision for the transfer of revision petns. If that be so, then on their reasoning every kind of criminal revision instituted before 15-8-1947 could only be disposed of by the Lahore H. C. because within the four corners of the High Courts (Punjab) Order, 1947, there is no provision for the transfer of revision petns. This ignores altogether the provisions of Article 5 of that Order where what is taken away from the Lahore H. C. & is expressly granted to the East Punjab H. C. is 'all such original, appellate & other jurisdiction', or, in other words, all plenary jurisdiction subject to exceptions which are to be found in a later portion of that Order, namely Article 13, Sub-section (2). This argument is quite independent & apart from any argument based on Sub-section (6) of Section 439, Cr. P.C.
55. I am clearly of the opinion, therefore, that the answer to both the questions propounded by the D. B. should be in the negative.
56. I would, therefore, remit the case back to the D. B. for disposal in the light of these findings.
57. I find myself so completely in agreement with what my Lord the Chief Justice has said that it is not really necessary for me to record a separate judgment of my own. I would like, however, to make a few observations in regard to the spirit & intention of the High Courts (Punjab) Order, 1947.
58. In 1935 the unity of India was taken for granted all over the world. In 1947 partition became an accomplished fact. On the 15th August India was split up into the dominions of India & Pakistan & these two dominions became independent sovereign states. They could exercise complete sovereign powers in all matters, subject to such limitations as were imposed by the Indian Independence Act or by the Orders made under the provisions of the said Act. The marks of an independent state are that It possesses a defined territory & is free to order its own affairs without interference on the part of any other state. It has supreme authority or jurisdiction to control all persons & property within the boundaries of its territorial domain. Sovereign power over the life & property of persons carries with it corresponding obligations to protect those persons from exterior & interior coercive action & to provide legal machinery for the decision of their domestic disputes.
59. The High Courts (Punjab) Order, 1947, has been promulgated in pursuance of the principle that an independent state is at liberty to manage its own affairs & to constitute its own tribunals. It is designed to provide for the administration of justice in the Provinces of Eastern Punjab & Delhi & for the trial of cases relating those Provinces. Article 3 constitutes & erects a H. C. of Judicature for the Provinces of East Punjab & Delhi Article 5 declares that in respect of the territories for the time being included in these two Provinces, the H. C. of East Punjab shall have all such original, appellate & other jurisdiction as, under the law in force immediately before 15-8-1947, was exercisable in respect of the said territories by the H. C. at Lahore. Article 13 (1) divests the H. C. at Lahore of its jurisdiction in respect of the territories included in the Provinces of East Punjab & Delhi. These provisions make it quite clear that with effect from 15-8-1947 the H. C. of Eastern Punjab is to exercise jurisdiction of all kinds in respect of the territories of East Punjab & Delhi & that with effect from the said date the H. C. at Lahore ceased to exercise all such Jurisdiction.
60. These provisions were simple enough & left no room for doubt that all classes of cases relating to the Eastern Punjab & Delhi which were already pending in the H. C. at Lahore or which were to be instituted after the transfer of power were to be dealt with by the H. C. of East Punjab. The spirit & intention of the Order was to confer full & exclusive powers on the H. C. of East Punjab to exercise jurisdiction in respect of cases arising out of the territories situated in the East Punjab & Delhi. The transfer of pending cases was likely to occasion a certain amount of administrative inconvenience & the Governor General accordingly directed that notwithstanding anything contained in the Order of 1947 the cases & appeals specified in Sub-article (2) of Article 13 were to be dealt with by the H. C. at Lahore. He directed, for example, that all proceedings which were pending in the H. C. at Lahore on its original side, including any proceedings which were pending in the said H. C. as a Ct. of reference shall be heard & determined by that Ct. This direction is in the nature of a proviso appended to Article 5 & 13(1) & constitutes a departure from the principle enunciated in the said articles that the H. C. of East Punjab alone could deal with cases arising out of the territories situate in the East Punjab In other words, this direction creates a new jurisdiction by declaring that a certain type of cases which ought normally to have been dealt with by the H. C. of East Punjab should be disposed of by the H, C. at Lahore. It is a fundamental rule in the construction of statutes That enactments which create new jurisdiction or delegate subordinate legislative or other powers should be strictly construed. As pointed out by Maxwell in his admirable treatise on the Interpretation of Statutes, the rule of strict construction does not allow the imposition of a restricted meaning on the words, wherever any doubt can be suggested, to withdraw from the operation of the statute a case which falls both within its scope & the fair sense of its language. This would be to defeat, not to promote, the object of the Legislature. The rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms & within the spirit & scope of the enactment.
61. My Lord the Chief Justice has given detailed & convincing reasons for holding (a) that a H. C. dealing with a submission under Section 374, Cr. P.C. is acting on the appellate & not on the original side; & (b) that a submission under Section 374 can never be deemed to be a 'reference' even though it is popularly designated as such. I agree with him that submissions of this kind do not fall within the ambit of Clause (a) of Sub-article (2) of Article 13 even though they were pending in the H. C. at Lahore immediately before 15-8-1947. In no case can they be said to fall within the reasonable meaning of the terms of Clause (a) or within the spirit & scope of the High Courts (Punjab) Order, 1947. In accordance with the recognised principles of interpretation these submissions in so far as they relate to offences committed within the territories of East Punjab or Delhi, must be dealt with by a H. C. of East Punjab. This conclusion receives a certain amount of support from the language of Article 13 (3) which is in the following terms:
(3) Subject to the preceding provisions of this Article, all proceedings pending on the appellate side of the H. C. at Lahore immediately before the appointed day, shall, where the Ct. of origin is as from that day, situated in the Province of East Punjab or in the Province of Delhi, stand transferred by virtue of this Order to the H. C. of East Punjab.
