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King-emperor Vs. Ramanuja Aiyangar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1935)68MLJ1
AppellantKing-emperor
RespondentRamanuja Aiyangar
Cases ReferredC.K.N. Sundaresa Aiyar v. Emperor
Excerpt:
- - 4901 was not collected that night and has never been collected, thus raising a very strong inference that the sender of this parcel did not travel by train at all but only got the passenger ticket in order to enable him to send the parcel by the train and this is shown by the prosecution evidence. the second point raised in the certificate is that in my charge to the jury i failed to tell the jury that there was no evidence that seethammal was ever in possession of the silver articles after she quitted no. this latter provision clearly refers to cases where a submission on a point of law has been made to the court whether by way of an objection to the admissibility of evidence or misjoinder of charges or any other legal question or to points of law raised by the trial judge.....horace owen compton beasley, kt., c.j.1. before dealing with the first point to be considered by this full bench, i propose to set out some of the facts of this case.2. at 1.34 a.m. on the 13th january of this year the parcels express train which left the egmore station at madras, at 10-40 p.m. arrived at karunguzhi station on the south indian railway there it delivered six parcels. five of these were handed over to respective owners on production by them of the tickets relating to them at about 7 o'clock on the same morning. the sixth remained undelivered as no one claimed it. it is described by mr. t.s. narayanaswami aiyar (p.w. 28) the assistant station master at karunguzhi to whom all the parcels were delivered as a bed parcel packed in a date leaf mat. the receipt of this parcel and.....
Judgment:

Horace Owen Compton Beasley, Kt., C.J.

1. Before dealing with the first point to be considered by this Full Bench, I propose to set out some of the facts of this case.

2. At 1.34 A.M. on the 13th January of this year the Parcels Express train which left the Egmore Station at Madras, at 10-40 P.M. arrived at Karunguzhi Station on the South Indian Railway There it delivered six parcels. Five of these were handed over to respective owners on production by them of the tickets relating to them at about 7 O'clock on the same morning. The sixth remained undelivered as no one claimed it. It is described by Mr. T.S. Narayanaswami Aiyar (P.W. 28) the Assistant Station Master at Karunguzhi to whom all the parcels were delivered as a bed parcel packed in a date leaf mat. The receipt of this parcel and the others was acknowledged by this witness in Ex. U. In order that parcels could be carried by that train as luggage it is necessary for the senders to have passenger tickets and the number of each passenger ticket is entered on Luggage Ticket form which gives the particulars of its respective parcel. Ex. W, is the one which relates to the undelivered parcel. The passenger's ticket number therein is III class No. 4901. The tickets relating to the other five parcels were duly collected on the night in question. Passenger ticket No. 4901 was not collected that night and has never been collected, thus raising a very strong inference that the sender of this parcel did not travel by train at all but only got the passenger ticket in order to enable him to send the parcel by the train and this is shown by the prosecution evidence. On the night of the 13th a foul smell was detected coming from the store room in which the undelivered parcel had been placed and on the morning of the 14th this smell was found to come from the parcel. At 5-30 P.M. on the same day, namely, the 14th January, the parcel was opened in the presence of the Railway Police Sub-Inspector of Chingleput, the Sub-Magistrate of Madurantakam, the Station Master and others and was found to contain the dead body of a woman. This was rolled in a date leaf mat and the pieces of gunny and rolled round the body was a mattress. The post-mortem examination resulted in a medical opinion that the dead woman had been killed by manual strangulation, the hyoid bone having been fractured. The majority verdict of the jury at the trial shows that the prosecution evidence identifying the dead body as that of a woman named Seethammal was accepted by them. This woman was the wife of Parthasarathy Aiyangar (P.W. 1). According to the prosecution evidence she left him on the 4th August, 1933 and joined the prisoner taking with her jewels and some silver vessels. The prosecution evidence is that Seethani' mal and the prisoner were living together thereafter at various addresses in Madras and in the statement made by the prisoner at the Sessions trial he admitted that he lived with her in a house at Muthukrishnier Street for four or five days and then went with her to No. 24, Peddunaicken Street and it is in this' latter house that the prosecution case was that Seethammal was strangled to death on the night of the 11th January. In his statement he denied that he ever lived in a house in the Post Office Street as deposed to by one prosecution witness. The prisoner and Seethammal went to No. 24, Peddunaicken Street on about the 22nd December, 1933. The prosecution evidence as stated by P.W. 2, the lessee of No. 24, Peddunaicken Street, P.W. 3 a tenant of a portion of the house and P.W. 6 a milk-seller who was supplying milk to Seethammal and the prisoner and who used to deliver milk to the former at the top of the stairs which led to the room occupied by the couple each morning at 5-30 or 6 shows that Seethammal lived at that address with the prisoner until the 11th January being last seen in that house at 6 or 6-30 P.M. on that date by P.W. 2 down-stairs in the Court-yard drawing water from a water-tap, by P.W. 3 at 7 or 7-30 P.M. the same day and by P.W. 6 the milk-seller on the morning of the same date. Thereafter Seethammal was never seen alive. On the morning of the 12th January P.W. 6 the milk-seller, went as usual to deliver the milk but found on going up the stats that the door leading into the. room was locked or secured from outside. She then went downstairs and told P.W. 2 that she had been unable to find anyone upstairs. At this time her account for milk supplied was unpaid. Later on she was paid by P.W. 2 who received and gave Rs. 4 on the morning of the 12th from the prisoner who, upon being questioned about what the milk-woman had reported, said that he had taken Seethammal that morning to his sister's house at Saidapet to assist his sister who was in labour. The prosecution case was that this explanation for the absence of Seethammal was untrue and in his statement at the Sessions trial the prisoner himself gave it up because he there stated that Seethammal left him on the 4th January. The prisoner remained at Peddunaicken Street until the 13th January when he went to another address and thereafter he pledged some silver vessels identified by the prosecution as those taken away by Seethammal when she left her husband on the 4th August, 1933. Before this on the 4th January, 1934 he had pledged another silver vessel similarly identified by the prosecution. Efforts to trace the sender of the parcel containing Seethammal's body resulted in the discovery of P.W. 25 Munuswami, a cooly porter at Egmore Railway Station, and P.W. 26 Jaganatha Thathachari, Assistant Parcels clerk at the Egmore Railway Station, the former of whom received the parcel from the accused at the Egmore Railway Station at about 9-45 P.M., on the 12th January, and with the assistance of another porter, not a witness in the case, carried it and weighed it in the weighing machine at the Parcels Office. The latter witness booked the parcel to Karunguzhi at the request of the prisoner. Both these witnesses identified the prisoner at an identification parade and at the trial. The case for the prosecution, therefore, was that Seethammal was last seen alive in 24, Peddu-naicken Street where she was then living with the prisoner on the 11th January, and that on the evening of the next day the prisoner sent her dead body wrapped up in a parcel to Karunguzhi by train and that afterwards he pledged silver vessels and jewellery alleged to belong to Seethammal. In these circumstances the prosecution contended that the jury were entitled to and ought to draw the inference that the prisoner had committed the murder, in the absence of any explanation from him which could be accepted as true accounting for her disappearance from No. 24, Peddunaicken Street and her re-appearance as a dead body wrapped in a parcel and sent by the prisoner by train to Karunguzhi the medical evidence being that she had been strangled. As I have stated before, beyond the two contradictory statements made by him, his denial that he committed the murder, and in the Committing Magistrate's Court his statement that he knew nothing about Seethammal - there was no explanation with regard to why and when Seethammal left the house, and way he sent off her dead body in a parcel, if he did so. The Jury by a majority of 6 to 3 found the prisoner guilty of the offence of murder and, there being no mitigating circumstances present, he was sentenced to death.

3. It is now necessary to refer to a matter in the case which is the foundation for the first point covered by the certificate of the Advocate-General. When the parcel was opened Seethammal's body was found to be wrapped up in a coir mattress and the case for the prosecution was that a mattress identified as similar to this was purchased during the morning of the 12th January from one Shaik Nannu Sahib, a mattress seller in Madras whose servant was P.W. 10 Mohammad Kasim and that the prisoner was its purchaser. The purchase price was Rs. 3. The purchaser paid only 8 annas as he had no money with him then and asked that the mattress should be sent by a coolie and said that he would send the balance with the coolie. This coolie was Thayammal P.W. 11. A cash bill Ex. D-1 was given. In that bill neither the name nor the address of the purchaser is given. P.W. 11's evidence was that on instructions from the purchaser she went to the fish market at Kondithope and there waited for him. After some time the purchaser came and took her to a house near the fish market where she deposited the mattress outside a house at about 12 noon, received the balance of the purchase price and took that back to the mattress shop. Although unable to give the number of the house or the street, this witness subsequently pointed out the house to the Police and it was No. 24, Peddunaicken Street, where the accused was living on the 12th January. From this evidence it might be, inferred by the jury that the purchaser of the mattress did not wish to let the vendor know where he was living viz., in that house. Whilst P.W. 10 was being examined in chief at the Sessions Trial when asked the following question 'subsequently did the Police come to you in connection with this case?' he answered: 'About 10 or 11 days afterwards, about 4 P.M., this Inspector and another Aiyar came with the accused and the accused pointed out that shop saying that it was in that shop that he purchased the mattress/No objection to this evidence with regard to what the prisoner stated was taken by learned Counsel for the prisoner--an Advocate of very large experience. This witness was then cross-examined by the Prisoner's Advocate with regard to what the prisoner had said on that occasion. P.W. 11 stated nothing about what the prisoner had said on this occasion in examination-in-chief but in cross-examination she said 'The accused himself mentioned me and said that it was a woman wearing a coral necklace.' No objection was taken by learned Advorate for the defence to this answer. She was also questioned by the Court on this matter. P.W. 42, S.R. Krishna Aiyangar, Inspector of Police in Cross-examination stated: 'While we were coming out, the accused pointed out that woman with coral beads on her neck and said 'that was the cooly that carried my mattress' '. In examination-in-chief he had stated that he and the prisoner had gone to the premises of the mattress-seller and that the prisioner pointed out the premises having taken the witness direct to that shop., As stated in the Certificate of the Advocate-General no objection was raised with regard to the admissibility of the evidence as to what was stated by the prisoner on that occasion. In my charge to the Jury I referred to this matter as follows:

The evidence is that the accused came to the shop in a motor car, got out and pointed out to the Police,' this is the shop; that is the man and this is the coolie woman who carried the mattress'. But the accused denied all this. This is not only the evidence of these two witnesses but it is also the evidence of the Crime Branch Inspector Mr. Krishna Aiyangar who gave evidence at the end.

4. In the opinion of the Advocate-General the reception of this evidence though without any objection to its admissibility being taken and my placing it before the Jury in my charge to them are decisions on points of law which require further consideration. The second point raised in the certificate is that in my charge to the Jury I failed to tell the Jury that there was no evidence that Seethammal was ever in possession of the silver articles after she quitted No. 2/26, Post Office Street on or about the 17th December, 1933 and that the Jury ought to have been told that: there was no evidence as to her being in possession of them subsequent to that date. This omission is, according to the amended certificate of the Advocate-General, in his Judgment a decision on a point of law under Clause 26 of the Letters Patent. The Crown Prosecutor gave notice that he intended to take a preliminary objection at the time of the hearing of this application to the Full Bench, the objection being that the application is incompetent as there was neither an error in a decision of a point of law decided by the Trial Judge nor a decision on a point of law requiring further consideration and submitting that the Full Bench decision in C.K.N. Sundaresa Aiyar v. King-Emperor (1930) M.W.N. 249 has wrongly interpreted the words 'decisions on a point of law decided by the Trial Judge' occurring in Clause 26 of the Letters Patent which he contends is not warranted by the language and spirit of the Letters Patent. In view of this objection a Full Bench of Seven Judges was formed to consider this preliminary objection of the learned Crown Prosecutor.

5. The relevant clauses of the amended Letters Patent are Clauses 25, 26 and 41. The marginal note of Clause 25 reads 'No appeal from High Court exercising Original Jurisdiction - Court may reserve points of law'. The clause itself says that 'there shall be no appeal to the said High Court of Judicature at Madras from any sentence or order passed or made in any Criminal trial before the Courts of Original Criminal Jurisdiction.... But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court'. Clause 26, the marginal note of which is 'High Court to review on certificate of Advocate-General', reads of follows:

And we do further ordain that, on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of Original Criminal Jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of Original Jurisdiction, and to pass such Judgment and sentence as to the said High Court shall seem right'. Clause 25 therefore, directly prohibits any appeal to the High Court from its own criminal Sessions but power is given to the Sessions trial Judge to reserve any point or points of law for the opinion of the said High Court. This latter provision clearly refers to cases where a submission on a point of law has been made to the Court whether by way of an objection to the admissibility of evidence or misjoinder of charges or any other legal question or to points of law raised by the trial Judge himself. Such point or points of law as have been reserved by the Judge are then considered by the High Court under Clause 26 which enables the High Court also on a certificate of the Advocate-General to consider a point or points of law decided by the High Court Criminal Sessions trial Judge. The question before us is whether the words of Clause 26 are to be given their ordinary meaning, that is to say, that there must be a point of law and that point of law must be actually decided, or whether the meaning to be given to them is so wide a one as to include what is called 'matter of law' in Section 418 of the Code of Criminal Procedure, that is, such mis-direction or non-direction as would permit an appeal from a Mofussil Court against the verdict of a Jury. This would include not only an error in laying down the law but defects in summing up the evidence or in not summing it up or summing it up erroneously or any infringement of the law as laid down in S, 297 of the Code of Criminal Procedure which would also include errors of procedure. Mr. T. R. Venkatrama Sastri on behalf of the respondent contends that all matters which would entitle a person convicted at a Sessions Court by a Jury to appeal to the High Court entitled him on conviction at the Criminal Sessions of the High Court to ask the Advocate-General for his certificate under Clause 26 of the Letters Patent.

6. This is not the first occasion on which a preliminary objection similar to that of the learned Crown Prosecutor has been taken because in Queen-Empress v. O'Hara I.L.R. (1890)Cal. 642 the Standing Counsel, Mr. Phillips raised the same objection. This appears from p. 657. He contended that under Clause 26 there must be a point of law and that point of law must have been decided. In dealing with the question of whether there had been a decision he contended: 'Secondly, there was no decision. What a Judge may say inadvertently in his charge and which is afterwards looked into and said to contain a point of law, is no decision. No notice is taken of what the Judge may have said till after the case is over. It is not necessary for me to say that nothing that a Judge says in a charge is not a decision; but under Clause 26 the matter must be a matter raised and decided consciously and not inadvertently.' The question raised by the Standing Counsel the Full Bench did not consider it necessary to decide although they stated that in their opinion it was clear that in a case of mis-direction such as there was there and of improper reception of evidence such as had taken place the Court should exercise its powers of review. On p. 667 Petharam, C.J. says:

In the view we take of the case, it is unnecessary to deal with the argument for the prosecution as to the powers of the Court acting under Section 26 of the Charter.

7. In King-Emperor v. Peary and Lakshi Peshakar 23 C.W.N. 426 the Standing Counsel Mr. Das raised the objection that under Clause 26 of the Letters Patent the Advocate-General has no power to grant a fiat for a mis-direction on a question of fact. He argued that there is a distinction between the law applicable to Sessions Trial at the High Court and that governing the procedure of Mofussil Criminal Courts. Sanderson, C.J. in his judgment expressed no opinion upon the point raised by the Standing Counsel as it was not necessary to do so because on the merits no sufficient case was made out for the Court to interfere. In Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, Mr. Scoble for the Crown contended that under Clause 26 of the Letters Patent there must be some point of law decided. The exact scope of Clause 26 nevertheless remained undefined by the Full Bench except that it was held that non-direction by a Judge is not a matter upon which the Advocate-General should grant a certificate under Clause 26 of the Letters Patent. I next come to C.K. N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 In that case before the Full Bench the same preliminary objection as that raised in this case was taken and a direct decision upon the point was given. The Full Bench held that a mistake made by the trial Judge in stating the law to the Jury is a misdirection and amounts to a decision of a point of law. Wallace, J. who delivered the Judgment of the Court (Eddy, J. dissenting) held that the words 'decision of a point of law' are not confined to the point of law specifically put up and decided by the trial Court. They include in his opinion all matters decided or which fall to be decided by the trial Judge in the case. They include his conclusions arrived and stated whether right or wrong. They also include what he does not state. In his view the word ' decision' includes every mental conclusion on which the charge or judgment is based whether stated correctly or misstated. It includes directions, mis-directions and non-directions to a Jury. Misdirection includes not only error in laying down the law by which the Jury are to be guided but also a defect in summing up the evidence or in not summing it up or in summing it up erroneously, such error and defect being in all cases an infringement of the law laid down under Section 297 of the Criminal Procedure Code, which applies to all Criminal Courts including the Sessions of the High Court. Therefore in his opinion a trial at the Criminal Sessions of the High Court is on the same footing as one in the mofussil and gives the prisoner the right of appeal or review on all points in respect of which he could claim the same remedy on conviction by a Mofussil Sessions Court. In the course of his judgment Wallace, J., says:

It seems absurd to argue that a judgment which stated nothing or stated non sense would not be a decision. The Judge in his judgment or charge as read or pronounced is deciding all the time. For example, if he omits altogether to sum up the law, he has decided that it is not his duty to sum it up.

8. With all respect to Wallace, J., I am unable to see how an omission to sum up the law can be a decision upon a point of law although it would be an error. He then continues:

If he admits and discusses certain evidence, he has decided to admit it, even though neither party raised the question of its admissibility. If he states that the defence case is so and so he has decided that it is in fact so and so. Clearly the word ' decision ' includes every mental conclusion on which the judgment or charge is based, whether stated or not stated, whether stated correctly or mis-stated.

