1. The appellant, Budara Janni, teas been convicted of murder by the Sessions Court of Vizagapatam, and has been sentenced to transportation for life.
2. In Sessions Case No. 18 of 1889 the appellant, on the same facts, was convicted by the Agent to the Governor in Vizagapatam of the offence of culpable homicide not amounting to murder, but this Court, being of opinion that the facts proved pointed clearly to the offence of murder, set aside, by its order in Criminal Appeal No. 13 of 1890 and Criminal Revision Case No. 150 of 1890, dated 30th April 1890, the conviction for the offence of culpable homicide not amounting to murder, and directed that the accused should be re-tried for the offence of murder, and the Court further directed that the re-trial should take place before the Sessions Court of Vizagapatam.
3. The appellant has been re-tried accordingly by the Sessions Court of Vizagapatam with the result already stated.
4. The Agent to the Governor in Vizagapatam (through the Government Pleader) now takes the objection that the order of this Court, dated 30th April last directing the re-trial of the appellant before a Court other than the Court of the Agent to the Governor was made without jurisdiction.
5. The appellant himself objected at the re-trial to the jurisdiction of the Sessions Court of Vizagapatam, but, in his grounds of appeal to this Court, he does not repeat the objection. The objection before us having been taken by the Agent, who is the local representative of Government, and, having been urged through the Government Pleader, it becomes necessary to consider fully the grounds of objection put forward.
6. The argument of the Government Pleader in support of the objection to the jurisdiction may be summarized as follows:
7. Under Madras Act XXIV of 1839 Secion 3, the Agents to the Governor in Vizagapatam and Ganjam have special jurisdiction within the limits of the Agency tracts in respect of the administration of criminal justice, and, in the exercise of this jurisdiction, they are to be guided by such rules as the Government of Madras may prescribe, and the authority the Agent is to exercise in criminal trials, as well as the cases he is to submit for the decision of the Faujdari Adalut (High Court), are, under Secion 4 of the same Act, made subject to definition by the Government of Madras. This enactment created a special jurisdiction and a special procedure. In 1862, the first Code of Criminal Procedure (Act XXV of 1861) came into force, but in that Code it was provided by Secion 445 that the Act should not take effect in any part of the territories in British India not subject to the general regulations of Bengal, Madras or Bombay, until the same should be extended thereto by the Governor-General of India in Council or by the Local Government to which such territory was subordinate, and until such extension should have been notified in the gazette. No notice extending the Criminal Procedure Code, as contemplated in Secion 445 of Act XXV of 1861 to the Agency tracts, would appear to have been issued by the Government of Madras so far as could be ascertained. This link of the argument was, as will afterwards be seen, found to be non-existent. The fact was not, however, ascertained until after the argument had closed. After Act XXV of 1861, came the Criminal Procedure Code of 1872 (Act X of 1872). This Code in Secion 2 preserved any special procedure at that time existing, and the Code of Criminal Procedure now in force (Act X of 1882), by virtue of Section 1, preserves all existing instances of special jurisdiction or of special forms of procedure prescribed by law. Such being the case, the special and exclusive jurisdiction relating to the administration of criminal justice in the Agency tracts conferred by the Act of 1839 must be held to be still subsisting, and the High Court had accordingly no authority, by its order of 30th April last, to direct that the re-trial of the appellant should be held before a Court other than the Court which, under the Act of 1839, exercises special and exclusive jurisdiction over the Agency tracts of the district of Vizagapatam.
8. The argument thus stated appears to us, on examination and apart from the erroneous statement of fact already noticed, not to be well-founded.