The framers of the High Courts (Punjab) Order, 1947, could not have contemplated that an appeal pre-texted by a convict in a murder case should be heard by the H. C. of East Punjab & that a submission for the confirmation of the death sentence in the same case should be heard by the H. C. at Lahore.
62. For these reasons, I am of the opinion that both the questions referred to the F.B. should be answered in the negative.
Achhru Ram, J.
63. I am in full agreement with the answers which my Lord Chief Justice proposes to give to the questions referred to this Bench.
64. I should always feel great hesitation in differing from Dr. Sir Abdul Rahman. I have, accordingly given my most careful thought to the views expressed by him in this judgment in Criminal Msc. No. 75 (W) of 1947. However, after as respectful a consideration of those views as any pronouncement of His Lordship must always deserve I have felt constrained to reach the conclusion that his decision, with which Marten, J. concurred, as to the H. C. of Lahore being the only Ct. having jurisdiction, in cases of which the records had been submitted to that Ct. as required by Section 374, Cr. P.C. before 15-8-1947, to confirm sentences of death passed by Cts. exercising jurisdiction within territories now constituting the Province of East Punjab, & the Province of Delhi, & to hear appeals from such sentences, or petns. for revision of any portion or portions of the orders passing such sentences, is not correct & that interpretation placed by him on the relevant provisions of the High Courts (Punjab) Order, 1947, is erroneous. It is a great pity that the learned Advocate General of the West Punjab as well as the learned counsel who was asked by the Bench of the H. C. of Lahore to assist it as an amicus curiae chose not to render any assistance, & addressed no arguments at the bar. For the good name of the profession to which I myself have the honour to belong, & the great traditions which the profession has built up for itself in all parts of the civilised world, I hope that this attitude of those learned gentlemen was only due to their inability to find time, on account of their other pre-occupations, to study the subject, & not to any disinclination on their part to assist the Ct. in arriving at a correct conclusion, or to a deliberate desire to have the contention of the petnrs' counsel accepted. I should not be understood to say that the failure of the learned Advocate General who is paid by the State exchequer for doing the Job, & of the other learned counsel who had accepted the position of an amicus curiae a position which has always been regarded by the profession as one of great privilege & distinction to find time for a proper study of the difficult & important question, which might have inter-dominion repurcussions, & to a correct decision whereof their assistance had been sought by the Bench, could be said to be either excusable or Justifiable, whatever the reasons for such failure might have been. All I mean is that a disinclination to assist the Ct, or a deliberate desire to have the contention advanced on behalf of the petnrs,, accepted would be so reprehensible a breach of professional ethics that I should hesitate very much to ascribe the same to gentlemen for whom I have had respect.
65. As compared with our brothers of the Lahore H. C., we were far more fortunate, inasmuch as, while the case for the Crown was argued before us by the learned Advocate General with great ability, we had also on the other side, the advantage not only of very elaborate & cerefully prepared arguments by Mr. Gurdev Singh, who was the counsel engaged by the Crown on behalf of the convict, & by Mr. Dev Raj Sawhney, President of the H. C. Bar Association who had at our request, very kindly agreed to act as an amicus curiae, but also of hearing Mr. Saleem who represented the petnrs. in 'Cr. Misc. 75 of 1947' at Lahore & who, as luck would have it, happened to come here in connection with another case, while we were yet hearing this reference, & very kindly saw his way to accede to our request to address us in support of the view taken by the H. C. of Lahore in the case mentioned above. We are very much beholden to all these gentlemen, & more particularly to Mr. Saleem, for the very valuable assistance that we received from them.
66. As a result of the enactment by the British Parliament of 10 & 11 Geo. 6 Ch. 30 (the Indian Independence Act), British India was to be split up into two independent sovereign dominions with effect from 15-8-1947. Independence necessarily carries with it the right to exercise, to the exclusion of any other State, the functions of a State, including administration of justice which, according to all well recognised works- on jurisprudence, is one of the primary functions of a State. The inevitable result of the splitting up of the country into two independent dominions would have been to divest, as from 15-8-1947, the Cts. of Justice situate within the territorial limits of one dominion, of all Jurisdiction over, & in respect of, the territories included within the other dominion. By Section 9 of the aforesaid Act the Governor General of India was given very wide powers to promulgate orders for the implementation of the provisions of the Independence Act. It was in the exercise of these powers that the High Courts (Punjab) Order of 1947 was promulgated on 11-8-1947.
67. By means of this Order a new H. C. was created for the territories included in the Provinces of the East Punjab & Delhi. By Clause 5 of the Order, this new Ct. was vested with all such original, appellate & other jurisdiction as, under the law in force immediately before 15-8-1947, was exercisable in respect of the said territories by the H. C. of Lahore. Had the matter rested there, & the Order had contained no other provision touching the jurisdiction of the two H. Cs. viz. the H. C. of East Punjab & the H. C of Lahore, the result would have been that, while the H. C. of Lahore would have been automatically & as a necessary corollary of the creation of two separate independent & sovereign States divested, as from 15-8-1947, of the jurisdiction to deal with all legal proceedings, whether then pending or instituted thereafter, in respect of properties situate within the territories of East Punjab & Delhi, & over persons residing within those territories in respect of offences committed or causes of action accruing within such territories, such jurisdiction would have passed to the H. C. of East Punjab.. However, presumably out of considerations of practical convenience, it was felt to be necessary to preserve the jurisdiction of the H. C. of Lahore, & to limit that of the New H. C, in certain matters. Clause 13 of the Order which has been quoted in extenso in the judgment of my Lord the Chief Justice seems to have been included in the order for this purpose, The answer to the questions which form the subject matter of the present reference depends upon the interpretation of this clause.