9. He further holds that the words ' point of law ' are the same as what is called ' matter of law ' in Section 418 of the Criminal Procedure Code. It is true that these observations may be taken to be general since the point for consideration in that case was whether a mistake in laying down the law of the offence charged to the Jury was a mis-direction and amounted to a decision on a point of law. But even though these observations were not necessary for the decision of that point they must be considered here as I am bound to say that they appear to me to go far beyond what is intended by Clause 26 of the Letters Patent. According to Wallace, J., a ' decision ' includes that which was not stated to the Jury. It includes an omission to put certain evidence before the Jury, but I must observe that it is not the duty of a trial Judge to put every piece of evidence before the Jury nor is it his duty to read out the whole of the defence statement. Yet, according to Wallace, J., if he has omitted to refer to any piece of evidence or to any part of the statement made by the prisoner at the Sessions Trial, it is open thereafter to an ingenious Counsel to select such omissions and ask the Advocate-General to certify that there has been a decision on a point of law which is or may be erroneous. In my view, this cannot be intended by Clause 26 of the Letters Patent. In King v. Cohen and Bateman 2 Cr. A.R. 197, Channel, J., in discussing Section 4(1) of the Criminal AppealAct says:

A mistake of the Judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of lazv, but merely comes within the very wide words'any other ground' so that the appeal should be allowed according as there is or is not 'a miscarriage of justice'.

10. It would be fair to include also, in my opinion, in the above statement of the position by Channel, J., an omission to refer to a piece of evidence or to a part of the prisoner's statement made to the Court and there are doubtless many other matters of a similar nature. Suppose, for example, the Judge in his Charge to the Jury makes no reference to a piece of evidence because he has forgotten about it. How can it possibly be said that he has come to any decision with regard to it and where is the point of law involved? Eddy, J., who delivered the dissenting judgment in the Full Bench case refers to King v. Cohen and Batenian 2 Cr. A.R. 197 in support of his view which is that a point of law referred to in Clause 26 means a point of law submitted to and decided by the trial Judge or any direction as to the law given by him in the course of his summing up to the Jury. In his view it is essential that, first of all, there must be some point or points of law and, secondly, a decision thereon; and that is what Clause 26 of the Letters Patent says. A decision must mean a conclusion arrived at. It is true that a person may come to a conclusion in his own mind and, although he does not state it because it is not necessary to state it, it is none the less a conclusion. A person jnay decide in his own mind to do something and in pursuance of that decision may do it but what has to be considered here are not cases such as that but what the meaning of ' decided ' is in relation to a point of law. When a Judge in his Charge to the Jury states the law to them he is probably deciding the law. It is his duty to state the law and he consciously states it; but when it is contended that the reception of inadmissible evidence, where no objection is taken as to its admissibility and the Judge's mind is never directed to the question of its admissibility and he has never been asked to say whether it is admissible or not, is a decision of a point of law in my view it is stretching the meaning of the word ' decision ' beyond reasonable limits. The Judge has not even come to a mental conclusion upon the matter. Similarly, if he refers in his Charge to the Jury to this same evidence again without any objection, I am of the same opinion, namely that he cannot have decided the question or its admissibility. What he has done utmost is inadvertently to refer to what is already in evidence and he has, if it is inadmissible, been guilty of an error which if it is sufficiently serious, may have resulted in a .miscarriage of justice and on that ground the trial may be vitiated but not on the ground that there has been an error in the decision of a point of law. Wallace, J., is of the opinion that, if such matters as he sets out in his judgment are not 'decisions' upon 'points of law' within Clause 26 of the Letters Patent, the accused has no remedy. With this view I am unable to agree because it seems to me clear that he has, a remedy under Clause 41 of the Letters Patent which enables an appeal to be carried to the Privy Council from any judgment, order or sentence of the High Court made in the exercise of Original Criminal Jurisdiction provided that the said High Court shall declare that the case is a fit one for such appeal or in any criminal case where any point or points of law have been reserved for the opinion of the High Court in the manner before provided in the Letters Patent, i.e., by Clause 25 by any Court which has exercised original jurisdiction provided that the High Court declares that the case is a fit one for such appeal. The earlier part of this clause, in my opinion, entitles a prisoner, provided that he has got a certificate of fitness of the High Court, to go direct to the Privy Council in all cases except where the Judge has reserved any point or points of law under Clause 25. In Reg v. Pestanji Dinshah (1873) 10 B.H.C.R. 75 it was held that non-direction by a Judge is not a matter upon which the Advocate-General should grant any certificate under Clause 26 of the Letters Patent. If that opinion is correct which in my view it is, there is that distinction between an appeal from a mofussil criminal Court and a criminal trial at the High Court Sessions and it is also stated that on an appeal from the mofussil the High Court has a much wider sphere of action. There are cases in which the wrong admission of evidence was dealt with by a Full Bench as a matter arising under Clause 26. One of these is Emperor v. Narayan Raghunath Patki I.L.R.(1907) 32 Bom. 111 which related to the admission of a confession. But I gather that there had been a ruling of the trial Judge during the course of the trial that the evidence was admissible and this of course would be a decision. But it was also held in the same case that a decision by a Judge as to whether or not a confession is voluntary is not a decision on a point of law but on a question of fact. The observations of Wallace, J., in C.K.N. Sundayesa Aiyar v. King-Emperor (1930) M.W.N. 249 , however, would express the contrary opinion. In The Queen-Empress v. O'Hara I.L.R.(1890)Cal. 642 the Judge read to the jury a statement (which had been objected to and had not been admitted in evidence) saying that he would read it and it would do no harm and it was held that the improper reception of such evidence constituted a decision erroneous in point of law calculated to prejudice the prisoner. This was a case certified by the Advocate-General under Clause 26 of the Letters Patent. This is not actually an authority against the learned Crown Prosecutor's contention here. On page 667 in the course of the judgment it is stated:

We think that to lay before the jury these statements, not admitted nor admissible in evidence, was in itself a decision erroneous in point of law.

11. In Emperor v. Upendranath Das (1914) 21 Cal. L.J. 377 as before stated the Full Bench declined to give a ruling upon a similar preliminary objection to that in this case but the Full Bench did state the opinion that no error of law is committed by a Judge who refrains from directing the Jury as to exceptions which had neither been raised nor relied upon by the accused and had no basis in evidence on the record; and it was stated by Mookerjee, J., that mere non-direction is not necessarily misdirection and by the same Judge that the expression 'lay down the law' in Section 297, Criminal Procedure Code, does not signify 'lay down the whole law on the subject irrespective of the facts of the particular case before the Court'. From the judgment of the latter Judge, with whose opinion I agree, it is clear that the summing up should be strictly confined to the evidence adduced and the mode of application of the law to such evidence and not to questions which do not properly arise at all. I refer to this as it has a strong bearing upon the second point raised in the certificate of the Advocate-General. Holmwood, J., on page 394 stated that he had no doubt that 'no error of law is committed by a Judge who refrains from directing a jury as to exceptions which have neither been raised nor relied upon by the accused and have no basis in evidence on record'. It is true of course that what was being considered by the Full Bench there were the Exceptions to Section 300, Indian Penal Code, but these opinions are certainly useful ones as showing that the failure of a Judge to put to the jury a case not raised at all by an accused nor relied upon by him and having no basis in evidence on the record is not a misdirection to the jury.

12. In considering the scope of Clauses 25 and 26 of the Letters Patent it is important to remember that on the date of the amended Letters Patent there was in England a Statute (11 and 12 Victoria, Ch. 73) out of which there came the Court for Crown Cases Reserved; and it is reasonable to suppose that the Crown had in mind that statute when it enacted Clauses 25 and 26 of the amended Letters Patent. I say this because Section 1 of 11 and 12 Victoria, Ch. 73 has somewhat similar words to Clause 25. By that section power is given to the trial Judge or Recorder of a Court of Quarter Sessions or Justices of the Peace before whom a criminal case shall have been tried in his or their discretion to reserve any question of law which shall have arisen on the trial for consideration of the Judges. Upon such question being reserved the Judge is to state a case setting out the question or questions of law which have been so reserved. The Court before whom these questions came was the Court for Crown Cases Reserved. Section 5 gives the Court of Queen's Bench the power to reverse Judgments on writs of error issued upon the fiat of the Attorney-General. The history of writs of error in Criminal cases is contained in Stephen's ' History of the Criminal Law of England ' Vol. 1 commencing at page 308. Formerly these were issued entirely as a matter of favour. The defendant brought his writ of error. The Attorney-General admitted that there was error. Court accepted his admission and the conviction was set aside. But in the third year of Queen Anne's reign Courts decided that they would not be content with the Attorney-General's admission of error but would judicially determine whether error existed or not. Then in cases of misdemeanour writs of error were granted as a matter of justice but in cases of felony and treason exclusively as a matter of favour. It would appear that this method of review in criminal cases was very rarely used and only errors apparent on the face of the record were capable of being reviewed and the record on the date when Sir James Fitzjames Stephen published his ' History of the Criminal Law of England', namely, 1882 took no notice either of the evidence or of the direction given by the Judge to the Jury. This appears on page 309. On page 312 in the foot-note it is stated that the writ of error in Orton's Casel and in Bradlaugh v. The Queen (1878) 3 Q.B.D. 607 were the only writs of error in Criminal Cases which had been decided for a considerable time. In the three cases referred to in argument before us, viz., Ex-parte Newton (1855) 4 El.Bl. 870 : 19 E.R.K.B. 323, Ex-parte Lees (1860) El. Bl. And El. 828 : 120 E.R. 718, and Rex v. Wilkes (1770) 4 Burr. 2527 : 98 E.R.K.B. 327, the errors were all errors apparent on the record. In Bradlaugh v. The Queen (1878) 3 Q.B.D. 607, it was again an error on the face of the record. It was there held that in an indictment for publishing an obscene book it is not sufficient to describe the book by its title only for the words thereof alleged to be obscene must be set out and if they are omitted, the defect will not be cured by a verdict of guilty and the indictment will be bad either upon arrest of judgment or upon error. It is clear that in all the cases referred to in argument there what were being considered were some errors appearing in the indictment. In Orton's Case (March 1881) (vide the foot-note to page 309 in Stephen's History of the Criminal Law of England) the main question was whether cumulative punishment could be awarded for two offences charged in separate counts of the same 'indictment. In my view, it is clear that writs of error dealt entirely with points of law apparent on the face of the record such as an indictment. Therefore, on the date of the Letters Patent the was in England a very restricted right of review in Criminal Cases, that is to say, on points of law reserved by the Trial Judges and cases stated by them covering such points and writs of error with the fiat of the Attorney-General dealing only with errors of law on the then record, such cases being extremely rare. What was the intention of the Crown when Clauses 25 and 26 of the Letters Patent were enacted? It seems to me only reasonable to suppose that an endeavour was being made to give a similar power of review in the case of trials at the Criminal Sessions of the High Court although the contention of the Crown here concedes that a slightly greater right of review has been given in that, instead of writs of error dealing only with errors appearing in the indictment, the Advocate-General is entitled to give his certificate in respect of a point or points of law submitted during the trial to the Court which the Court has not reserved for the opinion of the High Court but given a decision thereon, the contention of the Crown being that, when points of law are raised during the trial and submissions made thereon, the Judge has the alternative either of giving a ruling upon the point or points of law submitted or of reserving the point or points for the consideration of the High Court and that Clause 26, so far as the Advocate-General's powers are concerned, relates only to the before-mentioned point or points of law not reserved but decided, although it is conceded by the Crown that mis-statements of the law in laying it down in the charge to the Jury are also included. In my view, this contention is right. Having regard to the then existing powers of review in criminal cases in England, I can see no warrant for the contention that the Crown intended to give a right of first appeal similar to that from a mofussil criminal trial; and I am satisfied that the view taken by : Wallace, J., that there is such a right is incorrect though the decission in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 , on the main I question is no doubt right. In connection with the contention that I there is a right of first appeal in such cases similar to that from a I mofussil criminal trial, I must observe that this view does not I appear to have been the one generally taken because, as far as I have been able to ascertain, since 1881, before which date there I are no records, only three cases have come before the High Court I under Clause 26 of the Letters Patent. I am of the view that neither of the points raised in the certificate of the Advocate-General here are within the purview of Clause 26 of the Letters Patent. With regard to the first point, although the admissibility of evidence is without doubt a question of law, there was no decision thereon at the trial. If the evidence was inadmissible then it was an error of law but I am unable to see how there was a decision upon a point of law. It was open to the learned Counsel for the prisoner either during the Charge to the Jury or afterwards to make a submission with regard to the admissibility of the evidence; and indeed it was his duty to do so if in his opinion the evidence was inadmissible unless he thought that, in view of the other evidence in the case, its admission did not materially prejudice his client.

13. Turning to the second point, I am quite satisfied that this does not come within Clause 26. In the way in which the point was first set out in the Advocate-General's certificate, it was exceedingly difficult to understand what the alleged point of law was, much less so how there had been any decision with regard to it. The Advocate-General was allowed to amend his certificate and has done so by adding the words 'and in my judgment the facts and circumstances mentioned above are and constitute a decision on a point of law under Clause 26 of the Letters Patent'. After some difficulty Mr.Venkatrama Sastri formulated the following contention, namely, that it is the duty of the trial Judge to tell the jury upon whom the onus of proof rests and that in a criminal case the onus, subject to certain exceptions, is always upon the prosecution. With this contention no one will quarrel. He then contended that I ought to have told the Jury in my charge that the Crown had to prove that Seethammal was in possession of the silver vessels during the time when she was living in 24, Peddunaicken Street, and that the prosecution evidence only showed that she was last in possession of them when she was living with the prisoner at 2-26, Post Office Street, which she left in his company on or about the 17th December, 1933, and that the jury would be entitled to say that it had not been proved that Seethammal had these articles with her down to the time of her death. The answer to this contention - and it is one which is so obviously given in the statement of the prisoner at the trial that it is difficult to see how with all respect the Advocate-General could have overlooked it is that this question was never in issue in view of the prisoner's own case. I must here again refer to the case for the Crown with regard to these articles. It was that they had been taken away by Seethammal from her husband when she left him in the previous August and after her death were pledged by the prisoner and indeed one of them a week before her murder. The prisoner did not dispute the pledging of the silver vessels but he denied that they were Seethammal's and said that they belonged to him. In his statement made to the Court he said' There were also certain silver articles with me such as silver plate, silver cup, panchapathram, etc., which were presented to me by my father-in-law's people. I was keeping these jewels and other things for my own use. They are all my own' and later on: 'As I have pledged these silver articles, etc., which belonged to myself, when I was questioned I said that I had pledged such and such jewels at such and such place. They are articles of my own.' It was not the prisoner's case that he left 24, Peddunaicken Street before the 12th or 13th of January. The question was to whom did these articles identified in Court as the pledged articles and admitted by the prisoner to have been pledged by him, belong? Seethammal's husband had identified them as belonging to him. The question as to whether or not they were in 24, Peddunaicken Street was never in issue in view of the prisoner's case. He said that the articles were his, that they were with him and that he had been using them. The point now put forward was one which was not raised by the prisoner by way of defence and it appears to me to be unsound to contend that nevertheless the Jury should have been invited by me to disbelieve the prisoner's admission that these articles were with him and as it were contradict him on that point and that instead the Jury should have been directed that they were entitled to infer that they were left behind in 2-26, Post Office Street when Seethammal and the prisoner removed themselves from there to 24, Peddunaicken Street which was never the case of the prisoner. I am wholly unable to see how this was even a non-direction as to the question of onus; and I am satisfied that this is not a decision on a point of law within Clause 26 of the Letters; Patent.

14. An objection was taken to the learned Crown Prosecutor's Preliminary objection and that was that the certificate of the Advocate-General is conclusive with regard to all matters it contains except his opinion with regard to the error. It was contended that i his certificate is final and conclusive and that the Court is not competent to say that there is no point of law or a decision upon I it within Clause 26 if the Advocate-General certifies that there is. Mr. I Venkatrama Sastri argued that the Advocate-General's judgment I in Clause 26 relates to the error in the decision of the point or points I of law and not to whether a point or points of law has or have I been decided. But in his amended certificate the Advocate-I General has added the words, 'which are in my judgment decisions I on points of law'. I am quite unable to see why the High Court is I; limited in its powers to a consideration of whether the Advocates' General's judgment is wrong with regard to the error and has no power to consider his judgment on the other points. During the course of his argument Mr. Venkatrama Sastri was asked whether the Advocate-General could convert a question of fact into a 'point of law' decided merely by stating that it was a point of law in his certificate; and to this question no satisfactory answer was forthcoming. The Advocate-General derives his powers of certification from Clause 26 and Clause 26 alone. His powers are limited to points of law decided. If there is no point of law or no decision upon it, then he has no jurisdiction to grant a certificate; and I cannot accept the contention that the High Court is nevertheless bound to entertain the reference where the Advocate-General has mistaken a question of fact for a point of law or mistakenly thought that there has been a decision upon it. The High Court only gets its powers of review in such cases from Clause 26 and, if the High Court reviews questions which are not points of law or points of law which have not been decided, it is exceeding its powers of review. During the argument another question was put to Mr. Venkatrama Sastri, namely, suppose the Judge reserves a point under Clause 25 erroneously believing it to be a point of law whereas it is a question of fact, would the High Court be bound to entertain the reference which on the face of it is one on a question of fact, merely because the trial judge has reserved that point? I understood Mr. Venkatrama Sastri to agree that the High Court would not be bound to do so. If this is so, I am quite unable to understand why it should be contended that the Advocate-General is in any better position. Both he and the trial Judge derive their powers from Clauses 25 and 26 respectively. I am, therefore, of the opinion that the Advocate-General's judgment not only as regards the error but as regards there being points of law decided is open to be questioned by the High Court; and for the reasons I have already given on the main question, neither of the points set out by the Advocate-General in his certificate are, in my opinion, points of law decided within the meaning of Clause 26 of the Letters Patent and that therefore we cannot entertain this criminal miscellaneous petition.

Ramesam, J.

15. In this case the accused was tried for the offence of murder under Section 302, Indian Penal Code before my Lord Chief Justice of this Court assisted by a jury. The jury by a majority of 6 to 3 brought in a verdict of guilty. My Lord accepting the verdict of the majority sentenced the accused to death. Thereupon the accused applied to the learned Advocate-General and obtained a certificate which purports to be a certificate under Clause 26 of the Letters Patent. On the basis of the Advocate-General's certificate the accused applied to this Court for a review of the case. The matter accordingly came up before a Full Bench of seven judges.