9. The question, whether the order made by us, under date the 30th April last, was an order which it was within our competence to make, does not, for reasons which will afterwards appear, depend solely on whether the Code of Criminal Procedure is applicable in the Agency tracts. It must first be seen, however, whether the Code does apply to such tracts. The Agency tracts of Ganjam and Vizagapatam have, by an enactment of 1874 (Act XIV of 1874), been included in the scheduled districts of the Madras Presidency, and the case of Queen-Empress v. Cheria Koya I.L.R. 13 Mad. 353, recently decided, is authority for the position that the Code of Criminal Procedure is not excluded from operation in a scheduled district by the mere fact of the district being declared to be a scheduled district. The case of Queen-Empress v. Cheria Koya I.L.R. 13 Mad. 353, which related to the Laccadive Islands, differed from the case now before us in this respect that, in the former case, there was no question of an established jurisdiction and procedure then existing under a special local law and conflicting possibly with the general jurisdiction and procedure prescribed in the Code of Criminal Procedure. This, however, was, on the coming into force of the Criminal Procedure Code of 1861, the state of affairs in the Agency tracts of Ganjam and Vizagapatam and if the Local Government had not, as it will be seen they have, in the clearest manner indicated their intention to supersede and withdraw the special jurisdiction and procedure then existing and to introduce in its place the jurisdiction and procedure denned in the Code of Criminal Procedure, we should be forced to conclude that the special jurisdiction and procedure continued, notwithstanding the circumstance that the Agency tracts were declared to be scheduled districts by Act XIV of 1874.
10. We have ascertained, however, that the Government of Madras by notifications dated 29th January and 17th February 1862, notified under Secion 445 of the then Code of Criminal Procedure (Act XXV of 1861), that the Act was extended to the Agency tracts of Ganjam and Vizagapatam with effect from the 20th February and 20th March 1862 respectively.
11. It has also been ascertained that early in the following year, the then Agent to the Governor in Ganjam obtained an order from the Government of Madras cancelling the rules for the administration of criminal justice framed under Act XXIV of 1839 on the ground that the same were inconsistent with the provisions of the Code and must be considered to have been superseded by that enactment, the operation of which had been extended to the Agency tracts. The order made by the Madras Government on the question submitted to them by the Agent (through the High Court) is dated 6th January 1863, and is in the following terms:-'Under the authority vested in him by Secion 4, Act XXIV of 1839, His Excellency the Governor in Council cancels so much of the revised Agency rules sanctioned by the Government in their Proceedings of the 24th July 1860 as relates to criminal justice and authorizes the Agents in Ganjam and Vizagapatam, respectively, to exercise the powers of a Sessions Judge in addition to those belonging to a Magistrate of a district under the Code of Criminal Procedure.'
12. The effect of this order was to withdraw the rules theretofore regulating the administration of criminal justice in the Agencies, to constitute the Agent a Sessions Judge under the Code of Criminal Procedure, and to substitute for the rules then in force all the rules and conditions under which Sessions Judges exercise the powers conferred on them by the Code of Criminal Procedure. The rules and conditions of the Code of Criminal Procedure render the proceedings of Sessions Courts subject to the powers of the High Court as a Court of Appeal and of Revision, and it is not disputed that the order of this Court, which the Agent now contests, was an order which could lawfully be made by the High Court in the exercise of its powers as a Court of Appeal and of Revision (Sections 439 and 423, Criminal Procedure Code).
13. On the ground, therefore, that the Criminal Procedure Code is in force in the Agency tracts of Ganjam and Vizagapatam, we must hold that the objection taken by the appellant and by the Agent to the jurisdiction cannot be sustained.
14. It has, however, already been intimated that the jurisdiction of this Court to make the order, to which objection has been taken, does not rest solely on the circumstance of the Code of Criminal Procedure being in force in the Agency tracts. Even if the Code of Criminal Procedure had not been shown to be in force in these tracts, it appears to us that the order could be supported under the powers conferred in the Letters Patent of the High Court. The Letters Patent, by express terms in Section 28, confer, on the High Court, unrestricted power to transfer criminal cases or appeals from any one Court to any other Court of equal or superior jurisdiction.
15. On the grounds stated, therefore, it appears to us that the objection to the jurisdiction of the High Court to make the order, dated 30th April last, must fail.
16. On the merits, we are satisfied that there are no grounds for questioning that the appellant has been rightly convicted of the offence of murder.
17. The two individuals, whom the accused is clearly proved to have stabbed, had given him absolutely no provocation beyond interfering to prevent violence to others, and the plea of drunkenness, even if it were clearly established by the evidence, which it is not, cannot avail the prisoner.
18. The sentence, which the Sessions Judge passed on the appellant, viz. transportation for life, was the only alternative to a sentence of death.
19. We confirm the sentence and dismiss the appeal.