68. The first Sub-clause of Clause 13, gives legislative recognition to a result necessarily implicit in the inclusion of the provinces of East Punjab & Delhi in a separate independent Dominion, subject however to certain exceptions mentioned in some of the following Sub-clauses. It is obvious that unless a case, over which the H. C. of Lahore, both under the general law & under Clause 13 (1) of the High Courts (Punjab) Order, ceased to have any jurisdiction from 15-8-1947, is, clearly & unambiguously, shown to fall within the four corners of any of these exceptions, it must be held that the H. C. of East Punjab alone has jurisdiction to deal with it. I regret to have to say that this 'principle was not kept in mind by the Bench of the H. C. of Lahore which dealt with 'Cr. Misc. 75 of 1947'. The Bench, if I may say so with respect, approached the consideration of the case from a wholly erroneous point of view in assuming that, unless the H. C. of East Punjab could be shown to have been vested, by the High Courts (Punjab) Order, either expressly or by necessary implication, with jurisdiction to hear & dispose of the appeal from, & the petn. for revision of the order of the learned Ses. J. of Karnal dated 26-2-1947, filed before & pending on 15-8-1947, & to confirm the sentence of death in case of the failure of the appeal impugning the correctness of that sentence, the H. C. of Lahore should be deemed to continue, even after 15-8-1947, to be seized of the case & to be competent to hear & dispose of the same.
69. The main question requiring consideration in the present case is whether the H. C. of Lahore retained the jurisdiction to confirm sentences of death passed by Courts situate within the territories which now constitute the province of East Punjab & Delhi, before 15-8-1947, of which the proceedings had been submitted to that Ct, under Section 374, Cr. P.C. The general tenor of the-Judgment of the D. B. of the H. C. of Lahore in 'Cr. Mis. 75 of 1947' shows that, had it not been for their view as to the said H. C. alone being competent to confirm the sentence of death in a case of the above description, the learned Judges constituting the Bench would have had no difficulty in holding the appeal filed by the convict from the sentence of death passed on him to be cognizable by the H. C. of East Punjab. Mr. Sawhney who argued the case for the applt. as an amicus curiae felt, towards the end of his address, compelled to take up the position that the H. C. of Lahore could not, after 15-8-1947, hear an appeal filed before that date from a sentence of death passed by a Ct. situate in the Provinces of East Punjab & Delhi, that such an appeal had to be heard & disposed of by the H. C. of East; Punjab, but that the aforesaid Ct., being incompetent to confirm the sentence, should, after the disposal of the appeal, transmit the record, in case it dismisses the appeal to the H. C. of Lahore, which, being bound by the order of East Punjab H. C, passed in appeal, by reason of the provisions of Sub-clause (5) of Clause 13 of High Courts (Punjab) Order, would ha?e no alternative but to confirm the sentence. Mr. Sleem confined his arguments only to a case where no appeal had been filed by the convict & the only proceedings pending in H. C. were those initiated by the submission of the record by the Ses. J. under Section 374. I understood him to concede that the H. C. of Lahore retained no jurisdiction, after 15-8-1947 to hear appeals filed before that date from orders of the Cts. situate in East Punjab & Delhi Provinces, & that in the event of a convict having filed an appeal, the proceedings for the confirmation of the sentence of death were to be treated as an appendage to the appeal which had to be disposed, of by the H. C. of East Punjab along with the appeal. He evidently found it impossible to support the view taken by the H. C. of Lahore that in such circumstances the appeal was to be treated as an appendage to the proceedings for the confirmation of the sentence.
70. The crucial question in the case is whether the proceedings for the confirmation of a sentence of death can be said to be proceedings pending in the H. C. as a Ct. of reference within the meaning of Clause 13 (2)(a) of the High Courts (Punjab) Order. In other words the question is whether in confirming a sentence of death on proceedings being submitted to it by a Ct. of Session under Section 374, Cr. P.C. a H. C. acts as a Ct. of reference.
71. The expressions 'reference' or 'Court of reference' have not been defined either in the Interpretation Act or in the General Clauses Act, or, for the matter of that, in any other Act, although a number of Acts do contain provisions for reference of disputed questions to the H. C. under certain circumstances. In all the well-known dictionaries the word 'reference', when used in a legal context, has been stated to connote the act of referring a matter in dispute to some person or authority for decision. In 'The Law Lexicon of British India' compiled by Ramanatha Aiyar, 'Reference' has been stated to mean the sending of a pending cause, or some question therein, by the Ct. in which it is pending to a private person or to some other tribunal to hear & determine the cause or the question.
72. In all Acts of the Indian Legislature wherever provision is made for reference to the H. C. by a Ct. subordinate thereto, it is invariably a provision for reference of a disputed question for decision by the former.
73. In the Civil P.C. Order 46 deals with references. R. 1 of the aforesaid Order provides for reference to the H. C. for decision of any question of law or usage having the force of law which arises in a suit or appeal in which the decree is not subject to appeal, or in the execution of a non-appealable decree, on which the Ct. trying the suit or appeal or executing the decree entertains reasonable doubt. R. 6 provides for reference to the H. C. for decision of the question whether a suit is or is not cognizable by a Ct. of Small Causes, where the Ct. in which the suit has been instituted is in doubt on the subject. R. 7 provides for reference by a Dist. Ct. to the H. C for decision of a similar question where it appears to such Ct. that a Ct. subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Ct. of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested.
74. In the Punjab Tenancy Act, provision is made in Section 99 for reference by a Revenue Ct. to the H. C. for decision of the question whether a suit pending before it is cognizable by a Civil or by a Revenue Ct., where such Ct. itself entertains a doubt on the subject. In the same Act provision is made in Section 100 for reference by an appellate Civil or Revenue Ct. to the High Court, where such appellate Ct. on hearing an appeal sees reason to believe that the subordinate Ct. has, in deciding the case, assumed jurisdiction not vested in it & has determined a cause which was not cognizable by it. On such reference the H. C. is to decide not only the question of jurisdiction but also the question whether, in case the Ct. from whose decision the appeal had been taken to the referring Ct. had in fact exercised jurisdiction not vested in it, the decree appealed from should not be registered as one passed by a Ct. having jurisdiction to hear the cause.