16. The facts of the case, as far as they are relevant for the purpose of this judgment, are stated in the judgment of my Lord Chief Justice and it is unnecessary to repeat them.

17. The Crown Prosecutor has taken a preliminary objection that the certificate given by the Advocate-General does not satisfy the requirements of Clause 26 of the Letters Patent and gives no jurisdiction to this Court to review the case. He contends that there must be a point or points of law decided by the Court of Original Criminal Jurisdiction and where there is such a point of law decided by the Court, the Advocate-General may certify that there is an error in the decision or that the point or points of law should be further considered, but the Advocate-General can give no certificate if there is no decision by the Court of Original Criminal Jurisdiction on a point or points of law.

18. In Queen-Empress v. Shib Chunder Mitter I.L.R.(1884) Cal. 1079, an objection of this kind was taken by Mr. Phillips who appeared for the Crown but the judgment delivered in the case do not relate to this point but proceed to deal with the merits of the case.

19. Again in Queen-Empress v. O'Hara I.L.R. (1890) Cal. 642 a similar objection was taken by the Standing Counsel who appeared for the Crown. Petheram, C.J., in delivering the judgment of the Full Bench observed 'In the view we take of the case it is unnecessary to deal with the argument for the prosecution as to the powers of the Court acting under Section 26 of the Charter. We take it to be clear that in a case of misdirection such as this and of improper reception of evidence such as took place in the present case this Court may and ought to exercise powers of review.'

20. In an earlier part of the judgment the question was discussed whether an omission by the judge to advise the jury according to the rule that an accomplice is unworthy of credit unless he is corroborated in material particulars would be a ground for interference and the learned Chief Justice observed 'we are not prepared to say that this Court might not feel bound even on the ground of such an omission alone to review the case under Clause 26 of the Letters Patent. This difficult question however need not be decided in the present case.'

21. In Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, Counsel for the prisoner asked the presiding judge to rule that there was no case to go to the jury but the learned judge refused to do so holding that there was certainly a case to go to the jury. At the close of counsel's address his junior counsel by his direction asked the learned judge to reserve under Clause 26 of the Letters Patent for the opinion of the High Court a certain point of law, but the learned judge declined to do so saying that he did not think there was then any question of law to be reserved. The Advocate-General who gave the certificate appeared in support of the conviction. He stated that he gave the certificate on the representation of the counsel but he did not admit as a fact that a direction alleged to have been given had in fact been given. Thereupon the Court suggested that the certificate might be amended which was accordingly done. After amendment the certificate stated that the judge did not instruct the jury on a certain point of law, and did tell the jury that there was no point of law to be reserved for the opinion of the High Court. Westropp, C.J. observed 'The allegation in that certificate that the judge refused to reserve the point of law states no error in law....The first part of this allegation, viz., that the Judge 'did not instruct' etc., is an averment of an omission and no more on the part of the learned judge. It simply puts forth a non-direction by him not a misdirection'. After referring to some of the authorities the learned Chief Justice quoted Baron Parke in M'Alpine v. Mangaall (1846) 3 C.B. Rep. 496 : 136 E.R. 198 who said 'That which you complain of here is a non-direction which cannot clearly be made the subject of a bill of exceptions It is misdirection and not non-direction that is the proper subject of a bill of exceptions.' Again he quotes Crampton, J., in O'Kaffe v. Cardinal (1873) 7 Irish C.L. Rep. 319 who said 'The judge is not by law compelled to charge at all though in many cases it may be right and expedient to do so. The exception should be for mis-direction not for non-directiorr.' Then the learned Chief Justice referred to two cases Elahee Buksh, In re (1866) 5 W.R. 80 , and Queen v. Narain Acharj (1867) 8 W.R. 80 which were relied upon by Counsel for the defence for showing that the omission to direct will be treated as an actual mis-direction and observed 'But for that purpose these cases are not in point upon questions reserved by a judge or certified by the Advocate-General at the Original Jurisdiction Side of the High Court where the procedure in criminal cases is not regulated by the Criminal Procedure Code but in the main by the English Practice as it existed in the Supreme Court have where altered by special legislation or by the Charter of the High Court....On an appeal from the mofussil the High Court has a much wider sphere of action than upon Clauses 25 and 26 of the Letters Patent in cases on the original jurisdiction side. But even supposing that on the present occasion we were disposed lo allow to ourselves a greater latitude than seems to be permitted, in cases reserved under the Stat. 11 and 12 Viet. Ch. 78 in England and to enquire whether the alleged non-direction in this case amounted to mis-direction and had misled the jury or was likely to misled them.... we have come to the conclusion that the Court ought not to interfere with the convictions had in this case.'

22. In Empress v. Patrick Me Guire 4 C.W.N. 433, the standing Counsel Mr. O'Kinealy in the Course of the argument said 'can it be said that there is a decision so as to bring the case within Clause 26 of the Letters Patent? It was taken as a matter of course that these two banks were governed by the Banker's Books Evidence Act by all parties concerned.' Maclean, C. J., in the course of his judgment observed 'I entertain a very grave doubt whether having regard to the language of Section 26 of the Letters Patent a certificate ought to be granted by the Advocate-General in a case in which he thinks that a Judge of this Court sitting in the Original Criminal Jurisdiction of this Court has not properly exercise his judicial discretion during the trial of the case.... Under Section 26 of the Letters Patent it is not compulsory on the Court to deal with a certificate founded upon such a point.... Nor do I wish to be regarded as saying that an improper exercise of judicial discretion may not in certain cases be matter for review on a point of law.' These observations related to an application by the prisoner's counsel for an adjournment which was refused. Assuming that an erroneous exercise of judicial discretion in refusing an adjournment is matter for review as a point of law it is clear that a refusal would then be regarded as a decision on a question of law in a matter actually raised before the Court. The decision Empress v. Patrick Me Guire 4 C.W.N. 433 does not help us in a case where the point or points of law were not expressly raised before the judge. I do not suggest that the point or points of law should be raised by the parties. It may be raised by the judge himself either as a question to be discussed or raised by him in the course of his charge, to the jury in laying down the law. On this last matter it was agreed on all hands during the argument before the Full Bench that an erroneous laying down of the Saw by the judge in the course of his charge to the jury should be regarded as an erroneous decision on a point of law within the meaning of Clause 26 of the Letters Patent. Leaving such cases aside, the question arises whether when no point of law was raised before the judge it could still be said that there was an erroneous decision on a point of law simply because certain inadmissible evidence, to the admission of which no objection was taken, has been admitted or there has been a misdirection to the Jury on a question of fact. For the purpose of appeals under the Criminal Procedure Code it has always been held by the Indian High Court that a misdirection to the jury by the sessions judge on an important question of fact is a question of law within the. meaning of Section 418(1). Criminal Procedure Code. But the question before us now is whether such admission or misdirection can be regarded as a decision on a point of law by the trial judge within the meaning of Clause 26 of the Letters Patent. An objection that such admission or misdirection would not amount to a decision on a point of law was raised in Queen-Empress v. Shib Chunder Mitter I.L.R. (1884) Cal. 1079, Queen-Empress v. O'Hara I.L.R.(1890) Cal 642 , and Empress v. Patrick Me Guire 4 C.W.N. 433, but as pointed out by me in the above summary of those cases the objection was not express lydecided.

23. In Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, it seems to have been assumed that a misdirection on a question of law would be a ground for the Advocate-General's certificate and for the High Court's review but that a non-direction would not but there is no decision on the point.

24. In King-Emperor v. Peary and Lakshi Peshakar 23 C.W.N. 426 the standing Counsel took a preliminary objection that the Advocate-General has no power to grant a certificate on the ground of misdirection on a question of fact. Sanderson, C. J. observed as to this 'I express no opinion upon that point and in my judgment in this case it is not necessary to express an opinion because assuming that it was competent to the learned Advocate-General to grant a certificate on those grounds, I have come to the conclusion that there was no sufficient cause made for the Court to interfere.' Wood-roffe, J., expressed a similar opinion.

25. The decision in Emperor v. Fateh Chand Agarwalla I.L.R.(1916) Cal. 477 and Emperor v. Narayan Raghunath Patki I.L.R.(1907)Bom. 111 do not touch upon this point.

26. The last decision to be referred to in this connection is the decision of this Court in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 . The judgment of the majority of the Court was delivered by Wallace, J. This decision is undoubtedly against the Crown Prosecutor and in support of the accused and I understand that because the Crown Prosecutor had given previous notice that he intends to question the correctness of that decision a larger Bench has been constituted. Whatever may be the actual points that arose in that case, Wallace, J.'s observations certainly go to the full length of laying down that not only an erroneous exposition of the law to the jury but a misdirection on an important question of fact, improper reception of evidence, any irregularity in procedure whether such points were actually raised by the parties or by the judge or not and whether the reception of evidence or the irregularity in procedure is conscious or a mere slip, all these would justify the Advocate-General in granting a certificate under Clause 26 and would compel the Court on an application based on such a certificate to review the case. In other words every matter of the kind referred to would amount to a decision by the Trial Judge on a point or points of law. I do not think Wallace, J.'s observation 'No one has evidently ever thought of raising it before' is correct.

27. Now it seems to me that apart from the decision in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 I.L.R. (1890) Cal. 642 on which it is to some extent based, the other authorities referred to above do not really help us. The decision in Queen-Empress v. O'Hara I.L.R. (1890) Cal. 642 must be taken to have held that a reference by the judge in his address to the jury to matter which had been objected to and excluded from the evidence amounted to ' a decision on a point of law decided by the trial judge, though the learned judges do not say so expressly in so many words. In my opinion besides these two decisions there is practically no authority on the matter and though the question has been raised it was never expressly decided. It is now necessary to decide the point raised by the Crown Prosecutor.

28. Some reference has been made to us by both sides as to the origin of Clause 26 of the Letters Patent and its analogue in English Law. It corresponds to the fiat or writ of error of the Attorney-General. Whatever its origin may be, after 11 and 12 Viet., Ch. 73, Section 5 of which gave to the Queen's Bench jurisdiction to interfere on a writ of error by the Attorney-General, it seems to have been exercised in all cases where the Attorney-General thought that there was miscarriage of justice. It is not confined to any particular ground and the form of writ shows that no particular ground of law or fact need be stated by the Attorney-General. It simply ran ' Let there be a fiat ' or some words to that effect. If so, the Attorney-General's power of issuing a fiat bears no resemblance to the Advocate-General's certificate under Clause 26 of the Letters Patent. Under 5. 20 of the Criminal Appeal Act (7 Edward VII, Ch. 23) writs of error were abolished. Under Section 3 of this Act an appeal was given on a question of law or with the leave of the judge on a question of fact or a mixed question of fact and law or any other ground or with the leave of the Court of Criminal Appeal against the sentence. Under Section 4, the Court of Criminal Appeal may allow an appeal on the ground of any question of law or on the ground that there is a miscarriage of justice. Under Section 1, Clause 6 if the Director of Public Prosecutions or the Prosecutor or the defendant obtains the Attorney-General's certificate that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that a further appeal should be brought, he may appeal to the House of Lords. I do not think the analogy of English Law helps us in the construction of Clause 26 and the decisions in appeals under 7, Edward VII, Ch. 23 cannot afford any guide in the present case.

29. Now coming to the clause itself, the opinion of Wallace, J., that even a non-direction amounts to a decision on a point of law is opposed to the opinion of Westropp, C.J., in Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75 and his observation that misdirection on an important question of fact amounts to a decision on a point of law is opposed to the observation of Westropp, C.J., that the power under Clauses 25 and 26 of the Letters Patent is not so wide as the power which the High Court possesses in regard to appeals from the mofussil. If the interpretation of Clause 26 by Waliace, J., is correct, the ground for the certificate of the Advocate-General would be as wide as the grounds of appeal from the mofussil under the Criminal Procedure Code. But if this was the effect intended, it strikes one that the language of Clause 26 of the Letters Patent (leaving aside cases of reservation of points of law by the judge) would have been similar to Section 418, Criminal Procedure Code, and would not have run in the terms in which it now actually runs; and the wording of Clause 25, which is similar to Section 1 of 11 and 12 Viet., Ch. 7i in enabling the trial judge to reserve a point or points of law but otherwise provides that there is no appeal strikes one as rather curious after the wide interpretation of Clause 26, contended for by the accused.

30. The word 'decision' ordinarily means ' a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of an authoritative answer to the questions raised before it.' (Black's Law Dictionary, p. 337). It is true that a case of misdirection to the jury on a question of law may not in strictness be covered by this definition but one may say in a loose sense that a direction to the Jury is an authoritative answer on a point arising before the Judge. But leaving this case aside on which all are agreed I do not think that the word ' decision ' should be made to cover cases where the judge has never applied his mind to the matter and has not pronounced an opinion on it. It is true that under Section 298, Criminal Procedure Code, it is the duty of the judge to decide all questions of law arising in the course of the trial and all questions as to the relevancy of facts and the admissibility of evidence and the section says nothing about the question being raised by a party. It is somewhat difficult to say that if no one raises the question there is any question to be considered by the judge unless it suggests itself to him. It is true that under Section 165 of the Evidence Act the judgment must be based upon facts which are relevant under the Evidence Act; and if the Judge allows evidence to go in which is not relevant by not adverting in his mind to the question of its relevancy in cases where no objection is raised by the party, it may be that he commits an error of law. One may say that such an error is plainer in a case where the inadmissible evidence is actually referred to in the direction to the Jury than in a case where it has merely gone into the record but was not referred to in the direction to the Jury. But in both cases can it be said that there is a decision on a point of law? In the sense in which Wallace, J., uses the expression undoubtedly there is; but with great deference to that learned Judge I am unable to say that such cases should be described as cases of decision on a point of law. There may be a failure on the part of the trying Judge is not adverting to such matters in his mind but still it cannot be said to be a decision. What happens may be described to be an absence of a decision - just the opposite of what is required. On this ground I would say that the existence of a point of law decided by the Trial Judge which is the condition precedent to the Advocate-General's certificate being wanting in this case, the certificate is incompetent and confers no jurisdiction on us to review the case.

31. I would dismiss this petition.

Madhavan Nair, J.

32. [His Lordship set out the certificate of the Advocate-General and proceeded:]

33. To appreciate the points raised in the certificate, it is necessary to refer, though briefly, to some aspects of the prosecution case. The deceased Seethammal, a young woman of 22, left her husband's house on the 4th August, 1933. The case against the accused was that since that date she lived with him in various houses in Madras till the night of the 11th January, 1934, when she was strangled to death by him, that on the morning of the 12th January, he bought a coir mattress from one Sheik Nannu, the master of P.W. 10, had it carried to his house by a woman, Thayammal P.W. 11, that he put the body of the deceased in a parcel made of this coir mattress and sent it from the Egmore station to Karunguzhi on the South Indian Railway, and that between the 12th and the 21st January, he pledged with a pawn-broker various silver articles identified as her husband's and alleged to have been taken by her when she left his house. With respect to the purchase of the coir mattress, the accused is said to have made statements (see the certificate) while in the custody of the Police pointing out the shop from where and the man from whom he purchased the coir mattress and also the woman who carried it to his house. This evidence which has a material bearing on the guilt of the accused is stated to be inadmissible.

34. In the first part of the certificate objection is taken to the reception in evidence of statements made by the accused while in the custody of the Police - set out in the certificate and not objected to by the counsel, some of them being elicited by him in cross-examination of prosecution witnesses - and the placing of the same before the jury which are described as decisions on points of law. It may here be mentioned that what happened at the time of the trial was that the alleged inadmissible evidence was received into the record, and it was placed before the jury without any objection being offered to the same on behalf of the accused. As the certificate shows, some portion of this evidence was elicited by the Counsel for the prisoner in the cross-examination of the prosecution witnesses. In the second part of the certificate exception is taken to what is described as an error of law on the part of the learned Judge in not bringing to the notice of the jury the question whether in the circumstances they could draw a presumption under Section 114 of the Evidence Act as to the continued possession of the articles by the deceased, the circumstances and facts mentioned showing that there was a decision on a point of law by the learned Judge. These objections, says the certificate, are decisions on points of law which require further consideration in the judgment of the Advocate-General.

35. It will be observed that under Clause 26 of the Letters patent a certificate to review a decision by the High Court exercising original criminal jurisdiction can be granted by the Advocate-General if in his judgment there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or, a point or points of law which has or have been decided by the said Court should be further considered. The certificate may be granted in either of the two forms mentioned in Clause 26. It is interesting to note that in this Court certificates have been granted under this clause in four cases Subrahmania Aiyar v. King-Emperor (1901) L.R. 28 I.A. 257 : I.L.R. 25 Mad. 61 : 11 M.L.J. 233 (P.C.), Mulhukumaraswamy Pillay v. King-Emperor (1912) I.L.R. 35 Mad. 397 and C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 (F.B.) and the present one; and in all these cases except in Subrahmania Aiyar v. King-Emperor (1901) L.R. 28 I.A. 257 : I.L.R. 25 Mad. 61 : 11 M.L.J. 233 (P.C.) the certificates granted have been in the second form, i.e., that there is a point or points of law that should be further considered. A primary condition for the exercise of jurisdiction by the Advocate-General under Clause 26 is that there should be a decision of a point or points of law decided by the Court of original criminal jurisdiction.

36. By way of preliminary objection the learned Crown Prosecutor argues that the certificate is incompetent, as with respect to the first point raised in it there was no decision by the trial Court, and with respect to the second point, there was neither a point of law nor any decision on it. There can be no doubt that the erroneous reception of evidence is a point of law. The question therefore to be considered on the preliminary objection with reference to the first point is whether there are decisions by the Judge admitting the alleged inadmissible evidence, and placing the same before the jury; and with reference to the second point, both the questions have to be considered, - whether there is a decision, and if there is one, whether the point on which that decision has been given, that is, the mis-direction or non-direction complained of, is a point of law.

