1. In this case the petitioner one Mr. Jeremiah of the Civil and Military Station, Bangalore, was convicted of the offence of defamation under Section 500, I.P.C., and sentenced to a fine of Rs. 100 by the 1st class Second Magistrate of that station; and his conviction was confirmed on appeal by the Sessions Judge of the same station and application is made to this Court to revise the judgments of these two Courts and to hold that there was no case against the petitioner under Section 500, I.P.C.
2. A preliminary objection has been taken to the hearing of his case by this Court on the ground that the proper tribunal to hear it is not this Court but the Resident's Court at Bangalore. It may be stated that Mr. Jeremiah claims to be a European British subject but he did not claim to be dealt with as such by the Magistrate before whom he was tried. He waived his claim under Section 454, Criminal Procedure Code. The question whether he is really a European British subject or not was thus not made the subject of any investigation or determination. I will however take it for the purpose of deciding the preliminary objection that he is a European British subject. The question then is when a European British subject has waived his claim to be tried as such under the Criminal Procedure Code, whether the proper tribunal that should exercise the power of revision is this Court or the Court of the Resident at Bangalore. It is conceded that in all trials where no question of European British subject comes in, this Court has no power of revision under Sections 435 and 439, Criminal Procedure Code over the convictions by the Sessions Court of Bangalore as that Court is not an inferior criminal court with regard to this Court; but the proper tribunal to exercise that power is the Resident's Court of Bangalore.
3. The Public Prosecutor has cited in favour of his preliminary objection the case Queen Empress v. J. Grant I.L.R. 12 Bom. 561, where a Bench of the Bombay High Court had to consider a very similar question. There an European British subject waived his right to be dealt with as such by the Magistrate before whom he was tried, and the question arose whether the High Court of Bombay could exercise revisional jurisdiction over the Magistrate's conviction or whether it was the Judicial Commissioner of Sindh that should exercise it. Their Lordships held that when an accused waived his right to be tried as an European British subject, the special privileges given to him as such, one of which was his right to come up to the High Court in revision by virtue of the definition of 'High Court' in Section 4, Clause (j) of the Code of Criminal Procedure was lost and that he should be tried like any other ordinary individual not only in the matter of the trial itself but in the matter of appeal and revisions as well. Against this authority Mr. Govindaraghava Iyer for the accused has cited the decision in Harris v. Peal 21 Cr. L.J. 767 where Walsh, J. of the Allahabad High Court took a different view. After a careful consideration of the arguments addressed, I am inclined to agree with the Bombay decision, particularly the reasoning of Mr. Justice Birdwood. Section 454, Cr. P. Code, says: 'If an European British subject does not claim to be dealt with as such by the Magistrate before whom he is tried or by whom he is committed, or if, when such claim has been made before, and disallowed by, the Committing Magistrate, it is not again made before the Court to which such subject is committed, he shall be held to have relinquished his right to be dealt with as such European British subject and shall not assert it 'in any subsequent stage of the same case.' I am inclined to think that the words in any subsequent stage of the same case' includes this application to get his conviction set aside in revision. The word 'case' is wide enough to include the whole of the proceedings connected with the prosecution; the trial, the appeal and the revision are all stages in that case in my view. That being so the petition cannot how come up here before me asserting that he is an European British subject and take advantage of the definition of 'High Court' under Section 4, Clause (j), Cr.P.C. to come to this Court as such European British subject. It is only if a person can plead that he is an European British subject that he can claim the right to come to the High Court. The mere fact that he is an European British subject is not sufficient to make the first part of the definition apply to him. He must plead the fact, and if it is disputed, the Court must investigate and determine it. If he does not or cannot plead the fact, the Court can take no notice of it. In such cases, as the 2nd part of the section says, 'High Court' means the highest Court of criminal appeal or revision for any local area which in this case is the Resident's Court at Bangalore. It follows that in Section 435, Cr.P.C., this is not the Court referred to. The right given under the Criminal Procedure Code to European British subject to claim to be tried in a particular manner is in my opinion a privilege which they may claim if they think fit, but if they waive their claim, they cannot be allowed to claim it any more at any subsequent stage of their case and that is what Section 454, Cr.P.C. says. The definition in Section 4, Cr.P.C. must, I think, be read with Section 454.
4. In my view, therefore this revision petition fails and must be dismissed. The petitioner, if so advised, may move the Resident's Court at Bangalore.