75. In the Indian Stamp Act, Section 57 provides for reference to the H. C. by the Chief Controlling Revenue Authority in case of doubt as to the amount of the duty payable on any instrument, while Section 60 provides for a similar reference by any Court.
76. In the Criminal P.C. references are primarily dealt with in Chap. XXXII which is headed 'References & Revisions'. In this Chapter, Section 432 provides for reference to the H. C. by a Presidency Magistrate of any question of law arising in the hearing of a case pending before him. Section 434 of this Chapter, provides for reference by a single Judge of a H. C. of any question of law arising in the course of an original criminal trial. Outside Chap. XXXII, provision for reference to the H. C. by subordinate criminal courts is to be found in two sections viz., Ss. 123 (2) & 307. Under Section 123 (2), when a person who has been ordered by a Presidency Magistrate to furnish security, under Section 106 or Section 118, Cr. P.C. for a period of more than one year fails to do so, the Mag. is required to detain him in prison and to refer to the High Court the question as to the period for which he is to be kept in detention. Under Section 307, a Ses. J. disagreeing with the verdict of the jury, in case of a jury trial, is required to submit the case to the H. C. without recording judgment of acquittal or conviction on any of the charges.
77. Under Section 3 (7), Extradition Act, Govt. of India or any local Govt. can refer to the H. C. for decision any important question of law raised by the opinion or the written statement mentioned in the preceding clauses of the section.
78. Under the Income Tax Act, questions of law arising out of the order of the Assistant Commr. of Income Tax or of the appellate Tribunal may be referred to the H. C. for decision.
79. In all the instances mentioned above, the referring Ct. or authority does not, & cannot, give any decision regarding the case or the question referred to the H. C, although in some cases such Ct. or authority may submit a statement of its own opinion along with the reference. In every case it is the H. C. which is invested with the power to give a decision. In spite of our repeated requests, neither Mr. Gurdev Singh, nor Mr. Sawhney, nor Mr. Sleem were able to draw our attention to any provision anywhere for reference to the H. C. by any Ct. or other authority of any question or case after having itself decided such question or case, the function of the H. C. being merely either to confirm or to refuse to confirm such decision. I consider a reference of this kind to be wholly inconceivable because it would run counter to the well-recognized & generally accepted connotation of the word 'reference' as used in legal phraseology.
80. Under Section 374, Cr. P.C. a Ses. J. does not refer a disputed point or case to the H. C. for decision. He himself decides the case &, in case of the conviction of the accused, himself passes the sentence. However, where the sentence passed by him is one of death he is required to submit the proceedings to the H. C. & the sentence is not to be executed unless it has been confirmed by that Ct. I fail to see how the H. C, while considering whether or not the sentence should be confirmed, can be said to be acting as a Ct. of Reference.
81. Strictly speaking, a H. C. may be said to be acting as such a Ct. on the criminal side only while dealing with references made under Chap. XXXII, Cr. P.C. because it is only that Chapter which expressly purports to provide for references. However even if the word 'reference' in the phrase 'Ct. of Reference' is deemed to have been used in its widest, & not merely technical sense, its scope cannot be extended beyond cases in which the Ct, has to deal with & decide disputed questions or cases referred to it by a subordinate Ct. for decision. The H, C. cannot, therefore, by any stretch of imagination, be regarded as a Ct. of Reference while dealing with a murder case in which a Ses. J., having passed death sentence on the accused, has submitted the proceedings to it for confirmation of the sentence.
82. I am fortified in the above view by the elucidation in Article 21 of the Letters Patent of the powers conferred on the H. C. as a Ct. of Reference. After reciting that the said Ct. shall be a Ct. of reference & revision from the Criminal Cts. subject to its appellate jurisdiction, the Article goes on to explain the nature & the extent of the powers conferred on it as such Ct. With reference to its powers while functioning as a Ct. of Reference it says:
shall have power to hear & determine all such cases referred to it by the Ses. JJ. or by any other officers in the Provinces of Punjab & Delhi who were immediately before the publication of these presents authorised to refer cases to the Chief Ct. of the Punjab.
Accordingly, under the Letters Patent, the H. C. can function as a Ct. of Reference only where a case has been referred to it for being heard & determined, & not where the case has already been heard & determined by the subordinate Ct. & the proceedings of such case are submitted to it for confirmation of the order passed by it. The mere circumstance that in considering whether or not to confirm the order, it also possesses the power to set aside or modify the order can possibly make no difference and cannot constitute the submission of the proceedings of a decided case a reference of the case itself.
83. The Cr. P.C. in Section 517 provides for the disposal, after the conclusion of an enquiry or trial in any Criminal Ct., of any property or document produced before, or in the custody of, such Ct., or regarding which any offence has been committed, or which has been used for the commission of any offence, the said Ct. being given the power to make such order as it thinks fit. Section 518 provides that in lieu of itself passing an order in respect of such property, the Ct. may direct the same to be delivered to the Dist Mag. or to a Sub-Divisional Mag. who shall, in such cases, deal with it as if it had been seized by the police & the seizure had been reported to him in the manner mentioned elsewhere in the Code. Section 519 provides for payment to a bona fide purchaser of stolen property of a sum not exceeding the price paid by such purchaser, out of any money taken at the time of his arrest, out of the possession of any person arrested on a charge of having stolen such property, or of having received such property knowing or having reason to believe the same to be stolen, & eventually convicted of such offence or any offence including such offence, Section 520 empowers 'any Ct. of appeal, confirmation, reference, or revision' to stay the execution of any order made under any of the three preceding sections pending consideration by such Ct., & to modify, alter, or annul such order & make any further orders that may be Just. Except in proceedings submitted to the H. C. under Section 374 of the Code, I am not aware of any proceedings in which a Criminal Ct. may be said to be acting as a Ct. of confirmation.