37. It was contended by the learned Crown Prosecutor that, in order to constitute a 'decision on a point of law decided by the Trial Court' within the meaning of Clause 26 of the Letters Patent, the point must be specifically raised and decided consciously and not inadvertently by the judge. Soon after the argument began this extreme contention was modified and it was said that a decision would include besides a decision on a specific point raised and decided by the Judge, also a direction as to the law given by the Judge in the course of his summing up to the jury, where, I must observe, admittedly no point of law is submitted to and decided by the Judge. Towards the close of his argument the learned Crown Prosecutor summed up his position thus: that, in order to constitute a decision on a point of law within the meaning of Clause 26 of the Letters Patent, there must be an express determination' by the judge on a point of law submitted for his decision, or a statement of the law while explaining it to the jury in which case it would be an expression of opinion, or in other words a decision by him as to what the law is. In other words, nothing short of an actual expression of opinion by the judge on a point of law would constitute a decision within the meaning of this clause, the implication being that, if in laying down the law, the judge should omit to mention some of the ingredients of an offence, the omission to mention the ingredients would not amount to a decision, while only the statement of the law would constitute the decision; the omission would only amount to an error in law and will not be a decision on a point of law. No authority was cited in support of the contention except the meaning of the word decision given in some of the well-known dictionaries such as the Oxford Dictionary, Stroud's judicial Dictionary, etc. On the question what is a point of law, it was submitted that it would not include such defects as material misdirection and non-direction in summing up the case to the jury, for example, failure to sum up, defective summing up, etc.

38. In thus interpreting the term 'decision on a point of law' the learned Crown Prosecutor calls into question some of the important observations made by Wallace, J., in his judgment in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 to which I, along with Jackson and Anantakrishna Aiyar, JJ., - Eddy, J., dissenting - was a party. It is conceded that the case was rightly decided by us as there was an error in the 'decision' as now explained by the learned Crown Prosecutor on a point of law decided by the trial Judge in that case, what is objected to being only certain general observations in the process of reasoning adopted by Wallace, J., with whom all but Eddy, J., concurred.

39. I will presently refer to these observations and the judgment in detail; but before doing so, I will deal with the arguments advanced by the learned Crown Prosecutor based upon the various clauses of the Letters Patent in support of his contention above stated. The clauses relevant for the purpose are Clauses 25, 26 and 41. These clauses run as follows:

40. Clause 25 : 'and we do further ordain that there shall be no appeal to the said High Court of Judicature at Madras, from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court'. Clause 26 has already been quoted. Clause 41: 'And we do further ordain that from any judgment, order or sentence of the said High Court of Judicature at Madras, made in the exercise of original criminal jurisdiction, or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court in manner hereinbefore provided, by any Court which has exercised original jurisdiction, it shall be lawful for the person aggrieved by such judgment, order or sentence to appeal to Us, Our heirs, or successors, in council, provided the said High Court shall declare that the case is a fit one for such appeal, and under such conditions as the said High Court may establish or require, subject always to such rules and orders as we may, with the advice of our Privy Council, hereafter make in that behalf.' Reading these clauses together it is argued that, in order to constitute a 'decision' within Clause 26, there should be a conscious decision on the part of the Judge and that a mere error in law, such as an omission to state all the ingredients of an offence in explaining the law to the jury or an erroneous reception of evidence without any express decision on it, should not be construed as a 'decision' on a point of law, as by so doing we will virtually be allowing an appeal while an appeal is specifically prohibited under Clause 25, regard also being had to the fact that in such a case, that is where there is only a mere error of law, the accused though he is deprived of the right of an appeal to the High Court is not without a remedy as he can prefer an appeal to the Privy Council as provided in Clause 41 of the Letters Patent. This argument when examined does not carry us very far. It only means that Clause 26 should be construed strictly; but it does not in any way mean that it should not receive its proper construction within its limits. Though the point involved is an error of law, yet, if it amounts to a ' decision ' on a point of law, then Clause 25 cannot prevent the accused from resorting to Clause 26. The question will always be whether there is an erroneous decision, on a point of law; if there is such an erroneous decision, then Clause 26 can be invoked. Clause 41 can have no bearing on the construction of Clause 26, unless it is shown that that clause and Clause 26 are mutually exclusive. It may be that on a decision involving an error in law the accused may have a right of appeal to the Privy Council under Clause 41, but observe that that right of appeal is subject to the condition that the High Court shall declare that the case is a fit one for an appeal; and, as is well known, such leave to appeal will not be granted except in very exceptional cases. See Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75 . In this connection see also the observations of the Privy Council in Barendra Kumar Ghosh v. Emperor' , wherein their Lordships say that they do not give any encouragement to appeals in criminal matters under Article 41 where no point of law has been reserved by the Judge. Further, the fact that he may have a right of appeal under Clause 41 cannot prevent him from claiming relief under Clause 26 if the error involves a decision on a point of law. Similarly, in a case in which there is an express decision by a judge on a point of law, there is nothing to prevent the accused from resorting to Clause 41 instead of applying under Clause 26. 1 am not satisfied that Clauses 26 and 41 of the Letters Patent are mutually exclusive. In my opinion, neither Clause 26 nor Clause 41 helps us in determining the meaning of the term decision in Clause 26.

41. Reference was made to Sections 1 and 2 of the Crown Cases Act 1848 (11 and 12 Vic, Ch. 78) and also to the nature of the 'fiats' for writs of error used to be issued by the Attorney-General in England in olden days before such fiats were abolished by the Criminal Appeal Act, 1907 (7 Ed. 7 Clause 23) to explain the scope of Clause 25 and Clause 26 of the Letters Patent. It is generally slated that Sections 1 and 2 of the Crown Cases Act formed the model for Clauses 25 and 26 of the Letters Patent. After stating in Section 1 that the Judge or Commissioner or Court of Quarter Sessions before whom a case is tried may reserve any ' question of law ', Section 2 of the Act states that the authority concerned ' shall thereupon state in a case signed in the manner now usual, the question or questions of law which shall have been so reserved with the special circumstances upon which the same shall have arisen and such case shall be transmitted to the said Justices and Barons and the said Justices and Barons shall thereupon pass orders such as those mentioned in the section. As pointed out in Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, to a considerable extent the provisions of the Act resemble the provision in 25th clause of the Letters Patent, but as to the 26th clause empowering the Advocate-General to certify a question of law there is not any corresponding section in the statute 11 and 12 Vic. Ch. 78. As observed by Sir Arnold White, Chief Justice, in Subrahmania Aiyar v. King-Emperor , a power to review the case with reference to the evidence given to the High Court under Clause 26 of the Letters Patent is altogether absent in Section 2 of the Act and in it there is also no reference to any certificate by the Attorney-General, such as the Advocate-General's certificate contemplated by Clause 26 of the Letters Patent. If the 'fiats' used to be issued by the Attorney-General were restricted in their scope as being confined to errors apparent on face of the record, it has to be admitted that the power of the Advocate-General to grant certificates is wider as he can examine the evidence and find out whether there is any error in the decision on a point of law decided by the trial Judge. In my opinion, neither the Crown Cases Act nor the nature of the fiats issued by the Attorney-General helps us in determining the significance of the expression 'error in decision on a point of law' in Clause 26.

42. It was next argued by the learned Crown Prosecutor that the point of law with respect to which the Advocate-General certifies there is an error must be a point such as can be reserved by a Judge under Clause 25 as both are referred in the same connection in Clause 26 as grounds for asking the High Court to review the case. Having regard to the language of Clause 26 this argument cannot, in my opinion, be accepted. This question has already been dealt with in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 in the following manner and I have nothing to add to it:

It was next argued that the point of law on which the Advocate-General certifies an error in the decision thereof must be such point as has been reserved under Clause 25. This we cannot accept. Clause 26 does not say in that context 'such point' but' a point' as contrasted with ' such point' ' reserved as aforesaid ' under Clause 25.

43. Thus far, I have dealt with the general arguments advanced by the learned Crown Prosecutor. No authority has been cited to show that the term ' decision ' in Clause 26 should be limited to actual expression of opinion by the judge on a point of law and should not be extended to what may be called decisions by implication having regard to the trial and the circumstances in which the point arises for determination.

44. I shall presently show when I refer to in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 that a decision on a point of law within Clause 26 is not confined to a conscious or considered decision by the judge but also include an implied decision though inadvertent, and further, an error of law would also amount to a decision on a point of law within the meaning of Clause 26. In my opinion, the word ' decision' in Clause 26 has not been used by the legislature in any technical or abstract or literal sense. It was, I think, intended to be interpreted in the light of the conduct of the trial. What that interpretation should be would appear when I deal with the learned Crown Prosecutor's arguments with reference to the decision in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 which I now proceed to do.

45. The facts of that case may be stated very briefly. The first accused in the case was convicted on the third count, one of cheating. The charge against him was that by statements in his trust bond Exhibit A that he was in absolute control and possession of 4,000 bags of groundnut, the accused intentionally and dishonestly deceived the Central Bank and induced them to enhance his overdraft limit which resulted in damage or loss to the bank. In explaining the law of cheating to the jury the learned judge, after referring to the section which described the ingredients of the offence, told them that if they were satisfied beyond all reasonable doubt 'that he (the first accused) told a lie and thereby induced the bank to enhance the overdraft limit the offerice of cheating is complete'. In the judgment all the specific portions in the learned judge's charge to the jury which bear on this matter have been extracted. It will be found from those extracts that the learned judge did not mention to the jury that they must find as a fact that the bank suffered or was likely to suffer loss if the accused was to be convicted of cheating; that is to say, in his charge he did not refer to the last ingredient of the offence. This was referred to as a defective direction by the learned judge to the jury as to the ingredients they had to find proved before they could convict on the count of cheating, particularly the question of damage. On this point, after referring to the definite directions to the jury given by the judge with regard to the necessary ingredients, Wallace, J. stated.

These are very definite directions to the jury and therefore decisions on this point of law. I think there is disclosed here a very serious misdirection on this point of law, namely, that the jury were not further directed that they must before they could convict be satisfied that the bank suffered loss or was likely to suffer loss by such enhancement.

46. Then the evidence bearing on the question of loss was referred to and finally it was pointed out ' that the jury was never invited to find what was the damage suffered or likely to be suffered by the bank and was never warned that it was necessary for the prosecution to establish such damage'. We felt this omission seriously prejudiced the accused and if it had not occurred he would have been acquitted by the jury. The question we had to consider was whether in these circumstances there was a decision by the learned judge on a point of law.

47. On the above point we were asked to hold that ' decision ' is restricted to matters actually stated at the Bar for the direct decision by the Court. We overruled this argument and held that it would include matters decided or which fall to be decided by the trial Court. It is the latter part of our conclusion and the reasons given for it that are now attacked by the learned Crown Prosecutor. As pointed out at the commencement, he first wanted to maintain the position that the word ' decision ' is restricted to matters actually stated at the Bar for the direct decision of the Court--as was argued on the last occasion by the then Crown Prosecutor'--but this position he gave up. Then he stated that the erroneous statement of the law made by the judge is the 'decision' and his omission to state the necessary ingredient was merely an error in law and not a decision by itself. The reasoning given in the judgment which was attacked runs as follows:

The word ' decision' is not restricted to matters actually stated at the Bar for the direct decision of the Court. It includes all matters decided or which fall to be decided by the trial Court in the case. The trying judge in his judgment or in his charge is continually making decisions. These include his conclusions arrived at and stated, whether right or wrong; they also include what he does not state, since a decision not stated is equally a decision. It seems absurd to argue that a judgment which stated nothing or stated nonsense would not be a decision. The judge in his judgment or charge as read or pronounced is deciding all the time. For example, if he omits altogether to sum up the law, he has decided that it is not his duty to sum it up. If he admits and discusses certain evidence, he has decided to admit it even though neither party raised the question of its admissibility. If he states that the defence case is so and so, he has decided that it is in fact so and so. Clearly the word ' decision' includes every mental conclusion on which the judgment or charge is based, whether stated or not stated, whether stated correctly or misstated. It includes directions, misdirections, or non-directions to a jury. If this is not so, then, even if the judge entirely disregards the law, if he omits to sum up, or refuses to sum up, either on the law or on the facts, if he refuses to decide the point specifically put up to him, the accused has no remedy.

48. The position explained in this passage was subjected to a searching criticism. The points of criticism covered a vast field, both psychological and legal, that it is difficult to deal with all of them; but two questions of a fundamental nature were asked in the course of the arguments, viz., (1) how can it be said that the judge has passed a decision on a particular point if the point was never present to his mind, when he did not even consider it? (2) how can it be said that when a judge has omitted to refer to a point in his exposition of the law he has decided not to state it? In my opinion, these questions have to be considered with reference to the duty of a judge presiding over a criminal trial. Those who press for a narrow construction of the term decision forget this altogether or do not realise sufficiently its importance. The duty of a Judge in a trial with jury is defined by Section 297 of the Code of Criminal Procedure and is further elaborated under Section 298. This section which applies to the High Court also, says amongst other things that in cases triable by jury it is the duty of the Judge to ' decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to prove, and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties '. It may be mentioned that the discretion referred to herein according to the decisions does not relate to the admissibility of evidence, but only to the production of inadmissible evidence. At each moment, as the trial goes on and evidence is adduced the judge is expected to be considering in his mind questions, such as, which evidence is admissible and which is not, which evidence is relevant, etc. One is quite familiar with questions from the Bench when inadmissible evidence is adduced - How is that evidence relevant? How is it admissible? Very often counsel take the objections; but it is not unusual for a judge himself to take the objection and exclude the evidence when he finds that it is not admissible. No doubt, it sometimes happens that by inadvertance no objection is taken either by the counsel or by the judge or it is taken somewhat late and inadmissible evidence, as a result, creeps in, passing the barrier of the counsel and the judge; but is this a reason for saying that there has been no ' decision ' by the judge when that particular evidence gets into the record? I think not. While I am on this point I may just mention that the duty of the Judge to make proper decisions when inadmissible evidence is admitted or is read out to the jury should be considered apart from the failure of the prisoner's counsel to take the necessary objection at the proper time. This point will be considered in greater detail when I specifically deal with the first point in the certificate in which one of the questions raised is ' whether the fact that no exception was taken to the reception of this evidence during the trial and the fact that some of these statements were elicited by counsel for the accused during the cross-examination of prosecution witnesses affects the point as to their admissibility'. I think that all questions which have to be necessarily decided in a trial and which in effect have been decided by the judge, though not expressly, would fall within the meaning of the word 'decision'. If the 'decision' under Clause 26 is confined to express or considered decisions the result would be this: On a considered decision of the judge on a point of law which happens to be erroneous the Advocate-General can certify and bring the matter up for review by the High Court under Clause 26, while with respect to the same point, if it be only an inadvertent error of law committed by the judge which comparatively speaking is a much less serious mistake on his part, neither the Advocate-General nor the High Court has got any power to correct it; and the accused has got to go to the Privy Council under Clause 41 to get relief. I do not think such a result would have been contemplated by the f ramers of the Letters Patent. In my opinion the words 'decision' and 'decided' in Clause 26 should be liberally construed. The expression 'point or points of law decided' is used simply in contra distinction to 'points of law, reserved' occurring in the earlier part of the clause. As mentioned by Wallace, J., 'decision' would include all matters decided or which fall to be decided by the trial Court;' or, in other words, matters which were not explicitly but only tacitly decided would also fall within the meaning of the word. Let me make myself clear on this latter point. It was pointed out by Wallace, J. that the omission on the part of the Judge in not mentioning to the jury one of the ingredients of the offence and that R they must be satisfied before convicting the accused that the bank suffered loss or was likely to suffer loss was a decision. The learned Crown Prosecutor says that this no doubt was an omission but it is only an error of law and the decision of the judge is that part of the law which he expounded to the jury and does not include what he has not told them, though both formed parts of the same question which he was expounding to the jury. The distinction which he seeks to make appears to me to be without any foundation. The question is one of substance and not of form. The omission to state one of the ingredients of the offence is as much a decision as the decision which stated the other ingredients. I think the difficulty cannot be got over by calling the one an error in law and the other an express decision. In the concluding portion of the extract quoted above, Wallace, J., says that ' decisions' include ' directions, misdirections or non-directions to a jury. If this is not so, then, even if the judge entirely disregards the law, if he omits to sum up, or refuses to sum up, either on the law or on the facts, if he refuses to decide the point specifically put up to him, the accused has no remedy'. The learned Crown Prosecutor says these are all errors of law and not 'decisions', and it is not right to say that with respect to such errors, committed by the judge the accused has no remedy and must resort to Clause 26, because he can make them grounds of appeal to the Privy Council under Clause 41 of the Letters Patent. As I have already pointed out, Clause 41, can have no bearing on the question.

49. Section 165 of the Indian Evidence Act has also a very important bearing on the question as to what amounts to a 'decision.' After referring to the judge's extensive powers to put questions or order production of documents, the section enacts that these are subject to the proviso ' that the judgment must be based on facts declared by this Act to be relevant and duly proved'. If evidence irrelevant or inadmissible has been placed before the jury, can it not be said that he decided to place that evidence before the jury, as otherwise he will not have put it before them and that therefore there was a 'decision' by him that the evidence should be put to the jury? That there was a decision by him is shown by his act of putting the evidence before the jury. This aspect of the question will be considered in its relation to the facts of the present case when I deal specially with the points raised in the certificate.

