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Sashadhar Acharjya Vs. Sir Charles Tegart - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1932Cal229
AppellantSashadhar Acharjya
RespondentSir Charles Tegart
Cases ReferredQueen v. Nabadwip Chandri Goswami
Excerpt:
- .....in chandarnagore under the french law; they have been unable to get the political agent or the local government to give any certificate for the prosecution of anybody in british india. they have been unable to get the sanction of the local government under section 197, criminal p.c. they know perfectly well that the advocate-general or any other officer on behalf of the government is not willing to commence a proceeding under clause 24 of the letters patent. in order to get over this difficulty, an application is made to this court to recommend to the local government that the petitioners' advocate should be clothed with the powers of the advocate-general or other person appointed on behalf of the local government. before us this somewhat remarkable application has been started by a.....
Judgment:

Rankin, C.J.

1. This is an application to this Court by two persons against certain named opposite parties with an indication that other unnamed opposite parties whose names the petitioners have not yet discovered are to be included. The petitioners complain against certain officers of the Calcutta police in respect of certain acts done by them at Chandanagore in the territory of France where to put the matter shortly, a raid was conducted upon a house of which the first petitioner and the second petitioner appear to be tenants or sub-tenants.

2. The prayers in the petition are numerous; but the first matter is this, it is alleged that the first opposite party Sir Charles Tegart, the Commissioner of Police, who had been unsuccessfully prosecuted by the petitioners before the Chief Presidency Magistrate gave an undertaking to this High Court when dealing with an application in revision which undertaking he has broken and thereby made himself amenable to the jurisdiction of this Court in contempt. Upon examination, this charge appears to be altogether unfounded. It appears that at the argument in the revision case before the High Court, the petitioners' advocate stated that Sir Charles Tegart was proposing to leave the jurisdiction of this Court and he was assured by the Advocate-General that he (Advocate-General) would not have been appearing for Sir Charles had there been any question of his evading the jurisdiction of the Court by going away. On the night of 5th March, it seems Sir Charles left Calcutta for England and, on the afternoon of the 6th, the application of the petitioners was altogether dismissed. In these circumstances, in May, a petition was presented complaining, as I understand it, not that Sir Charles Tegart was obliged to wait until the petitioners should bring another petition or another six petitions against him. They complain as we now know that whereas it would have been quite right for Sir Charles Tegart to leave Calcutta on the evening of the 6th, it was contempt of Court for him to leave Calcutta on the evening of the 5th. It seems to me that this mere statement is sufficient to show that this Court cannot possibly think it a fit case in which to take any proceeding in contempt against the Police Commissioner.

3. The next matter is this: the petitioners have been unable apparently to prosecute their complaint in Chandarnagore under the French law; they have been unable to get the Political Agent or the Local Government to give any certificate for the prosecution of anybody in British India. They have been unable to get the sanction of the Local Government under Section 197, Criminal P.C. They know perfectly well that the Advocate-General or any other officer on behalf of the Government is not willing to commence a proceeding under Clause 24 of the Letters Patent. In order to get over this difficulty, an application is made to this Court to recommend to the Local Government that the petitioners' advocate should be clothed with the powers of the Advocate-General or other person appointed on behalf of the Local Government. Before us this somewhat remarkable application has been started by a contention that as the Advocate-General appeared in defence of this officer of the Government--the Commissioner of Police--at the hearing of the application in revision before the High Court, he has ceased to be the Advocate-General and therefore this Court ought to recommend to the Local Government to do something superseding him. That seems to me to be a confused and extravagant application which may be dismissed without further comment.

4. Another matter which may be stated by way of keeping out of this case certain of the confusions which have been introduced is that, on no view of the case has the Extradition Act or the British Foreign Jurisdiction Act of 1890 any application to this case.

5. I come now to consider the case as being an application under Rule 2 of the Crown Side Rules of the Original Side. By that rule, any application made under Clause 24 or Clause 29 of the Letters Patent is to be made in the first instance, at the appellate side and this Bench is now sitting to hear this petition in so far as one of its aspects is an application of that character. When we look to the Letters Patent it is abundantly evident, and indeed it is now conceded that Clause 24 has no application at all. Clause 24 is a clause which gives power to this High Court to remove from some Court in the mofussil a criminal trial and have it before this Court itself and it can do that upon charges preferred by the Advocate-General or by any Magistrate or other officer specially empowered by the Local Government in that behalf. The present case is not a case for removing a prosecution which would normally be competent in a mofussil Court to the High Court. This is a case of totally different character. The provision referred to has nothing to do with this matter. Clause 29 has equally little to do with the matter. As has been pointed out by Sir Barnes Peacock, C. J., in the case of Queen v. Nabadwip Chandri Goswami [1968] 1 B.L.R. Cr. 15 Clause 29 is a clause under which, if a criminal case or appeal is proceeding or is about to be begun in the mofussil, the High Court has power to remove it and to direct any other Court of sufficient jurisdiction to hear the criminal case or appeal and in that connexion there is an ancillary power that this applies not only to a criminal case or appeal but applies also to inquiries. The High Court has power to direct a preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or to try it though such a case belongs in the ordinary course to the jurisdiction of some other officer. We are not concerned with any question of transfer of a case from the mofussil to Calcutta or vice versa, nor is any case made out before us why we should transfer this case from any officer whose duty it would be to deal with it to any other officer or Court.

6. There is a further point so far as regards the Indian subject of His Majesty --names unknown--whom the applicants in this case desire to proceed against. There is a provision in the Penal Code for the trial of an Indian subject of this country for a criminal act that he may have done in any foreign country. That is a matter which is governed by the Penal Code, and in the Code of Criminal Procedure, there is an express qualification which says that that can only be done on the certificate of the Political Agent, if there is one, or otherwise of the Local Government. The position of an Indian subject of His Majesty accused of sin offence in a foreign state is perfectly clear and plain. He can be tried in an Indian Court and ho cannot, in any view, be tried except on a certificate of the Political Agent or with the sanction of the Local Government.

7. A large number of English statutes have been mentioned in this petition apparently by way of suggesting that there is power in this Court, so far as Europeans are concerned, to put them on their trial for an offence committed outside British India. As against residents within the ordinary original jurisdiction of this Court, any such application as that would appear to bo an original side application and if it lies at all it must be made upon another petition presented in proper course according to the rules of the Original Side. Any such petition when presented will no doubt be dealt with. So far as the present petition is concerned, we must treat it as an application to this Court on the appellate side and it must be altogether dismissed.

Pearson, J.

8. I entirely agree.


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