84. It can, therefore, be postulated with reasonable certainty that the reference in Section 520 to a Ct. of confirmation is reference to a H. C. dealing with the proceedings so submitted to it. The circumstance that in the section a Ct. of Confirmation & a Ct. of Reference have been separately mentioned should leave no doubt in one's mind as to the unsoundness of the proposition that the H. C. acts as a Ct. of Reference in dealing with such proceedings.
85. It is true that in Article 20 & 21, Letters Patent, by which the H. C. of Lahore was established, the said H. C. has, in relation to criminal jurisdiction, been described only as a Ct. of appeal, a Ct. of Reference, & a Ct. of Revision. That, however, does not imply that, in the exercise of its criminal jurisdiction, the H. C. of Lahore could function only as a Ct of appeal, Reference, & Revision & could not exercise the other powers conferred on the H. Cs. generally by the Cr. P. C or any other Acts for the time being in force. In assuming Article 20 & 21, Letters Patent, to be exhaustive, the Bench of the Lahore H. C. completely overlooked the provisions of Article 37 which expressly made the Letters Patent subject to the legislative powers of the Governor-General in Legislative Council & also of the Governor in Council. On his attention being drawn to this Article, Mr. Sleem, with his characteristic frankness, at once conceded that Article 20 & 21 could not be regarded as exhaustive. Mr, Sawhneyt however, did contend that what had been saved by Article 37 was Acts of the Indian Legislature affecting the powers & jurisdiction of the H. Cs., to be passed after the publication of the Letters Patent. According to him, all provisions relating to the powers & the jurisdiction of H. Cs., contained in enactments that were in force at the time of such publication, had been abrogated, in so far as the H. C. of Lahore was concerned, by the Letters Patent which, he maintained, must be held to contain an exhaustive statement of the powers of the said Ct as existing on the day they were published. I, however, see no reason to place such a restricted interpretation on the Article. As I read it, the Article made the Letters Patent subject to the legislative powers of the Indian Legislature, whether exercised in the past or in the future. If Article 37 is interpreted in the manner suggested by Mr. Sawhney, & it is held that the Letters Patent were intended to contain an exhaustive statement of the powers of the H. C. of Lahore unless subsequently extended by any Act of the Indian Legislature passed after their publication, & to take away any other powers that were exercisable by the H. Cs. generally before their publication, it will have to be held that the said H. C. has, in the exercise of its civil jurisdiction, been erroneously exercising powers of review, reference & revision & has also been wrongly assuming jurisdiction in insolvency cases. Article 9 to 12 & 24 & 25 which are the only Articles dealing with its civil jurisdiction do not purport to confer on it any of the above powers. Similarly it must be held to have been acting, in the exercise of its criminal jurisdiction, in excess of its legal powers in all cases in which it has taken action under Section 561 A. This section reserves to the H. C. its inherent power to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Ct., or otherwise to secure the ends of justice. The H. C of Lahore has been making orders for stay of proceedings in subordinate criminal Cts., for expunging objectionable remarks from the judgments of such Cts., & a variety of other orders, under these powers. These orders cannot be said to have been made in the exercise of either appellate or revisional jurisdiction or jurisdiction vesting in it as a Ct, of Reference.
86. Another instance in which a H. C. may pass an order in passing which it cannot be said to exercise any of these three kinds of Jurisdiction is when it, under Section 382, Criminal P.C., commutes a death sentence passed on a pregnant woman into one of transportation for life.
87. These provisions existed in the Code before the publication of the Letters Patent of the H. C. of Lahore, & if Mr. Sawhney's interpretation of Article 37 of the said Letters Patent is accepted as correct, it will have to be held that the said H. C. had no jurisdiction to take action under these sections & several other sections of the Cr. P.C. which confer on H. Cs. powers which cannot, by any stretch of imagination, be held to fall within any of the three classes of powers mentioned in Article 20 & 21.
88. Much stress has been laid by the H. C. of Lahore on the circumstance that all references to a H. C. provided for in Chap. XXXII, Cr. P.C. are references by a Presidency Magistrate. It is pointed out that Lahore not being a Presidency Town, & therefore the possibility of a reference to the H. C. of Lahore under the provisions of the aforesaid Chapter of the Cr. P.C. being excluded, there could be no occasion for the said H. C. to act as a Ct. of Reference in the exercise of its criminal jurisdiction, if the word reference in Article 21 be held to connote only a reference under the aforesaid Chapter. It is urged that in the circumstances there could be no point in declaring it to be a Ct. of Reference. The Letters Patent of the Lahore H. C. appear to have been drawn up on the model of the Letters Patent by which the H. Cs. in three Presidency Towns of Calcutta, Bombay & Madras had been created, & Article 21 of the former is almost a verbatim reproduction of Article 28 of the latter. It may well be that in Article 21 the Lahore Ct. was referred to as a Ct. of reference just mechanically, on account of that expression occurring in Article 28 of the document which was being used as its model, & without averting to the question whether there would ever be any occasion for the new-born Ct. to act as a Ct. of Reference. In any case the argument which has found favour with the Lahore Ct. may be a good argument for holding that references under Chap. XXXII are not the only references which a H. C. deals with as a Ct. of Reference in the exercise of its criminal jurisdiction & that it must be deemed to be functioning as a Ct. of Reference even when hearing a case referred to it outside the provisions of the aforesaid Chapter, but it can be no argument at all for extending the natural & accepted connotation of the word 'reference' & for including within its scope what otherwise cannot at all be called a reference. There are other provisions in the Cr. P.C. under which a Ct. other than that of a Presidency Magistrate can refer a case to the H. C. & under which, therefore, a reference to the H. C. of Lahore is possible. Reference under Section 307 in case of the Ses. J. disagreeing with the verdict of the jury is a case in point.