50. Two other points of criticisms directed against this part of the judgment may now be mentioned. With reference to the point raised by the Crown Prosecutor that in order that there may be a. decision, the point of law must have been specifically put up and decided as a point of law, Wallace, J., says in his judgment, ' no one has evidently ever thought of raising it before'. It is said that the learned judge is wrong in making this statement. No doubt the point was raised in some cases in the Calcutta High Court Queen-Empress v. Shib Chunder Mitter (1884) I.L.R. 10 Cal. 1080, Empress v. Patrick McGuire (1900) 4 C.W.N. 433, King-Emperor v, Peary and Lakshi Peshkar (1919) 23 C.W.N. 426 and also in Reg v. Pestanji Dinsha (1873) 10 B.H.C.R. 75 - but in none of the cases was the point decided by any learned judge. Queen-Empress v. O'Hara (1890) I.L.R. 17 Cal. 642, another case in which also this point was raised, may in my opinion be taken to have decided that placing before the jury of inadmissible evidence is a wrong decision on a point of law, whether the same was objected to by the counsel for the accused or not. It may be observed that no objection was taken to either of the statements when they were placed before the jury. The learned judges observed at page 667, ' These statements could not, we think, be laid before the jury, they had already or one of them been tendered and objected to and not put in. We think that to lay before the jury these statements not admitted nor admissible in evidence was in itself a decision erroneous in point of law calculated to prejudice, the person on his trial.' I may here remark that the decision in The Queen-Empress v. O'Hara I.L.R.(1890) Cal. 642 was referred to by Abdur Rahim, J., in Muthukumarasami Pillai v. King-Emperor I.L.R.(1912) Mad. 379 as having held 'that the language of Clause 26 was wide enough to extend to cases where what is complained of involves a violation of the law or a failure to give effect to the injunctions of law'. The learned judge observed referring to Queen-Empress v. O'Hara (1890) Cal. 642 that in that case ' a question was raised whether the words of Article 26 'an error in the decision of a point or points of law decided by the Court of Original Criminal Jurisdiction' are to be understood in a strictly literal sense as being applicable only to cases in which certain questions of law have been expressly raised and decided at the trial, and it was held that the language was wide enough to extend to cases where what is complained of involves a violation of law or a failure to give effect to the injunctions of law. There can be no doubt in my opinion that this interpretation of Article 26 is correct and it has not been contended otherwise in the present case '.

51. Then it was said, having regard to the last sentence in the paragraph I have quoted from Wallace, J.'s judgment, that the learned trial Judge's consideration of the question is defective as he did not realise that the accused has a remedy in the circumstances, that remedy being the appeal provided for under Clause 41. I have already shown that Clause 41 has no bearing on the point under consideration.

52. By way of analogy I will now refer to a few cases decided by the Court of Criminal peal in England from which we can inferentially gather as to what that Court must have understood as the meaning of the term 'decision' in the expression ' a wrong decision on any question of law' occurring in Section 4, Clause 1 of the Criminal Appeal Act, 1907, though it did not in anyway attempt to define or interpret it. Under Section 3, Clause (a) of that Act, a person convicted on indictment may appeal to the Court of Crimial Appeal ' against his conviction on any ground of appeal which involves a question of law alone'. Clauses (b) and (c) deal with other grounds of appeal. Section 4, Clause (1) says, 'The Court of Criminal Appeal, on any such appeal against conviction, shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law' (the italics are mine) ' or that on any ground there was a miscarriage of justice; and in any other case shall dismiss the appeal'. It is not necessary to refer to the proviso to this clause or the other provisions of the section for our present purpose. Under this section the Court of Criminal Appeal can set aside a conviction by the lower Court amongst other grounds ' on the ground of a wrong decision on any question of law'. The expression used in Clause 26 of the Letters Patent is ' error in the decision of a point or points of law....'

53. In Russel on Crimes, Vol. II, page 1848, under the heading: 'Wrong decision on any question of law', the learned author says, ' where the Court comes to the conclusion that the judge of the Court of trial has wrongly decided a question of law, the. Court will quash the conviction unless it can hold that the wrongful decision cannot reasonably be said to have materially affected the verdict'. Then instances of cases where the conviction by the lower Court was challenged on the ground that evidence was wrongly admitted are given in the foot-note. Of these, two cases, (1) R. v. Fisher (1910) 1 K.B. 149 and (2) R. v. Norton (1910) 2 K.B. 496 , may be referred to with advantage. R. v. Fisher (1910) 1 K.B. 149 was a case where inadmissible evidence was admitted at the trial. Nothing is stated in the report as to whether objection was taken to its admissibility.

54. The conviction by the lower Court was set aside by the Court of Appeal on the ground that inadmissible evidence was admitted. The Court evidently thought that there was a wrong decision on a question of law, the question of law and the decision being the reception of inadmissible evidence. I must point out that there is nothing discussed in the judgment as to whether there was a decision by the trial Court on a question of law. The next case, R. v. Norton (1910) 2 K.B. 496 is more interesting and more relevant for my present purpose. That was also a case where a conviction by the trial Court was challenged on the ground that inadmissible evidence has been wrongly admitted. In the course of the judgment it is stated at page 449, last paragraph, ' No objection was taken in this case to the admission of the statements in the evidence....' The conviction was set aside under Section 4, Sub-section (1) of the Court of Criminal Appeal Act of 1907. Evidently the learned judges must have thought that the admission of the evidence which they held to be inadmissible was a wrong decision on a question of law within the meaning of the statute. Here again I must say that the judgment does not contain any discussion of the question as to whether there was a decision. Evidently it must have been taken for granted that there was a wrong decision of a question of law when the inadmissible evidence was admitted, though without objection. Apart from the reasons which I have already given, I think on the analogy of these cases also we may well hold that in Clause 25 of the Letters Patent the admission of inadmissible evidence would amount to an error in the decision of a point of law, the point of law and the decision on it being the reception of inadmissible evidence.

55. The next point of attack was directed against Wallace, J.'s consideration of the scope of the words 'point of law'. The learned judge stated that there was no real distinction between the 'point of law' in Clause 26 and what is called 'matter of law' in Section 418 of the Code of Criminal Procedure and came to the conclusion that 'such misdirection or non-direction as would permit an appeal against a verdict of a jury would come within the meaning of the words 'point of law'. Such misdirections, according to decisions, would include 'not only an error in laying down the law by which the jury are to be guided but also a defect in summing up the evidence, or in not summing it up, or in summing it erroneously, which may often prejudice the accused more than not summing at all.' The learned Judge pointed out that all such misdirections or non-directions would amount to points of law under Clause 26 of the Letters Patent and the Advocate-General might give a certificate when there is a 'decision' with respect to such points in the trial Court's charge to the jury. In the course of his discussion he pointed out that misdirections and non-directions as explained above would constitute errors in laying down the law under Section 297 of the Code of Criminal Procedure which applies to the High Court as well as to the mofussil Courts. Section 297, Criminal Procedure Code says that ' in cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided.' The reference to Section 297 is only for this reason that, whatever would be considered having regard to Section 297 of the Code of Criminal Procedure as mistakes on matters of law when they arise in connection with the mofussil sessions Courts, should also be considered as mistakes on points of law if committed by the High Court and would be points of law for the Advocate-General to consider under Clause 26 of the Letters Patent. This process of reasoning was resorted to for the reason that the expression 'point of law' is not defined or explained anywhere so far as he knew, while what would amount to 'a matter of law' appears from various decisions under Section 418, Criminal Procedure Code. Now the criticism levelled against the above reasoning of the learned judge, as I understand it, is this. Section 418, Criminal Procedure Code refers to what matters are admissible in an appeal to the High Court from a trial held by the sessions Court. The learned judge in discussing the question what is a point of law shows, by his reference to this section, that he is considering the question from the standpoint of an appellate Court, i.e., as if an appeal lay to the High Court from a trial held by the Court exercising original criminal jurisdiction, while such a standpoint is not permissible as no appeals are allowed to the High Court in criminal cases under Clause 25 of the Letters Patent. In my opinion this criticism is beside the point. The learned judge is only trying to explain the scope of the expression 'point of law' appearing in Clause 26 of the Letters Patent. It is conceded that no case thus far decided has explained what it is. He finds that an expression very similar to it, 'matter of law', is used in Section 418, Criminal Procedure Code and he thinks that what would be a matter of law as used in that section may well be taken to be a point of law under Clause 26 as well. I do not think that the learned judge, in saying that a point of law under Clause 26 would mean the same thing as a matter of law under Section 418, Criminal Procedure Code has in any way overlooked Clause 25 of the Letters Patent, which says that there shall be no appeal to the High Court from the decision of the trial judge. It must be noted that it is only when the Advocate-General certifies that there is an error in a decision on a point of law that the accused can claim relief under Clause 26. This limitation is pointed out by the learned judge in the judgment. In Muthukumaraswami Pillai v. King-Emperor' I.L.R. (1912) Mad. 397 at 469 Abdur Rahim, J. says this: 'Now, whether the High Court exercises its powers as an appellate Court under S.417, (this is obviously a mistake for 418) Criminal Procedure Code, in cases tried by a jury or as a Court of error under Article 26 of the Letters Patent, in either case it can interfere only when the trial is vitiated by an error in law and there is no substantial difference in the conditions of interference in the two cases'. In The Queen-Empress v. O'Hara I.L.R. (1890) Cal. 642 'referring to an omission by the judge to advise the jury according to the rule contained in Section 114, illustration (b) of the Evidence Act that an accomplice is unworthy of credit unless he is corroborated in material particulars' the learned judges say, 'Having regard to the courses of decisions in this Court (although no doubt those decisions were, as pointed out in the Bombay case referred to, come to in appeal from the mofussil, we are not prepared to say that this Court might not feel bound, even on the ground of such an omission alone, to review the case under Clause 26 of the Letters Patent. This difficult question, however, need not be decided in the present case'. Observe that the inference that the omission may, if necessary, be treated as a decision on a point of law is drawn from cases which went up in appeal to the High Court from the mofussil.

56. I think that The Queen-Enipress v. O'Hara (1890) Cal. 642 is also an authority for the position that a misdirection in fact which is material can amount to a decision on a point of law under Clause 26 of the Letters Patent. In that case the judge charged the jury that they were not to convict upon the evidence of 'G' if satisfied that he was an accomplice and uncorroborated, but coupled the direction with a strong expression of opinion that 'G' was not an accomplice. It was held that this 'was not an omission only but an affirmation' and that 'it constituted a misdirection in fact though not in form' calculated to prejudice the prisoner's case. In Reg v. Pestanji Dinsha (1873) 10 B.H.C.R. 75 Westropp, C.J. is of opinion that non-direction will not amount to misdirection, but it may be observed that the learned Judges also dealt with the case assuming that the non-direction in that case would amount to misdirection. In my opinion a material non-direction which would prejudice the accused would also amount to a misdirection and would be a wrong decision on a point of law. A non-direction to be a misdirection in law should be such as will be sufficient to cause the Court to quash the conviction if it comes to the conclusion that it is reasonably probable that the verdict of the jury was affected thereby. (See the remarks of Mookerjee, J. in The King-Emperor v. Barendra Kumar Ghose 28 C.W.N. 170 at 199.) Such a non-direction will be a decision on a point of law on which the Advocate-General can certify under Clause 26. On the point under consideration this is all what Wallace, J. says in his judgment. The decision in Emperor v. Narayan Raghunalh Patki (1907) 32 Bom. 111 does not help us in determining the meaning of the expression 'decision on a poin of law'. After a careful consideration of the arguments advanced I have not been persuaded that our conclusions on what is meant by a 'decision on a point of law' under Clause 26 in C. K. N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 are wrong or unsound. It is unnecessary to restate those conclusions.

57. I will now pass on to the certificate of the Advocate-General and examine whether the points raised in it amount to 'decisions' on points of law decided by the trial judge. The first point, as already stated at the commencement, relates to the reception of the alleged inadmissible evidence and the placing of the same before the jury. It is argued that the statements referred to in the certificate led to the discovery of no material object and are at the most some information to the Police and are not admissible either under Section 27 of Section 8 of the Indian Evidence Act or any other provision of law. There can be no doubt that the question raised is a point of law. The more difficult question is whether it can be said that the learned judge has passed any 'decision' when the statements were received in evidence in the course of the trial and when they were placed before the jury. I have already pointed out in discussing the meaning of the term ' decision' that, when inadmissible evidence is admitted, though no objection is taken and no ruling is given by the judge, it should be understood having regard to his duties that the learned judge has decided to admit the evidence and so there is a 'decision' within the meaning of Clause 26 of the Letters Patent. The facts that no objection was taken to the reception of this evidence during the trial and that some of the statements were elicited by counsel for the accused during the cross-examination of the prosecution witnesses do not in my opinion affect the point as to their admissibility, nor do they affect the point whether the reception amounted to a 'decision' within the meaning of Clause 26. It seems to me that those questions should be considered apart from the conduct of the counsel, though his conduct cannot be ignored when questions of a different kind arise. That the counsel failed to take objection, cannot on principle be a ground for holding that what would have been a decision if he had objected is not a decision because he did not object and get a ruling from the judge. Nor can it be said that what is inadmissible evidence is rendered admissible because he did not object at the proper time. In the Queen v. Gibson, (1887) 18 Q.B.D. 573 inadmissible evidence was admitted without objection from the counsel and in summing up the jury's attention was directed to this evidence. After the jury retired, the prisoner's counsel took exception to the evidence that was admitted. In setting aside the conviction, Mathew, J., made the following observation : 'We have to lay down a rule which shall apply equally where the prisoner is defended by counsel and where he is not. In either case, it is the duty of the judge to warn the jury not to act upon evidence which is not legal evidence against the prisoner'. In the same case Wills, J., observed : 'I think no reasonable fault can be found, with the prisoner's counsel for assuming that the chairman would give a proper direction to the jury, but I agree that the course taken by the counsel has no bearing upon the question before us. If a mistake had been made by counsel, that would not relieve the judge from the duty to see that proper evidence only was before the jury. It is sometimes said--erroneously as I think - that the judge should be counsel for the prisoner; but at least he must take care that the prisoner is not convicted on any but legal evidence.' I think these observations which were made with reference to the summing up may also be applied to the stage of the case when inadmissible evidence is admitted without objection. In Rex v. Bridgwater (1905) 1 K.B. 131 the prisoner was asked by the counsel for the prosecution, 'have you ever been convicted?' and replied 'yes, Sir, I have'. After this question was answered without any objection from the prisoner's counsel, the prisoner was asked a further question as to the nature of the offence for which he had been convicted. This question was objected to by the Prisoner's counsel. The learned Recorder in his summing up did not warn the jury that they were to disregard the prisoner's answer as to his having been previously convicted. In the course of the judgment, Lord Alverstone, C.J., (with whom Lawrence, Kennedy, Ridley and Channel, JJ., concurred) after pointing out that the counsel cannot stand aside and allow an improper question to be put and afterwards rely upon the question as a ground for quashing the conviction, set aside the conviction as the Recorder did not tell the jury that they were to disregard the prisoner's answer about his previous conviction. In the concluding sentence of the judgment, His Lordship observed: 'and therefore the question ought not to have been put; and as it was put, and the jury were not cautioned to disregard the answer, the conviction cannot stand and must be quashed.' This would show, that, though the counsel did not take the necessary objection, the Court should not have allowed the question to be put and should not have put that evidence before the jury. I am not now concerned with the question, what bearing the counsel's conduct in not taking objection as on his right to insist that the conviction should be set aside on account of the inadmissibility of the evidence. What I wish to emphasise is only this: That his conduct in not taking objection at the time when the evidence was admitted has nothing to do with the duty of the Judge to see that only legally admissible evidence is admitted. This I think is made clear from the remark that 'the question ought not to have been put'. That what I have stated above is the correct position appears to be clear from the judgment of the Court (Lord Alverstone, C.J., Jelf, Bray, A. T. Lawrence and Lord Coleridge, JJ.) read by Bray, J., in Rex v. Ellis (1910) 2 K.B. 746. In this case the appellant, while being examined on his own behalf, gave evidence inadmissible in law under Section 1, Clause (f) of the Criminal Evidence Act, 1898, during the course of his Cross-Examination. After some portion of the evidence was elicited, the appellant's counsel interposed with the objection that the cross-examination was irrelevant. The objection was overruled and the cross-examination proceeded. In the course of judgment the learned judges after stating that the Court 'must be careful in allowing appeals on the ground of the reception of evidence that ought not to have been admitted when no objection has been made at the trial by the prisoner's counsel' and that 'objection was taken though not at the earliest opportunity', observed, 'In our opinion it is the duty of the judge not to wait for any objection from the prisoner's counsel, but to stop such questions himself, and if by mischance the question be put, it is equally the clear duty of the judge to direct the jury to disregard it and not let it influence their minds'. If I may say so with very great respect, those observations which are of general applicability sum up the position which I should like to emphasize. I also venture to think that the position would be the same if by mistake some of the statements were elicited in cross-examination by the counsel for the accused. These cases show that the inadmissible evidence which has been admitted remains inadmissible notwithstanding the fact that it was not objected to by the counsel at the time of its reception or at the time when it was placed before the jury. In the case before us the alleged inadmissible evidence was admitted, and it was also read out to the jury without any warning to disregard it. In his charge (see p. 261) my Lord the Chief Justice told the jury that 'the evidence is that accused came to the shop in a motor car, got out and pointed out to the Police 'this is the shop, this is the man, and this is the cooly woman who carried the mattress''. With the greatest respect, is it wrong to say that, unless the learned judge had decided in his mind that this particular evidence should be put before the jury, he would not have read it out to them? The objection urged is that my Lord did not think about the question at all, nor did anybody bring the point lo his notice. As already pointed out, in the light of Section 298 of the Criminal Procedure Code and Section 165 of the Indian Evidence Act, this objection can have no force. On both the occasions I must hold for the reasons already given and also on the analogy of the English cases under the English Criminal Appeal Act that 'decisions' were made by the learned judge on a point of law, the second occasion being the stronger instance of a decision than the first inasmuch as he specifically put before the jury the inadmissible evidence for their consideration. Whether the jury would have convicted the accused if this alleged inadmissible evidence had not been admitted or put before them is not a matter on which I can express any opinion as the case was not argued before us on the merits. In my opinion the certificate granted by the Advocate-General is competent with respect to the first point mentioned in it.

