1. This case arises out of a reference by the special Court of British Burmah made under Section 80, Clause (b), of the Burmah Courts' Act.
2. The point submitted for decision is stated to be whether the local Government has power to transfer for trial to the Court of Commissioner a criminal case duly committed for trial to the Court of the Recorder of Rangoon.
3. We would, however, premise by stating that the point on which the Judges of the special Court in British Burmah have differed is not accurately expressed, in so far as it has arisen from the case before them. We find rather from the record that the case really for our decision is whether the local Government has power to direct that a case duly committed to the Recorder of Rangoon in which the accused are natives shall be transferred and tried in any Sessions division, or, as in the present case, in the Sessions division of Pegu.
4. By Section 60 of the Burmah Courts' Act the Recorder is empowered to exercise the powers of a Court of Session within the local limits of his ordinary civil jurisdiction. This we understand to be the powers of a Court of Session as defined in Chapter III of the Code of Criminal Procedure. In order to provide for the passing of sentence of death, which when passed by a Court of Session is subject to the confirmation of a High Court, it is provided that when a sentence of death is passed by the Recorder as a Court of Session it shall be subject to the confirmation of the special Court. These are the general powers of the Recorder's Court, except as regards the trial of European British subjects; in other respects it is deemed to be a High Court, and not a Court of Session. Clause 3 of Section 60 of the Burmah Courts' Act declares that for the purposes of Section 64a of the Code of Criminal Procedure, that is, Section 527 of the present Code of Criminal Procedure, the Court of the Recorder shall be deemed to be a High Court. Under Section 61 the Recorder is given the powers of a High Court under the Code in regard to revision of proceedings of the Magistrates within his local jurisdiction. And under Section 62 of the same Act the Recorder is given the powers of a High Court for the trial of, or otherwise with reference to, European British subjects and persons charged jointly with them. Looking, therefore, at these sections it appears to us that in the exercise of revisional jurisdiction, or in the transfer of cases triable by him from his Court to any High Court, and in all matters connected with the trials of European British subjects and persons charged jointly with them, the Recorder possesses all the powers of a High Court. But in other respects he exercises only the powers of a Court of Session.
5. This is a case which does not fall within Section 527 of the present Code of Criminal Procedure, nor is it a case connected with the revisional jurisdiction of the Court of the Recorder, nor is it a case in which a European British subject, or persons charged jointly with him, is to be tried.
6. Therefore, in our opinion, it falls within the jurisdiction which the Recorder possesses, acting merely as a Court of Session. Under Section 178 of the present Code of Criminal Procedure 'the local Government may direct that any case or class of cases committed for trial in any district may be tried in any Sessions division.' In regard to such cases Rangoon is a district, and the Recorder's Court is the Court of Session of the Sessions division. The conclusion is therefore inevitable that under this section the local Government is empowered to direct that any ordinary case (such, for instance, as the case before us) committed for trial by the Recorder's Court at Rangoon shall be transferred for trial by the Sessions division of Pegu. But if the local Government went further and directed that the case should be tried by a particular Court, we think that such direction and order cannot be sustained, as it is beyond Section 178 of the Code. It has been urged against this view that under Section 77 of the local Act the Chief Commissioner may direct that any criminal case pending in the Court of the Recorder of Rangoon shall be transferred to and tried before the special Court, and that hence we should presume that it was not the intention of the Legislature that any such transfer should be made to a Court of Session. But the answer to this objection is obvious. The special Court has been created by the local Act; it is not recognized by the Criminal Procedure Code, and if it were intended to transfer a case from the Recorder of Rangoon to the Judicial Commissioner, it could only be done by the special provisions contained in the local Act. This does not, as appears to have been held by the Judicial Commissioner, necessarily or by implication, lead to the conclusion that the Legislature never intended any case committed to the Court of Rangoon should not be tried in another Sessions division.
7. Strictly speaking, therefore, the answer we should give to the reference by the special Court should be that the local Government has no power under Section 178 of the Criminal Procedure Code to transfer for trial to the Court of the Commissioner a criminal case duly committed for trial by the Court of the Recorder of Rangoon, but that the local Government has the power to transfer a case from the district of Rangoon to the Sessions division of Pegu.