89. Stress has also been laid by the Lahore Ct. on the circumstance that under the provisions of Sub-clause (3) of Clause 13, High Courts (Punjab) Order, it is only proceedings pending on the appellate side of the H. C. at Lahore immediately before 15-8-1947, in cases where the Cts. of origin were situate within the territories now forming part of the Province of East Punjab & the province of Delhi, that are to be deemed to have been transferred to the H. C. of East Punjab & it has been held that, in view of the aforesaid provisions, that H. C. cannot be said to be seized of any other proceedings pending in the Lahore Ct. immediately before 15-8-1947. The proceedings submitted to the H. C. under Section 374, Cr. P.C. for confirmation of death sentence not being, in the view of the Lahore Ct., proceedings on the appellate side of the H. C, it has been held that in all cases in which such proceedings had been received by that Ct. before 15-8-1947, it is that Ct. alone which can confirm or refuse to confirm the sentence, & that the H. C. of East Punjab, not being seized of such proceedings, cannot pass any order respecting them.
90. If the view that I have taken of the interpretation to be placed on Clause 13 (2)(a), High Courts (Punjab) Order is correct, & proceedings for the confirmation of death sentence are not to be regarded as proceedings of which a H. C. can be said to be seized as a Ct of Reference, it is obvious that, whether or not such proceedings pending in the H. C. of Lahore before 15-8-1947 can be deemed to stand transferred to the H. C. of East Punjab' in cases where the Ct. of origin was situate within territories which now form the Province of East Punjab, or in Delhi Province, the H. C. of Lahore can have no jurisdiction, as from the 15th August, to deal with such proceedings. The combined effect of Clause 5 & Clause 13 (1) is to oust, with effect from the aforesaid date, the jurisdiction of the H. C. of Lahore in respect of the territories included in the Provinces of East Punjab & Delhi, except in relation to proceedings enumerated in Clause 13 (2)(a) & (b), & to confer such jurisdiction on the H. C. of East Punjab. Accordingly, as from 15-8-1947, the latter must be held to be the only Ct. competent to confirm the sentence of death passed by a Sessions Ct. situate within the aforesaid territories, even where such Ct. has submitted the proceedings to the H. C. of Lahore before that date.
91. The jurisdiction of the H. C. of East Punjab to deal with & dispose of such proceedings cannot be said to have been ousted or otherwise prejudicially affected by reason of Clause 13 (3) merely providing for proceedings pending in the H. C. of Lahore on the appellate side standing transferred to the H. C. of East Punjab. The words 'proceedings pending on the appellate side' do not appear to have been used in the aforesaid Sub-clause in. their technical sense as connoting proceedings consequent upon the institution of an appeal as provided in Cr. P.C. but in a wider sense as connoting proceedings by which a cause has been brought from an inferior to a superior Ct. for re-examination & re-hearing i.e., proceedings contradistinguished from those in which the Ct. exercises original jurisdiction.
91a. In 'Westbury v. Sillem' 83 LTEx 209 an appeal has been described as entering a superior Ct. & invoking its aid & interposition to redress the error of the Ct. below. At p. 308 of Vol. I of the Oxford Dictionary 'appeal' has been defined as the transference of a case from an inferior to a higher Ct. or tribunal in the hope of reversing or modifying the decision of the former. In Sweet's Law Dictionary, the term 'appeal' is defined as a proceeding taken to rectify an erroneous decision of a Ct. by submitting the question to a higher Ct. & it is added that the term includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen's Bench Division & the Ct. of Crown, cases reserved, & proceedings in error. In Bouvier's Law Dictionary it is stated that the term 'appeal' is used in a comprehensive sense so as to include both what is described technically as an appeal & also the common law writ of error. Osborn's Law Dictionary calls any proceedings taken to rectify an erroneous decision of a Ct. by bringing it before a higher Ct. an appeal. In view of these authorities, it will not be unreasonable to maintain that in all cases in which a superior Ct. is vested by law with. the power to rectify certain erroneous decisions by an inferior Ct. which decisions are not, under the law, open to appeal in its technical sense, & for rectification whereof the superior Ct. may either take action 'Suo motu' or be moved by the aggrieved party otherwise than by means of an appeal, such Ct., while exercising the power so vested in it, may rightly be described as acting in the exercise of appellate jurisdiction, & the proceedings taken by or before it for the exercise of such power may rightly be spoken of as proceedings on the appellate side.
92. My above view seems to find ample support from the Indian decisions in which the term 'appellate' has been held to include a H. C's judicial functions as a Ct. of revision. Reference may in this connection be made to the unanimous decision of Morgan C.J. & Ross Turner & Spankie, JJ. in Queen v. Nyn Singh' 2 NWP HCR 117, the decision of their Lordships of the Judicial Committee in 'Navivahu v. Turner' 16 I A 156, & the judgment of a F.B. of the Madras H.C. consisting of six Judges including the officiating Chief Justice, in 'Chappan v. Moidin Kutti' ILR 22 Mad 68. In the P.C. case, their Lordships, repelling a contention advanced before them that under the High Courts Act & Charter the division of jurisdiction was fourfold, ordinary original, extraordinary original, appellate, & those special matters which were the subject of special & separate provisions (e.g. revision), held that the last mentioned did not form a distinct head of jurisdiction & that the real division was three-fold: ordinary, extraordinary, & appellate. In 'Chappan v. Moidin Kutti' the following observations in the judgment of Subramania Ayyar, J., appearing at pp. 80-82 of the report, contain a very lucid exposition of the law on the subject:
The first question for consideration is 'whether the power of revision exercised by this Ct. under Section 622, Civil P.C. is, within the meaning of the High Courts Act & the Letters Patent constituting this Ct., a part of the Ct's appellate jurisdiction.