58. The second point raised in the certificate relates to the omission on the part of the learned trial judge in not directing the attention of the jury to the question as to the continued possession of the articles (subsequently pledged by the accused) by the deceased down to the date of her death from the 17th December. Having regard to the plea of the accused in his statement that the properties belonged to him and not to the deceased, the question of continued possession of the articles by the deceased down to the date of her death did not, in my opinion, arise for consideration. The only question put in issue between the parties was whether the articles belonged to the deceased or whether they belonged to the accused. If they belonged to the deceased the pledging of them by ;he accused immediately after her death would require explanation; if they did not, no explanation is called for. As pointed out by Jenkins, C.J., in Emperor v. Upendra Nath Das (1914) 21 C.L.J. 377, 'the duty of the judge is (in my opinion) to lay down the law in reference to the case presented to the Court and the facts of the case, and not to perplex the minds of the jury with considerations that are outside the legitimate scope of the enquiry. It is, I think, the duty of the judge to keep the jury within proper limits, and for this purpose, to simplyfy as far as he can the issues fairly and properly before the Court, and direct the minds of the jurors to those issues and those issues alone'. The question of continued possession not arising in the case having regard to the plea of the accused, there was no need to direct the jury with respect to it. I therefore think that the Advocate-General was not justified in saying that the point required further consideration.

59. The last argument of Mr. Sastri was that the AdvocateGenerars certificate cannot be reviewed by this Court, that is, that, if the Advocate-General grants a certificate, then this Court has no jurisdiction to say that the certificate is incompetent either on the ground that there is no decision or that there is no point of law; and that its only duty is ' to examine the matter'. The explanation as to what he meant by the latter statement was not satisfactory. At one stage he said that it was open to us to consider the question whether there was a decision on a point of law but that this should be considered not as a preliminary question but in the course of the case after hearing the evidence. Thus stated, the argument loses much of its importance and reduces itself to this, namely, whether it is competent to the learned Crown Prosecutor to raise the point by way of preliminary objection, that is, whether the counsel for the prisoner should not begin in the first instance opening the case as a whole, leaving it to the Court to decide the question in the course of the case. But later on, after he took time to consider, the learned Counsel modified his position, and 1 understood him finally to say that our duty is to examine the case on the assumption that there is a decision on a point of law, because the Advocate-General 'in his judgment' has said so when he granted the certificate, and that we have power only to examine whether there is 'error' in the decision on the point and then deal with the case in the manner indicated in the clause. This would show that we cannot at any stage, either at the beginning or in the course of the case, hold that the certificate is incompetent but must hear the case if the Advocate-General certifies that in his judgment there is an error... consideration.

60. The basis of the argument is that the Advocate-General in India occupies a position similar to that of the Attorney-General in England--see Section 114 of the Government of India Act - and that, in the case of the latter officer, fiats for writs of error used to be issued by him in days prior to the passing of the Criminal Appeal Act were not open to review by the Court and that the same is the case with regard to the certificates he is entitled to issue under the Act. In this connection our attention was invited to the constitutional position and powers of the Attorney-General in England as explained in decisions such as Ex parte Newton (1855) 4 El. And Bl. 870 : 119 E.R. 323, Ex parte Lees (1860) El. Bl. And El. 827 : 120 E.R. 718, and Reg v. Comptroller-General of Patents (1899) 1 Q.B. 909 and also to the history of the 'Writs of Error' given in Stephen's History of the Criminal Law of England, Vol. I, page 808. One case which was specially referred to is the decision in Thompson v. The King (1918) A.C. 221. Under Sub-Section 6 of Section 1 of the Criminal Appeal Act, if the Attorney-General certifies that 'the decision of the Court of Criminal Appeal involves a point of law of exceptional importance and that it is desirable in the public interest that a further appeal should be brought' an appeal is allowed from that decision to the House of Lords. In the case just mentioned, Lord Sumner, after remarking that 'no point of law of exceptional importance arose in it' and that 'I cannot help regretting that it should have been thought to be desirable in the public interests that a further appeal should be brought' observed that 'that the certificate of the Attorney-General which is the condition precedent to an appeal to your Lordships' House from a decision of the Court of Criminal Appeal is granted in his discretion and is a subject neither of review nor of criticism, But I hope that other persons in like position to the appellants will not be encouraged by this case to attempt to obtain such a certificate on similar grounds'. Though the certificate was thus found to be incompetent, the case was heard and disposed of not on any preliminary ground. The House of Lords, holding that the alleged inadmissible evidence was admissible, affirmed the decision of the Court of Criminal Appeal.

61. In my opinion it is not necessary to pursue any further the point outlined above in its broad aspects, for whatever the powers of the Advocate-General may be, his jurisdiction to issue a certificate is conferred upon him by the express provisions of Clause 26 of the Letters Patent; and what we have to decide is whether the Court in the light of Clause 26 of the Letters Patent can declare that the certificate issued by the Advocate-General is misconceived or incompetent. 'The certificate of an Advocate-General is naturally entitled to respect; the Letters Patent require that it should reflect the judgment of the Advocate-General and not a mere surmise, and the certificate is presumably granted in the interests of justice after a careful consideration of all available materials'.

62. Emperor v. Upendra Nath Das (1914) 21 C.L.J. 377 in which these observations by Jenkins, C.J., appear, the learned judge held that the certificate granted was misconceived and disclosed no error in the decision of a point of law decided by the judge at the trial. He concluded his judgment as follows: 'In this view of the case.it is not within our power to reopen the case, and I regard myself as not entitled to express any opinion as to its merits. In fact I am not in a position to deal with the merits, for they have not been discussed before us nor have those conditions been established on which alone they could be considered by us. Our powers are circumscribed, for we can only act in conformity with Clause 26 of the Letters Patent. If there was no misdirection or other error as certified, the certificate was misconceived, and we have no power to interfere'. In the same case, Woodroffe and Mookerjee, JJ., expressed themselves as follows: Woodroffe, J., remarked, 'With the merits, however, we are not concerned until it is established that there has been an error in law which opens out the case for our judgment'. Mookerjee, J., concluded his judgment with these words: 'In the view I take, no error of law has been established, and, consequently, the Court is not called upon to express an opinion as to the propriety of the conviction and sentence, although as Woodroffe, J., has pointed out, if the Court could examine the case on the merits, there might be matters for careful consideration'. In The King-Emperor v. Barendra Kumar Ghose 28 C.W.N. 170 this case was followed and the scope of CL 26 was examined by Mookerjee, J., in considerable detail. The learned judge points out that the enquiry following the grant of certificate by the Advocate-General under Clause 26 of the Letters Patent has four stages. These are (1) the Court reviews the entire cases or such part of it as may be necessary; (2) the Court finally determines the point or points of law reserved or certified; (3) the Court thereupon alters the sentence passed by the trial Court; (4) the Court passes such judgment and sentence as shall seem right to the Court. Then he says, 'As regards the first stage, it is plain that the Court reviews that case in whole or in part with a view to decide the point of law reserved or certified. This is placed beyond doubt by the use of the word 'necessary', which clearly means 'necessary for the decision of the point of law reserved or certified'. The Court does not at this stage treat the case as open for re-consideration in all its generality, as might have been possible if an appeal had not been excluded by Clause 25. As regards the second stage, it is equally clear that what is finally determined is the point of law reserved or certified. This confirms the view just indicated as to the function of the Court in the first stage'. Then the learned judge says as regards the third and the fourth stages that if the Court decides the point or points of law in favour of the accused then the Court will alter the sentence and pass such judgment and sentence as shall seem right to the Court. The third and the fourth stages will arise 'only upon final determination of the point or points of law reserved or certified in favour of the prisoner'. See also the incidental observation of Beaman, J., in Emperor v. Narayan Raghunath Patki I.L.R. (1907) 32 Bom. 111 . If the Court finds the point against the prisoner, then it is clear that the certificate is incompetent and the case may be dismissed at that stage. The extracts which I have quoted above show sufficiently that this Court on an enquiry following the grant of a certificate has jurisdiction to say that the Advocate-General's certificate is misconceived and should not have been granted on the ground that there is no decision on a point of law involved in the case, and if it comes to that conclusion the petition may straightaway be dismissed without any further consideration of the merits of the case. Having regard to the terms of Clause 26 of the Letters Patent, no other conclusion is possible. If this conclusion is sound in law, the question whether the Advocate-General's certificate is competent should be argued on a preliminary objection raised by the crown Prosecutor or should be decided after the case is opened by the Counsel for the accused, is not of much material importance. The proper procedure to be followed should, I think, be this. The counsel for the accused should first open the case. If this is done, we will be giving practical effect to what is implied in the dictum of Jenkins, C.J., 'that the certificate has been granted and we therefore have to deal with the case', so much relied on by Mr. Sastri for quite a different purpose, namely, to show that we have no alternative but to hear the whole case when once a certificate has been granted. Prima facie the certificate is entitled to weight as containing the considered opinion of the Advocate-General and that as a matter of practice the counsel for the accused should as usual in cases of appeal have the first hearing. The objection that the certificate is incompetent was never argued at first as a preliminary objection in any of the cases where the point was pressed on behalf of the Crown. However, this matter is not of much material importance, I must overrule the objection urged by Mr. Sastri.

63. In the result, I would hold for the reasons stated above, the case should be heard with respect to the first point raised in the Advocate-General's certificate in accordance with the provisions contained in Clause 26 of the Letters Patent.

Curgenven, J.

64. This Bench has been formed to consider the correctness of the former Full Bench's opinion reported in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 which the learned Crown Prosecutor gave notice that he would contest, the substantial questions. being what is meant by a point of law, and by a decision of a point of law, in Clauses 25 and 26 of the Letters Patent.

65. Mr. T.R. Venkatarama Sastri for the petitioner has raised an even more fundamental point - whether the opinion of the Advocate-General upon these points can be questioned by the Court.

66. In the view I take of the answers to be given to the former questions, this latter point does not arise in the circumstances of the present case.

67. The two points taken by the learned Advocate-General are (1) that My Lord the Chief Justice admitted certain evidence and directed the attention of the jury to it in his charge, and that the admissibility of this evidence requires further consideration;

(2) That the correctness of a certain direction given to the jury with regard to the possession by the deceased woman of certain articles at the time of her death requires further consideration.

68. Point (1). Whether or not the evidence in question was admissible was undoubtedly a 'point of law', since if decided at all it had to be decided in accordance with the terms of the Evidence Act. Under Section 298(1)(a) of the Criminal Procedure Code it is one of the 'questions of law' which the judge has to decide, and I am unable to distinguish between 'a question of law' and a 'point of law' in this context. Was that point of law 'decided'? The expression may be used in a stricter or in a broader sense. In the stricter sense it may be said that no point of law has been decided unless it has been formally raised, or expressly brought into issue, and formally and expressly adjudicated upon by the Court. In the broader sense a point may be said to have been decided whenever the Court acts in a manner appropriate only upon a certain view of the law in its application to the facts. For instance, if it is a question of the admissibility of a piece of evidence which has been admitted, upon the stricter view the point of law will only have been ' decided ' if the admissibility of the evidence has been contested and the Court has ruled that it is. admissible; upon the broader view, the admission of the evidence to the record, even without dispute, will constitute a ' decision ' by the Court, because the question of admissibility is one for the Court to decide, and the Court has acted as though it had decided it in the one way and not in the other.

69. I do not obtain much help from the language of Clauses 25 and 26 of the Letters Patent in deciding this question. Under Clause 25 the court of original criminal jurisdiction may reserve any point or points of law for the opinion of the High Court. Under Clause 26 the Advocate-General is empowered to certify that there is ' an error in the decision of a point or points of law decided by the ' Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered'. Some guidance as to what is a ' point of law ' for the purposes of the Advocate-General's certificate may perhaps be obtained from the consideration that it should be ejusdem generis with a ' point of law' reserved by the trial Court. But what amounts to a decision is not, I think, indicated by the terms of these clauses, and we must construe the word upon such general principles, and with the help of such analogies, as would seem to apply. In particular, regard must be had to the duty of a judge in trying a case with the help of a jury. To advert first to the stricter construction, it cannot I think be a necessary condition that the point of law has been raised by one of the parties and what is so urged resisted by the other; because such a point may have been raised suo motu by the Court, and then decided. Section 298 of the Criminal Procedure Code makes it the duty of the judge to decide, for example all questions of the admissibility of evidence, and this duty is laid upon him whatever may be the attitude of the parties. Suppose he disallows a question on the ground that the answer would be inadmissible in evidence. Can it be said that his action amounts to a decision if it is taken at the instance of a party, and does not amount to a decision if it is spontaneous? Since the law clearly empowers and obliges a judge who tries a case by jury to decide questions of law irrespective of whether or not they are expressly raised, I cannot accept such a test.

70. The further question then is whether to restrict the terms 'decide' and 'decision' to cases in which it appears that the Court applied its mind to the point of law, and performed the intellectual operation of deciding it, or whether to extend them to other cases; in which, while it is doubtful or even improbable that any such process took place, yet the effect was the same. To give an illustration, if the Judge says to the jury, ' There is evidence which I consider to be admissible under Section 27 of the Evidence Act... he would be in express terms deciding a point of law. Would he be deciding it if he omitted the words italicized? If we are to limit the meaning of 'decide' in the manner suggested, the answer will be 'yes' if in fact he had made up his mind that the evidence was admissible, and 'No' if he had not done so. If the record fails to throw light upon the matter, it can only be settled by the judge himself. If his reply be that he considered the question of admissibility and thought the evidence admissible, the convicted person will have redress under the clause, but he will have no such redress if the admissibility of the evidence received no consideration.

71. It may be conceded that, unless sufficient reason to the contrary appears, words should be given their ordinary meaning; and, if this discussion were taking place in the realm of psychology and not of law, it would doubtless be all-important to ascertain precisely the nature and extent of the mental operations involved, before determining whether a point had been 'decided'. But in law it is sometimes necessary to treat the apparent as if it were the existent, and to construe a man's intentions by his acts. I am not much influenced therefore, by the dictionary definitions of the word, if there are principles of judicial procedure which demand that it should be given a more extended meaning. I think that such an extension is required by the following considerations.

72. The whole purpose of correctly deciding points of law is that the proper materials may be laid before the jury to enable them to arrive at their verdict. It is to secure this object that nothing but admissible evidence must be admitted, and that, where the verdict has to depend upon the application of a provision of law to the facts, that provision must be corectly explained. It follows that we are not concerned with what passes through the judge's mind, but with what he does and what he says. In other words, the record of what took place at the trial must be accepted as the sole test. The jury, for whose guidance points of law are decided, can have been influenced only by what so took place and in dealing with this matter we must, I think, put ourselves in the position of the jury and inquire in what manner their minds are likely to have been affected. In the judge has succeeded in conveying to them a correct impression of the law by which they should guide themselves, if he admits and lays before them only such evidence as the law declares to be admissible, then he has correctly decided for them a point of law. If he has conveyed an erroneous impression,. or allowed them to act upon inadmissible evidence, then he has incorrectly decided the law, whatever be the cause of his error, and whether he has in his own mind a correct notion of the law or not.

73. Similar considerations lead, I think, to this further conclusion that where something is said or done which would be right upon one view of the law and wrong upon another, the law must be taken to have been decided in the one way, and not in the other. For it is the duty of the judge to decide the law, and if what he does has all the consequences of a conscious decision it makes no difference to the jury or to the Crown or to the accused whether that consequence is intended, or whether it is produced by inadvertence or any other cause. It is only the result that matters, and if implicit in that result is a certain view of the law in its application to the facts, the Court must be deemed to have taken that view, and to have decided the point of law accordingly. I think this principle is commonly enough recognized--in dealing, for example, with second appeals. Where an issue involves a point of law, and there is a finding given, we infer that the point of law has been decided in consonance with the terms of that finding--and we do not concern ourselves with whether the judge was awake to the necessity of applying the law or whether his action was produced by a failure on the part of one of the parties sufficiently to direct his attention to the point or is attributable to a mere disregard of the law or to negligence. For the purposes of Section 100, Civil Procedure Code, the finding is all that we need look at in order to settle whether ' the. decision is contrary to law'.

74. So in a criminal trial, where the judge has given a certain direction to the jury and that direction can only be justified upon a certain view of the law, it must be taken, I think, that the judge has decided the law in that manner and not otherwise. It cannot be said that the point of law involved remains undecided. This has indeed been conceded before us in the special case of a mis-statement of the law by the judge, in laying it down to the jury, to whatever cause that misstatement may be due - for an example reference may be made to the previous Full Bench. Unless we put this construction upon the judge's action, reading a decision into it where a decision fell to be made, we shall become involved in serious practical difficulties. Are we to limit a 'decision' to something of which the record contained express proof that it was 'decided' in the sense of a conscious mental operation? That would be to exclude cases in which it seems probable that there was in fact a decision, although the judge has not expressly recorded it. If on the other hand we are to include such other cases, we should have to make inquiry into the working of the judge's mind, although, so far as the consequences were concerned, the state of his mind was not what mattered. It is, I think, a universal rule - I can at least call to mind no exception in this country - that all questions of fact or of law, of substantive -law or of procedure, which arise for decision in any appellate, revisional or other proceedings of like character, whether out of a criminal or of a civil cause, are to be decided upon the record under scrutiny, unsupplemented by extraneous matter. It would be very unusual, in such circumstances, to take into consideration a statement by the judge as to what took place in Court. To go further and take into consideration what passed through his mind, when that could not be ascertained from the record, would be a unique departure from accepted principles. Yet we should be faced with the need for such an inquisition, whenever the matter was in doubt, before the certificate of the Advocate-General, that a point of law had been decided, could be entertained. The wider construction of 'decided' offers no such difficulties, because we need only examine the record to ascertain how the matter involving the point of law was dealt with, and the 'decision' will emerge.

75. It may be objected that such a construction would unduly widen the scope of Clause 26, and would lead to points of law being raised after the trial which were never raised during it. This latter objection is certainly true, but I am not sure whether having regard to the duty laid upon the judge by Section 298, Criminal Procedure Code, it is a very valid one. That duty, it must be remembered, is absolute, not contingent upon the issue being raised by the parties. How, for instance, would the matter stand in the case of an undefended accused? As regards the scope of the clause, I agree that Wallace, J., in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 goes too far, and, if I may say so with respect, confounds an erroneous decision of a point of law with an infringement of a provision of law, such as misdirecting as to fact. But where, in my view, an erroneous decision is implied in the action taken, I think that the clause should be taken to cover it, on the principle that substance should be preferred to form, and that the effect on the jury is the same, by whatever causes produced.

76. For these reasons I think that, so far as the first of the learned Advocate-General's points is concerned, this Court should accept jurisdiction and proceed to determine the point of law involved.

77. Point (2). The point involved is one of misdirection of fact, not of law. Such a misdirection may be an infringement of a provision of law (Section 297, Criminal Procedure Code), and therefore an error in law; but I do not agree with Wallace, J., that an error in law is necessarily an erroneous decision upon a point of law. As Eddy, J. inquires what is the point of law decided?

78. Now Clause 26 confers jurisdiction not only upon the Advocate-General to certify the case but also upon the Court to review it. One condition is common to the jurisdiction of each; the Advocate-General must find a point of law, which in his view has been wrongfully or doubtfully decided; the Court must find a point of law, for it has finally to determine it. Whatever may be the powers of the Court to control the Advocate-General, it clearly has no basis of action if in its view no point of law to be determined has been laid before it. On this ground I would decline to entertain point (2).

Cornish, J.

79. In my opinion the objection taken by the learned Crown Prosecutor to the maintainability of this application is well founded.

80. The Advocate-General's power to issue a certificate under Clause 26 of the Letters Patent is exercisable at his discretion, and it is clear upon authority that its exercise by him is not subject to the control of the Court. But there is no sanction in the Letters Patent for the proposition advanced in the argument that his certificate is conclusive upon the question of a point of law having been decided. It was not, as I understood the argument, maintained that if a judge purporting to reserve a point of law under the power given by Clause 25 should erroneously have reserved a question of fact the High Court would be bound to consider it as a point of law. There is no apparent reason why the certificate of the Advocate-General should in this respect stand in a better position than the case reserved by the judge for the consideration of the High Court. Clause 26 limits the power of the Advocate-General to certify with regard to a point of law decided: it does not say that he may certify with regard to a point of law which the judge ought to have decided but has failed to decide.

81. The language of Clause 26 of the Letters Patent is plain enough; and, but for the judgment of Wallace, J., in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 , I think there would be no difficulty in saying that the words 'decision of a point or points of law decided by the Court of original criminal jurisdiction' mean a point or points of law which arose at the trial and on which the judge has given a decision. But Wallace, J., has held that there is no real distinction between the expression 'point or points of law' in Clause 26 and the words 'matters of law' in Section 418 of the Criminal Procedure Code. And from this he has concluded that every dereliction of duty imposed by Section 297 of the Code upon the judge in his charge to the jury, whether it be in the shape of misdirection or non-direction, which would give a right of appeal under Section 418, is equivalent to a decision of a point of law within the compass of Clause 26.

82. With great respect I think that the learned judge was in error in resorting to Section 418 of the Code to find the meaning of Clause 26 of the Letters Patent. It is a fallacious mode of interpretation to construe one enactment in the light of another not in pari materia not having the same scope, and expressed in different terms: see Maxwell on Statutes 7th Edn., p. 34; Craies on Statute Law 3rd Edn., p. 122, and the cases there cited. The language and scope of Clauses 25 and 26 of the Letters Patent differ entirely from those of Section 418 of the Code. The Section gives the right of appeal to the High Court; whereas Clause 25 begins by ordaining that there shall be no appeal to the High Court from a sentence or order passed in the exercise of the ordinary criminal jurisdiction of the High Court. Besides, not every matter of law which would support an appeal under Section 418 would amount to a decision of a point of law. For instance, it is a matter of law, in the sense that Section 281 requires it, that the jury shall be sworn. And if by inadvertence one of the jurors was not sworn and the mistake was not discovered until the trial has ended, no doubt this would suffice to support an appeal on the ground of a mis-trial; but I fail to see how it could be said that the trial judge had decided a point of law. For the same reason I am of opinion that non-direction by the judge, though it might be a failure of duty on his part would not be a decision of a point of law.

83. Clause 26 directly limits the Advocate-General's power of certification to 'a point or points of law decided by the Court of original criminal jurisdiction'. The ordinary meaning of this limitation is that there must have actually been a decision by the Judge of the point or points of law certified by the Advocate-General for the further consideration of the High Court. This was evidently the meaning which Sir John Wallis (then Mr. Justice Wallis) thought should be given to CL 26 in Muthu-kumaraswami Pillai v. King-Emperor I.L.R.(1912)Mad. 397, where he says : - 'The Advocate-General's certificate has been granted under that part of Clause 26 which empowers him to certify that a point or points of law which has or have been decided by the said Court shall be further considered. The certificate purports to have been granted upon certain representations made to the learned Advocate-General and does not show whether the written judgments of the Court were before him. They are before us and we have to satisfy ourselves in the first place as to what was decided..... with reference to each of the points of law and as to whether the decision was erroneons'.

84. Indeed, it is difficult to understand how the Advocate-General can be expected to certify that a point of law has been, in his judgment, erroneously decided or that the decision requires further consideration unless there has been an actual decision. A point of law may be decided without being the subject of a formal ruling by the judge. If the judge has misdirected the jury on the law or on what is admissible evidence there is no difficulty in concluding that what the judge has told the jury has been decided by him to be the law or legal evidence. It is evident from his direction to the jury. But it seems to me to require recourse to a fiction, not warranted by Clause 26, to say that a point of law which has lain dormant throughout the trial has been decided by the judge. I am unable to find upon the record that the points of law certified by the learned Advocate-General for further consideration were points of law decided by the learned trial judge. The first point, though it is discoverable in the record, was not the subject of a decision by the judge and of the second point there is no trace in the record.

85. For these reasons I think that the application for a review must fail.

Burn, J.

86. This is an application under Article 26 of the Letters Patent for review of the judgment in S.C. No. 5 based on the learned Advocate-General's certificate that in his judgment two matters require to be further considered by this Court. The learned Crown Prosecutor has taken a preliminary objection that the certificate granted by the learned Advocate-General is itself incompetent, and that consequently this Court has no jurisdiction to consider the matters of law set out in the certificate.

87. The learned Crown Prosecutor's objection is based upon the terms of Article 26 of the Letters Patent. The material portions of the clause are as follows : '... on its being certified by the said Advocate-General that in his judgment.... a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right.' The learned Crown Prosecutor contends that a ' point of law ' in this passage must mean some proposition of law which has arisen in the trial, which has, been presented to the judge for consideration, (whether on the representation of counsel on either side, or of the judge's own motion) and upon which the judge has made an express pronouncement of law. In the present case, the first of the two points certified by the learned Advocate-General as requiring further consideration is whether certain statements, said to have been made by the accused while in the custody of the Police, were admissible in evidence. The second point is to the effect that the learned trial judge omitted to direct the jury properly in regard to the absence of any evidence of possession by the deceased woman of certain silver articles during the period between the 17th I December, 1933 and 11th January, 1934. As regards the first point R; it is not contended for the accused that any objection was taken during the trial to the admission of the evidence, or that any question as to its admissibility was raised; such a contention would be impossible in view of the fact that of the eight statements set out in the certificate, six were elicited by the learned advocate for the accused in the cross-examination of three of the prosecution witnesses. As regards the second point, it is not contended for the accused that there was any evidence about the possession of the silver articles by any one other than the deceased woman during the period after 17th December; the suggestion is only that the learned trial judge ought to have pointed out to the jury that there was no evidence about the possession of these silver articles after 17th December, and that his omission to do so may be a ' misdirection or non-direction amounting to an error of law'. In these circumstances, according to the learned Crown Prosecutor's contention, it cannot be said that the learned trial judge decided any point or points of law, and if that is so there is no point of law which can, under Article 26 of the Letters Patent, be further considered by this Court.

88. For the accused Mr. T.R. Venkatarama Sastri makes a twofold reply. In the first place he offers a counter-objection to the entertainment of any such preliminary objection raised by the learned Crown Prosecutor. Reduced to the briefest possible statement, the counter-objection is to this effect: the Advocate-General is the sole judge of the facts necessary to be established before he can give his certificate, and when once the Advocate-General has granted a certificate, this Court has no jurisdiction to examine the grounds on which the certificate has been granted, but must proceed forthwith to review the case, or so much of it as may be necessary, and finally decide the point or points of law raised in the certificate. In the second place his contention is that even if this Court has jurisdiction to go into the question whether there has or has not been a decision by the trial judge of a point or points of law, what was done by the learned trial judge in S.C. No. 5 did in fact amount to a decision of both the points of law, mentioned in the Advocate-General's certificate.

89. Mr. T.R. Venkatarama Sastri's counter-objection is supported by a lengthy argument based upon cases in which the power of the Attorney-General in England to issue a fiat or a certificate has been exercised. With respect, I do not think it is necessary, strictly speaking, to discuss the powers of the Attorney-General in England. The only power of the Attorney-General which, as it seems to me, is at all relevant to the matter before us, is the power of certifying for a second appeal to the House of Lords from the decision of the Court of criminal appeal. Under Section 1(6) of the criminal appeal Act of 1907, if the Attorney-General certifies that the decision of the Court of criminal appeal 'involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought', 'then the Director of Public Prosecutions or the Prosecutor, or the defendant may appeal to the House of Lords. It has been observed by Lord Sumner in Thompson v. Rex (1918) A.C. 221, that ' The certificate of the Attorney-General, which is the condition precedent to an appeal to Your Lordships' House from a decision of the Court of criminal appeal is granted in his discretion and is the subject neither of review nor of criticism'. On this and similar dicta, Mr. T.R. Venkatarama Sastri bases his contention that when the Advocate-General has granted his certificate under Article 26 of the Letters Patent this Court must go on to consider the point or points of law mentioned in the certificate and cannot say that the Advocate-General's certificate is itself incompetent. It is however to be observed that the wording of Section 1(6) of the Criminal Appeal Act of 1907 is very different from the wording of Article 26 of the Letters-Patent, and I am of opinion that the learned Crown Prosecutor is in a strong position when he contends that since Article 26 has been specially enacted to define the powers of the Advocate-General in connection with criminal trials before this High Court, the genera provision in Section 114(2) of the Government of India Act cannot be read as giving him wider powers in the same matters. This question must therefore be considered only in relation to the terms of Article 26 of the Letters Patent.

90. If this is so I am quite unable to see why it should be supposed that this Court has no power to deal with such a preliminary objection to the Advocate-General's certificate as the one raised by the learned Crown Prosecutor in this case. It is not disputed that this Court can, after a review of such of the case as may be necessary for the purpose, hold that the trial judge has committed no error in his decisions on points of law. Why then it should be supposed that this Court is unable to hold that the trial judge has not in fact decided any point of law, I cannot at all understand. I would therefore overrule the counter-objection raised by the learned advocate for the accused, and hold that it is, quite within the competence of this Court to entertain the learned Crown Prosecutor's preliminary objection.

91. The real problem is whether the preliminary objection is well-founded. As to this, I respectfully agree with all that my Lord the Chief Justice has said. With due deference to the judgment of Wallace, J., in the case of C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N 249 it appears to me that the expression 'a point of law ' in Article 26 must have the same meaning as it has in Article 25 of the Letters Patent. Just as it is not possible for the trial judge to reserve a point of law under Article 25 without knowing and stating what the point of law is, so, in my opinion, it is impossible to say that the trial judge has decided a point of law for the purposes of Article 26, unless the point of law as such has been definitely and precisely put before him. The point of law may have been raised by counsel for the prosecution or defence, or it may have been raised by the judge himself but unless it has been expressly raised in such a way that it can be said to have been presented to his mind for decision, it cannot be held without doing violence to the ordinary meaning of words, that there has been a decision of a point of law. The word ' decision', according to any dictionary, connotes, a positive act, and in my opinion it is not permissible by means of any legal fiction, to turn it into a word with a negative meaning, or even with no meaning at all. With all respect it appears to me that Wallace, J., in the case of C. K. N. Sundaresa Aiyar v. Emperor (1930) M.W.N 249 has used language which deprives the word ' decision ' of all meaning. In fact, he has gone further; he has made ' decision ' identical in meaning with 'omission to decide'. I cannot (I say it with deference) subscribe to the proposition that because it is the duty of the trial judge to decide what evidence is admissible and what is not, therefore the judge has decided that every jot and title of the evidence found on the record is admissible. The question whether the judge has decided that any particular item of evidence is admissible, is a question of fact; if in fact the judge has not decided a particular point, I am not prepared to admit that by some legal fiction he must be deemed to have decided it. Wallace, J., seems to have been very much influenced by his fear that even if the judge disregarded the law altogether, or omitted or refused to sum up, the accused would have no remedy. That fear, I need hardly say, is quite unfounded in fact; no Judge will ever behave in the way Wallace, J., describes. And, as several of my learned brotheren have pointed out, it is unfounded in law also, since such conduct on the part of a trial judge would enable (I might say, would compel) this Court to grant a certificate for appeal to the Privy Council under Article 41 of the Letters Patent.

92. I agree with all my learned brethern that the second point certified by the learned Advocate-General never arose, nor could it have arisen, for the consideration of the learned trial judge. The point therefore cannot be considered by this Court under Article 26 of the Letters Patent. As for the first point since we know that the question of the admissibility of the evidence was not in fact raised before the learned trial judge and was not in fact decided, I would hold that we are precluded from considering it. This application ought therefore to be dismissed, on the simple ground that the learned trial judge did not in fact decide either of the two points or questions, or matters, of law referred to in the certificate of the learned Advocate-General.

Pandrang Row, J.

93. This application for review is made under Clause 26 of the Letters Patent of 1865 by virtue of a certificate granted to the prisoner under the same clause by the Advocate-General.

94. A preliminary objection has been raised on behalf of the Crown to the certificate as well as to the application for review based thereon, and, in short, it is to the effect that both are incompetent because there has been no decision on a point of law by the trial judge. There can be no doubt that our decision on this preliminary objection must depend upon the correct interpretation of Clause 26 of the Letters Patent which alone gives the Advocate-General power to grant a certificate and gives us power to review the case. That clause contains the entire law on these subjects, and if reference has to be made to any other provision of law or to the practice of Courts it can only be for the purpose of ascertaining the true import of Clause 26 of the Letters Patent.

95. The relevant part of this clause runs as follows: - 'And we do further ordain that... on its being certified by the said Advocate-General that, in his judgment there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary and finally determine such point or points of law.' The meaning is clear, and but for the elaborate argument addressed to us it would be unnecessary to lay stress on what is obvious. Even in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 249 (F.B.), the majority judgment in which was strongly relied upon by the Advocate for the prisoner it was held that Clause 26 applies only if the trial judge has decided a point of law. Wallace, J., who pronounced the judgment of the majority of the Bench said: ' It is next argued that the error must be in the decision of a point of law, and that the section (Clause 26 of the Letter Patent) only applies if judge has decided a point of law. That, of course, is so, but when it is further argued that the Point of law must have been specifically put up and deeded as a point of law I am unable to agree. There is no direct authority on the point.

96. It was nevertheless contended by the Advocate for the prisoner that we have no power to declare that a certificate granted by the Advocate-General is incompetent either on the ground that there is no point of law or on the ground that there was no decision but hat we are bound, even if we are of opinion that there was no decision on a point of law, to go on with the case, or, as he put it 'to examine the matter'. It was, however, conceded by him That we are not wholly powerless in the matter, for he agreed that after hearing the application for review on the merits it would be open to us to say that there was no decision on a point of law and that we have therefore no power to review the case. His contention then comes to this, namely, that the objection cannot be raised or decided as a preliminary objection but only after the application for review is heard on the merits. In other words, it means W the judgment of the Advocate-General expressed in the certificate that a point of law has been decided by, he trial judge cannot be questioned by the other side and that it entitles the person to whom the certificate is granted to have his application for review argued on the ments though the Court which hears the applications not bound by that judgment and can pronounce the certificate to b incompetent or misconceived, and decline to pronounce any decision on the merits on the ground that no point of law had been decided by the trial judge. It has to be mentioned in this connection that no objection was taken at the outset by the Advocate for the prisoner to the raising of the preliminary objection on behalf of the Crown and that he was not prevented from referring to such part of the case on the ments as he thought necessary for the purple of sup porting his argument that there was a decision on a point of Z Even if this objection is well-founded no harm has been done by' the course adopted the hearing. I am, however, of opinion that the Court 1S not bound to hear the application for revew on the merits fully before pronouncing the certificate to be incompetent or misconceived, so long as no bar is placed on such refer. To the merits of the case as is thought necessary for the propose such procedure as it thinks fit, so long as it does not offend against the fundamental principles of justice, equity and good conscience. I may add that preliminary objections to certificates by the Advocate-General have been allowed in the past to be raised on behalf of the Crown without any objection, being taken thereto in this High Court as in other High Courts. The objection taken in the present case at a late stage must, in my opinion, be over-ruled.

97. I conclude, therefore, that the Advocate-General has power to give a certificate under Clause 26 of the Letters Patent only if a point of law has been decided by the trial judge, and that in deciding whether a point of law has been decided by the trial judge in this case the opinion or judgment of the Advocate-General is not binding on us, and that it is open to us, nay, even incumbent upon us, to arrive at our own judgment in the matter.

98. We have first to see what the certificate says about this matter. As it was originally given it did not even state that there had been any decision of a point of law, or that any point of law had been decided by the trial judge; the words 'decision' and 'decided' were not to be found in it. Apparently in order to amend this defect or to rectify this omission the Advocate-General amended his certificate during the hearing of this application and at the instance of the Advocate for the prisoner. The amended certificate no doubt contains the word 'decisions' in two places, but it does not, in my opinion, show with sufficient clearness what the 'decisions' were. Omitting whatever is not absolutely necessary for our present purpose, the amended certificate is to the following effect, (the amendments being enclosed in brackets) - I. 'Whether the alleged statements of the accused while in the custody of the police are admissible under Section 27, Indian Evidence Act, orunder Section 8 of the Indian Evidence Act, (or any other provision of law:) and whether the fact that no exception was taken to the reception of this evidence during the trial, and the fact that some of these statements were elicited by counsel for the accused affects the point as to their admissibility, and the points of law arising out of the reception in evidence of these statements and the placing of the same before the jury (which are in my judgment decisions on points of law) require further consideration. II... in my judgment, whether there is an error of law or a misdirection or a non-direction amounting to an error of law by reason of the learned Chief Justice not directing the attention of the jury to the question, whether in the circumstances of the case the jury would draw a presumption under Section 114 of the Indian Evidence Act as to the continued possession of the articles by the deceased down to the date her death, requires further consideration, (and in my judgment, the facts and circumstances mentioned above are and constitute a decision on a point of law under Clause 26 of the Letters Patent)'.