Now according to Webster's Dictionary the first meaning, in law, of the noun 'appeal' is the removal of a cause or a suit from an inferior to a superior Judge or Ct. for re-examination or review. The explanation of the term in Wharton's Law Lexicon, which is only different in words, is 'the removal of a cause from an inferior to a superior Ct. for the purpose of testing the soundness of the decision of the inferior Ct.'. And in consonance with this broad meaning of the word, 'appellate jurisdiction means 'the power of a superior Ct. to review the decision of an inferior Ct.'. Here the two things, which are required to constitute appellate jurisdiction, are the existence of the relation of superior & inferior Ct. & the power on the part of the former to review decisions of the latter. This has been well put by Story: 'The essential criterion of appellate jurisdiction is, that it revises & corrects the proceedings in a cause already instituted & does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted & acted upon by some other Ct., whose Judgment or proceedings are to be revised. (S. 1761, Commentaries on the Constitution of the United States).
It was, however, argued that, except where the superior Ct. is called upon to revise a decision of the inferior Ct. by a party entitled to set it in motion, the exercise of the power of revision cannot be said to be an exercise of appellate jurisdiction. This argument clearly misses the true point which is intended to be conveyed & is conveyed by the term appellate jurisdiction. 'That point is the capital distinction between jurisdiction which is original & jurisdiction which is not original, irrespective of the circumstances & conditions in which the latter is to be exercised'. Those circumstances & conditions are important, no doubt. Clearly they do not affect the abstract character of the jurisdiction but relate only to its application & practical working. 'An appellate jurisdiction' as pointed out by Story in the passage immediately following that already quoted, 'may be exercised in a variety of forms & indeed in any form which the Legislature may choose to prescribe'. Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by a party as a matter of right or only subject to his obtaining the leave of the Ct. which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiction is allowed to be exercised. Nor are the conditions, prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to & more commonly imposed by Legislatures on the exercise of appellate functions. But none of such limitations, however, much it may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself. Now, as Section 622 in question gives in terms to this Ct. the power to revise decisions of 'Courts subordinate to it' it follows that the essential criterion of appellate jurisdiction, enunciated in the above quotation, is present in the case of proceedings held by this Ct. under that section & that the power exercised in such proceedings is therefore a part of the Ct's appellate jurisdiction. 'It is clear that all the powers exercisable by the Court, that are not included under original, must come under appellate jurisdiction'. It seems, therefore, to be clear that the term 'appellate jurisdiction' is both grammatically & logically wide enough to comprehend the power exercisable under Section 622.
93. Under Section 376, Or. P.C. the H. C. has, on proceeding's being submitted to it by the Ct. of Sessions, the power not only to confirm the sentence but also to set aside the conviction & acquit the accused person, or order as new trial on the same or an amended charge, or to convert the conviction into one for some other offence of which the Ses. J. might have convicted him, or while maintaining the conviction under Section 302, Penal Code, convert the sentence of death into some other sentence warranted by law. In other words it can exercise all the powers that could be exercised by it on appeal by the accused person from his conviction. In the exercise of its revisional jurisdiction, the H. C has been expressly empowered by Section 439, Cr. P.C. to exercise any of the powers conferred on a Ct. of Appeal. In the light of the authorities referred to above, & particularly in view of the observations of Subramania Ayyar, J. in the Madras P. B. case, in both these cases the H, C. can be said to be acting in the exercise of its appellate jurisdiction & the proceedings before it, in either case, can be said to be proceedings on its appellate side, which by virtue of the provisions of 01. 13 (3), High Courts (Punjab) Order, stand transferred, as from 15-8-1947, to the H. C. of East Punjab in all cases where the Ct. of origin was situate within territories now forming part of the Province of East Punjab or of the Province of Delhi.
94. The Govt. of India Act of 1919, in referring to the jurisdiction of the Indian High Courts, spoke only of their original & appellate jurisdictions & did not mention any other class or kind of jurisdiction. Section 108(1) of the aforesaid Act read as follows:
Each High Court may, by its own rules, provide as it thinks fit for the exercise by one or more Judges or by division courts constituted by two or more Judges, of the H. C, of the original & appellate jurisdiction vested in the Ct.
By Section 223, the Govt. of India Act of 1935 provided that, subject to the provisions of that Act, or any Order in Council made under that or any other Act, & subject to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by that Act, the jurisdiction of any existing High Court, & the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court & to regulate the sittings of the Court & of members thereof sitting alone or in division Courts, was to be the same as immediately before the commencement of that part of the Act. Article 26, Letters Patent, of the H. C. of Lahore also speaks; only of these two classes of jurisdiction. It reads:
And we do hereby declare that any function which is hereby directed to be performed by the H. C. of Judicature at Lahore in the exercise of its original or appellate jurisdiction may be performed by any Judge.
Clause 36 of the Charters of the High Courts of the three Presidency Towns of Calcutta, Madras & Bombay, & Article 28 & 34 respectively of the Letters Patents of the High Courts of Patna & Rangoon also mention only these two classes of jurisdiction. The only reasonable conclusion that can be drawn from all this is that in all cases in which the H. C, whether on the civil or on the criminal side, exercises jurisdiction which cannot be said to be original jurisdiction; in every case, that is, in which it sets out to examine the decision of a Ct. subordinate to it with a view to confirm, set aside, or modify such decision according as it is found to be correct, erroneous, or partially erroneous, it acts in the exercise of appellate jurisdiction, it being wholly immaterial whether its jurisdiction has, in the particular case been invoked by the aggrieved party filing an appeal or a petition for revision, or any other petition, or in any other manner provided by law.
95. If the words 'Proceedings pending on the appellate side' In Clause 13 (3) of the High Courts (Punjab) Order are interpreted in their narrow & technical sense, the result must be that, besides proceedings submitted to the H. C. under Section 374, proceedings in petitions for revision, civil as well as criminal, filed in that Ct. before 15-8-1917 remain pending in that Ct. & cannot be transferred to the East Punjab H. C, even though the Ct. of origin is situate in the Province of East Punjab or in the Province of Delhi. There may be some room for controversy as to whether proceedings for confirmation of death sentence under Section 374 are covered by Clause 13 (2)(a) of the High Courts (Punjab) Order, proceedings in revision, civil or criminal, indisputably do not fall within the four corners of either (a) or (b) of Clause 13 (2) & therefore the jurisdiction of the H. C. of Lahore to deal with such proceedings after 15-8-1947 is quite clearly ousted by the first Sub-clause of 01. 13. (I must, with the utmost respect, confess my utter inability to appreciate the reasoning by which Sir Abdur Rahman has reached the conclusion that petitions for revision filed in the H. C. of Lahore before 15-8-1947 have to be disposed of by that Ct. The view taken by his Lordship runs counter to the well-recognised rules of International Law & the express provisions of 01. 5 & Clause 13 (1) of the High Courts (Punjab) Order). The situation thus created will be that the H. C. of East Punjab will be unable to deal with & dispose of such proceedings because of their not having been transferred to it, & the H. C. of Lahore will otherwise have no jurisdiction to deal with them. There will thus be a complete deadlock qua them. Surely such a situation could never have been contemplated by the authority responsible for the promulgation of the Order. A careful perusal of the Order can leave no doubt in one's mind as to the said authority's intention In respect of these cases. Quite obviously they were intended to be heard & determined, after 15-8-1947, by the H. C. of East Punjab. The deadlock adverted to above can be avoided, & this intention can be effectively carried out, if the words 'pending on the appellate side' in the third Sub-clause are held to have been used in their wider & more general, & not in their narrow & technical, sense.
96. There is abundant authority in the cases noticed by Sir Abdur Rahman himself justifying such a course. In 'Nokes v. Doncaster Amalgamation Collieries Ltd' decided by the House of Lords & reported as '63 LT 343' Viscount Simon, L. C, observed as follows:
if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility & should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
97. In 'Wright v. Williams' (1836) 46 RR 265, the following observations are to be found at p. 269 of the report:
If the words of the Statute were capable of being modified, so as to avoid an inconvenience plainly & manifestly arising from a strict construction of them, we ought to do so.
98. In 'Hollingworth v. Palmer' (1849) 4 Ex R 267, Parker B. observed as follows at p. 281 of the report:
The rule we have always followed of late years is to construe statutes, like all other written instruments, according to the ordinary grammatical sense of the words used, & if they appear contrary to, or irreconcilable with, the expressed intention of the legislature, or involve any absurdity or any inconsistency in their provisions, they must be modified so as to obviate that inconvenience.
99. In 'Attorney General v. Lockwood' (1842) 9 M & W 378, Alderson B. pointed out (at p. 398) that in the construction of statutes deviation from the plain, literal, & grammatical meaning of the words in which they are expressed is permissible where a narrow construction leads to a plain & clear contradiction of the apparent purpose of the Act, or to some palpable & evident absurdity.
100. The cases referred to above are some of the decisions relied on in the Lahore judgment. The law on the subject is summed up as follows in Maxwell's Interpretation of the Statutes (Edn. 7) at p. 198:
Where the language of a statute, in its ordinary meaning & grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not Intended, a construction may be put upon it which modifies the meaning of the words, & even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, Of an irresistible conviction that the Legislature could not possibly have intended what its words signify, & that modifications thus made are mere corrections of careless language & really give the true meaning. Where the main object & intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.
100. For the reasons given above, I feel no hesitation at all in holding that proceedings for confirmation of death sentence initiated in the H. C. of Lahore before 15-8-1947 on submission of proceedings as required by Section 374, Cr. P.C., by a Ct. of Session situate within territories included in the Provinces of East Punjab & Delhi cannot be regarded as proceedings pending in the said H. C. as a Ct. of reference. I have also no hesitation in holding that, as from 15-8-1947, Lahore H. C. ceased to have any jurisdiction to hear & determine such proceedings, & that from that date, the H. C. of East Punjab is the only Ct. having jurisdiction to deal with such proceedings. I further hold that such proceedings as well as any petition for revision filed in the H. C. of Lahore before 15-8-1947, & remaining undisposed of on that date, or any order made by any Ct. situate within the territories now included in the Province of East Punjab or forming part of the Province of Delhi, must be deemed to be proceedings pending on the appellate side of the said H. C. which, by virtue of the provisions of Clause 13 (3) of the High Courts (Punjab) Order, stand transferred to the H. C. of East Punjab.
101. I agree entirely with my Lord the Chief Justice & my learned brother Achhru Ram, & have nothing further to add.
102. I agree entirely with the conclusions reached by my Lord the Chief Justice & my learned brother Achhru Ram & with the reasoning by which these conclusions have been reached. A clear distinction is drawn in the Code of Criminal Procedure between Cts. of reference & of confirmation, & a case submitted under Section 374 differs essentially from all the recognised forms of reference in that such a case has already been decided by the Ses. J., whereas in a reference the point to be decided is always left for decision by the H. C. by the referring Ct. or authority. On the other hand it seems clear to me that a case submitted for confirmation of a death sentence is included in the term 'proceedings on the appellate side' in Clause 13 (3) of the Punjab High Courts Order, & so not only in such a case not reserved for decision by the H. C. at Lahore by the provisions of Clause 13 (2)(a) of the Order, as it would have to be if the Lahore Ct. were to retain any jurisdiction in the matter, but also such a case is positively transferred to this Ct. by the provisions of Clause 13 (3). I, therefore, agree that the answer to both the questions referred by the D. B. should be in the negative.