99. The certificate does not say clearly what points of law were .decided and what the decisions were. The reason for this want of clarity is obvious; as a matter of fact the Trial Judge had not decided any of the points mentioned in the certificate, using the words 'decide' and 'decision' in their ordinary sense. There was no decision by the Trial Judge that the statements in question were admissible evidence or that a presumption under Section 114 of the Evidence Act did or did not arise for consideration by the Jury. There is nothing in the record of the trial from which it can be said that there was any decision on the points referred to in the certificate. It is not alleged that such an inference could be drawn from anything said by the Judge during the trial. What is alleged by the Advocate for the prisoner, and that is apparently what was meant by the Advocate-General is that because the statements in question are found in the record of the evidence given at the trial, and some of them are mentioned in the charge to the Jury (though without the least reference to their admissibility) the Trial Judge must be deemed in law to have decided that the statements were admissible evidence, and that because the Trial Judge omitted to say anything about the presumption under Section 114 of the Evidence Act, he must similarly be deemed to have decided not to say anything about it. Actual decisions there were none; the record does not disclose them, and we have the statemant of my lord who was the Trial Judge that he did not decide these points at any time during the trial. As observed by Westropp, C.J., in Reg. v. Pestanji Dinsha (1873) 10 B.H.C.R. 75 , 'the statements of the Judge, who presides at a trial, whether it be in a Criminal or Civil case, is, as to what has taken place at the trial, conclusive. Neither the affidavits of bystanders, nor of jurors, nor the notes of counsel, nor of shorthand writers are admissible to controvert the notes or statement of the Judge: Rex v. Grant (1834) 5 B. & Ad. 1081 : 110 E.R. 1092. Everett v. Youells (1833) 4 B. & Ad. 680 : 110 E.R. 612 Gibbs v. Pike A (1842) 9 M. & W. 351 : 152 E.R. 149' The learned Chief Justice then quotes certain observations by Coleridge, J., and Martin B, in Reg v. Aaron Mellor' (1858) 7 Cox. C.C. 454 which lend support to his observations. It is needless to repeat them here or to labour this point further; it has not been pressed before us that there were any deliberate or conscious decisions by the trial judge on the points in question. The argument pressed is that something undone and something else done should in law be deemed to be decisions by the Trial Judge. The point of law regarding the admissibility in evidence of the statements was never present to the mind of the Trial Judge nor was it present to the minds of Counsel appearing on either side. What happened was that the statements were spoken to by some of the witnesses, and some of them were mentioned without any reference to their admissibility,. in the charge to the Jury. If objection had been taken at any time,, and nevertheless the statements had been received as evidence or referred to as such in the charge a decision that they were admissible could be inferred. By saying this I do not of course, mean, that what is not admissible in evidence becomes admissible if no objection is taken. What I mean is that, though the omission to object does not alter the law regarding admissible and inadmissible evidence, it is an important and material factor to be taken into consideration in deciding whether there was or was not a decision about the admissibility of the evidence. An objection means the Judge's mind was directed to the point of admissibility, and even though no oral decision is pronounced thereon, the reception of the evidence objected to is itself an actual decision. When no' objection is taken it is impossible to infer that there was an actual decision, when no decision is pronounced and the Judge himself is not aware of having decided the point of admissibility. Then again, mere mention of some of the statements in the charge to the jury is no doubt a decision to mention them, but is not necessarily a decision that there are admissible evidence merely because the Evidence Act lays down that a Judgment should be based only on relevant facts. As regards the second point relating to the non-direction about the presumption under Section 114.of the Evidence Act the position is the same, if not actually worse, from the prisoner's point of view; this second point did not even arise for decision in view of the defence set up by the prisoner during the trial. A nondirection on a point which did not arise for decision in the case cannot, in my opinion, be said to be or constitute a decision on the point.

100. It is clear to my mind that there was in this case no decision, by the Trial Judge of any of the points mentioned in the certificate, using the word 'decision' in its ordinary sense about which there is, and can be, no doubt. The word is a popular, and not a technical word, and its meaning can be found in any dictionary. When one speaks of any point decided by a Judge or of a decision by a Judge on any point one means a concluded opinion arrived at after applying his mind to it. It cannot possibly include anything of which the Judge is not even aware or conscious: mere inadvertence is not a decision whatever be the importance of the point not adverted to. Decision even by one who is not acting as a Judge necessarily implies some process of deliberation or ratiocination, however short, and the mind must necessarily be aware of it. What a decision is, is a matter of psychology and not of law as such, and perhaps this is the reason for the lack of any judicial interpretation of the word, except in C.K.N. Sundaresa Aiyar v. Emperor (1930) M.W.N. 244 referred to already.

101. The actual point decided in the above case was that there had been a serious misdirection by the Trial Judge in his charge to the Jury on a point of law, namely, the ingredients of one of the offences for which the prisoner was tried. That such a misdirection is a decision on a point of law is clear, and is not disputed by the Crown Prosecutor. It is obvious that a Judge when he states to the Jury what the ingredients of the offence charged are, has consciously decided in his mind what they are, and expresses his concluded opinion thereon. In the Judgment of Wallace, J., in that case, with which three other learned Judges agreed, are, however, to be found certain general observations of the nature of obiter dicta on which much reliance is placed on behalf of the prisoner. These observations fall under two heads, namely, (1) the meaning of the word 'decision', and (2) the meaning of the words 'point of law'. If I may say so, and I say it with the greatest respect, the observations under the first head are a mixture of what is unquestionable and what is questionable. For instance, Wallace, J., says:

'The word ' decision' is not restricted to matters actually sta ted at the bar for the direct decision of the Court. It includes all matters decided or which fall to be decided by the trial Court in the case'. The first of these two observations is in my opinion not open to doubt; otherwise a misdirection as regards the ingredients of the offence charged would not be a decision if no question regarding the same was raised at the bar. The second observation is not sufficiently clear to me; if the first word 'it' refers to the word 'decision'' in the earlier sentence I fail to see how a decision can include matters decided; a decision and the subject or matter decided are two different things. If, on the other hand, the word 'includes' means 'refers to' I cannot agree that the decision may refer to matters which fall to be decided though not actually decided. The learned Judge goes on to say that the judge's decisions 'also include what he does not state, since a decision not to state is equally a decision'. Of course if we assume that there is a decision - whatever be its purport - there is a decision; in this sense, no doubt, a decision not to state is a decision. But does it follow that mere non-stating and no more is necessarily a decision? A decision is a decision whatever may be its subject-matter or purport, but is this self-evident proposition of any assistance in finding out whether in any particular case and on any particular point there was a decision? I think not.

102. The further observation that if a Trial Judge 'admits and discusses certain evidence, he has decided to admit it, even though neither party raised the question of its admissibility,' demands more detailed consideration. If the evidence is 'admitted' after a conscious conclusion has been come to by the Trial Judge on the question of its admissibility no doubt he has decided a point of law. But if the judge by pure inadvertence fails to prevent the introduction of certain evidence by reason of his mind not being directed by himself or by one at the bar to the question of its admissibility can it be said that he has decided that question? In short, when he was given no thought to it, can it be said that he has decided it? In the case of an ordinary man the only possible answer is there can be no decision of any point without any thinking about it. Is a judge in a different position from the ordinary man in this respect? Prima facie one would be inclined to say that there would be more and not less thinking before a judge comes to a decision than an ordinary man. It is urged, however, that the duties imposed on a judge trying a criminal case with the aid of a jury by Sections 297 and 298 of the Criminal Procedure Code make all the difference. It is no doubt his duty inter alia 'to decide the admissibility of the evidence'; and 'also, in his discretion, to prevent the production of inadmissible evidence, whether it is or is not objected to by the party'. The argument based on this is that if the judge omits to do his duty in this matter, such omission, even though it was a really due to inadvertence, must be deemed to be a decision that whatever evidence was actually given at the trial was admissible in law. It is further argued that because it is the duty of the judge to sum up the evidence he must be deemed to have decided that every particle of evidence which he mentioned in his charge to the jury is admissible in law. These arguments find support in the further observation of Wallace, J., that the word 'decision' includes non-directions to the jury even in the summing up on facts. The reason given is that if this is not so, then, even if the judge entirely omits to sum up or if he refuses to decide the point specifically put up to him, the accused has no remedy. This reason presupposes that Clause 26 of the Letters Patent was intended to provide a remedy in such cases; otherwise the absence of a remedy for the accused would not be relevant to the consideration of what is meant by the words 'decision' and 'decided' found in that clause which alone defines and provides the remedy by way of an application for review based on a certificate by the Advocate-General.

103. A consideration of the relevant clauses of the Letters Patent shows that the only appeal, unrestricted in scope, allowed by the Letters Patent in criminal cases is the appeal referred to in the first sentence, of Clause 41, i.e., to His Majesty in Council, that the right of such appeal to the High Court is negatived in express terms by Clause 25, and that the only remedy available in the High Court in cases of the present kind is only a limited right to have such points of law as are either reserved by the Trial Judge, and or such points of law which have been decided by the Trial Judge and certified by the Advocate-General, determined by the High Court by way of review, after which determination the High Court can alter the sentence of the Trial Judge and pass such judgment and sentence as shall seem right. I have not been able to discover anything in the Letters Patent from which it can be inferred that any remedy wider in scope than the words in Clause 26 would warrant was intended to be provided by it; in any case, it is clear that a right of appeal of the same amplitude as is given by Section 418 of the Criminal Procedure Code was not intended to be given by Clause 26 of the Letters Patent. The assumption to the contrary underlies most of the reasoning in C.K.N. Sundaresa Aiyar's case and most of the argument addressed to us by the Advocate for the prisoner.

104. The language used in Clause 26 of the Letters Patent is in my opinion clear and unambiguous, and it is not necessary even if it were permissible, to seek any light from the state of the law in England regarding the Attorney-General's right to grant writs of error in criminal cases, and to discover by way of analogy the scope of the Advocate-General's right to grant certificates under Clause 26 of the Letters Patent. It is enough to say that the Attorney-General's right to grant writs of error, though originally recognised as being entirely within his discretion--and the writ of error was then final and accepted by the Court without question-- was after Paty's case in 1705, made subject to the control of the Court both as regards the grant and the effect thereof, so far as misdemeanours were concerned, and that such writs of error being confined to errors apparent on the record which consisted only of the arraignment, the plea, the issue and the verdict, could not be granted in respect of evidence wrongly admitted or misdirections in the charge to the Jury, as the record did not contain either the evidence or the charge to the Jury. Proceedings by writ of error granted by the Attorney-General in England, and proceedings by way of review on certificate by the Advocate-General here, are so different from each other than no argument by analogy can be based on a comparison of the two.

105. The observations of Wallace, J., under the second head are to the effect that the words 'Point of law' mean the same thing as the words 'matter of law' found in Section 418, Criminal Procedure Code, that is, such misdirection or non-direction as would permit an appeal under that section, and that therefore even a defect in summing up the evidence and indeed any infringement of the law laid down in Section 297, Criminal Procedure Code would constitute a decision on a point of law. It may be there is not such difference between 'point of law' and 'matter of law', though the latter seems to connote a wider category than the former but the conclusion that wherever an appeal lies on a matter of law under Section 4! 8, Criminal Procedure Code, there must have been a decision of a point of law is based really on the earlier observations as to the meaning of the words 'decision' and 'decided'. If these observations are right it would no doubt follow that even a defect in summing up the evidence in the charge would be a decision on a point of law, because it is the duty of the judge to sum up the evidence properly and a failure to perform the duty is alleged. Whether the defect is material and amounts to misdirection is a point to be decided on the merits; for according to this view of what 'decision' means, any defect or any alleged defect however slight in summing up the evidence is a decision on a point of law and whether that decision is wrong, is to be determined only after a hearing on the merits. In dealing with the preliminary objection raised in this case we have only to determine whether there was a decision on a point of law, and not whether, if there was a decision, it is wrong. We cannot question the certificate or its propriety on the ground that the decision was right or that there was no need for any direction on the point. If the interpretation given to the word 'decision' by Wallace, J,, is correct, no distinction can, in my opinion, be made between the two points covered by the certificate of the Advocate-General at the present stage without hearing the application for review fully on the merits.

106. With the greatest respect I find myself unable to accept this interpretation of the word 'decision' as correct, and I am clearly of opinion that there was no decision by the Trial Judge on any of the points mentioned in the Advocate-General's certificate, that the certificate is therefore misconceived and that in any case, we have no power or authority to determine these points under Clause 26 of the Letters Patent. Whether there were decisions on these points is a matter of fact and not of law, and I am convinced, even apart from what was stated by my Lord, the Chief Justice, that there were, in fact, no decisions by him on these points. In matters of fact, we have no right, which seems to me, to assume anything to have happened if we are convinced that it did not happen, in order to enable us to exercise a jurisdiction which otherwise we do not possess. This may appear at first sight to be a narrow view of our jurisdiction under Clause 26 of the Letters Patent but if the words used in it are themselves such as would justify only that view, we cannot and should not take a wider or more liberal view. Our duty is to act according to the law as it stands and not according to our notions as to what it should be; otherwise, we shall be making the law suit our opinions instead of making our opinions suit the law. If Clause 26 of the Letters Patent had been intended to confer a right of appeal of the same scope as Section 418 of the Criminal Procedure Code, which however I seriously doubt, the intention would have been made clear by employing the words 'misdirection' or 'error of law' the legal significance of which was well known, instead of the words, 'decision' and 'decided'. The intention of the clauses in the Letters Patent which relate to appeal or review in criminal cases tried in the High Court is clear: there was to be no right of appeal to the High Court, but only to His Majesty in Council; the High Court could however review the case for the purpose of determining such points of law as may be reserved by the Trial Judge, or such points of law decided by the Trial Judge which are certified by the Advocate-General. Where there are no decisions on points of law by the Trial Judge the obvious remedy is to apply to the Trial Judge to reserve the points of law for the opinion of the High Court under the last sentence of Clause 25 of the Letters Patent or under Section 434, Criminal Procedure Code; instead of availing himself of this obvious remedy, the prisoner chose to apply to the Advocate-General for a certificate and the Advocate-General chose to grant a certificate in respect of points which had not been decided by the Trial Judge. The argument, therefore, that the prisoner is left without any remedy under Clause 26 of the Letters Patent when there has been no decision by the Trial Judge is thus without force. The prisoner had a remedy but he did not avail himself of it. Whether the remedy is not still available to him is not for me to say. I am, however, convinced that the remedy which he seeks in this application is misconceived and does not exist. I would therefore dismiss this application.

107. The case (S.C. No. 5 of 3rd Criminal Sessions, 1934) was gain posted before His Lordship the Chief Justice who delivered the following

Horace Owen Compton Beasley, Kt., C.J.

108. The prisoner was convicted in Sessions Case No. 5 of 1934 of the third Criminal Sessions of the Offence of murder and was sentenced to death by me. Since that conviction and sentence my attention has been drawn to certain answers given by some of the prosecution witnesses which it is suggested may be inadmissible in evidence under the Indian Evidence Act. No objection was taken at the trial to the admissibility of these answers nor was my attention directed before my charge to the Jury, during it, and after it before conviction to the question, of their admissibility. The matter is brought to my attention by a certificate granted by the learned Advocate-General under Clause 26 of the Letters Patent of this High Court on being moved by the prisoner raising the question of the admissibility in evidence of these answers stating that in his opinion the reception in evidence of these answers and the placing of them before the Jury required: consideration by the High Court.

109. In view of the majority opinion of the Full Bench formed to-consider the question raised in the certificate of the learned1 Advocate-General in Crl. M.P. No. 910 of 1934 namely that it is incompetent for the High Court to entertain the petition because-there was no point of law decided such as is intended in Clause 26 of the Letters Patent, the question of the admissibility of these statements and the effect of their admission if inadmissible upon the jury has not therefore been considered. In my view, the question as to the admissibility of these statements-requires to be considered by the High Court and, accordingly, in the exercise of my powers under Clause 25 of the Letters-Patent of this High Court, I reserve that question for the opinion of the High Court. It is unnecessary for me to state the facts of this case because these are already set out in my judgment in Crl. M. P. No. 910 of 1934. The matter reserved for the opinion of this High Court is the question of the admissibility of statements made by P.W. 10, P.W. 11 and P.W. 42 as the statements alleged to have been made by the prisoner while in the custody of the police.

(1) P.W. 10 in examination-in-chief said: 'the accused pointed out the shop, saying that it was in that shop that he purchased; the mattress'.

(2) In cross-examination P.W. 10 said: 'the accused himself pointed out the shop, saying that it was at this shop that he purchased adding 'I paid an advance of annas 8 and I subsequently paid Rs. 2-8-0';

'that the accused looking at me said 'I have purchased from him on the 12th a coir mattress';

'it was the accused that was looking at me and asking me 'I purchased from you, is it not, on the 12th a coir mattress';

'thereupon the accused said 'I purchased it of you for Rs. 3; I paid an advance of eight annas and I sent the balance of Rs. 2-8-0 through the coolie woman;'

(3) P.W. 11 said in cross-examination: 'the accused himself mentioned me and said that it was a woman wearing a coral necklace.'

In answer to a question by the Court 'when I went there the accused said 'it was this woman that carried the article' ';

(4) P.W. 42 in cross-examination said: 'while we were coming out the accused pointed out that woman with coral beads on her neck and said 'that was the coolie that carried my mattress.''

110. I reserve the question as to the admissibility of the above-mentioned statements for the opinion of the High Court under Clause 25 of the Letters Patent of this High Court and for the determination of this matter under Clause 26 of the Letters Patent.


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