1. Two applications are before me but one order will cover them both. One is a formal application by an advocate not entitled to appear and plead on the original side of this Court, for permission to appear, move, act, argue and examine witnesses and take all other incidental and consequential steps and things in this matter, &c.; The second application, which is that in which he desires to be allowed to appear is one which he informs me is substantially the same as that which he has already moved before a Division Bench of this Court consisting of the learned Chief Justice and Pearson, J.
2. It appears that the application to that Bench was made under Ch. 37, Rule 2 of the Bales of the original side, headed Crown Side Rules, which provides, that applications for the exercise of the extraordinary original criminal jurisdiction conferred on this Court by Clauses 24 and 29, . Letters Patent, shall be heard and disposed of on the appellate side; but oases directed to be tried by the High Court will be tried on the Crown side according to the provisions of the Criminal Procedure Code, by or such Judge as the Chief Justice shall appoint.
3. The learned Chief Justice dealt with that aspect of the matter at length; he considered Clause 24, Letters Patent, and observed that this was a case of a totally different character and the provision referred to had nothing to do with this matter. Continuing he observed that Clause 29 has equally little to do with the matter. The learned Chief Justice concluded:
A large number of English statutes had 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 .application as that would appear to be an original side application and if it lies at all it must be made on another petition presented in the proper course according to the rules of the original side.
4. Apparently the encouragement derived from these observations of the learned Chief Justice has resulted in this application. I have therefore for the purpose of ascertaining whether ha is entitled to appear on such application, endeavoured to find out from the advocate which are the clauses of the Letters Patent conferring the jurisdiction which he desires me to exercise, and having done that, to refer me to the rules of the original side which prescribe how such jurisdiction should be exercised. When these points have been made clear it will be possible to determine, as should be done in the first instance, whether or not it is a matter in which he is entitled to appear or one in which permission so to do may be given to him. In response to my repeated inquiries and with the opportunity afforded him by the midday adjournment of (further considering the matter in the light of my requests for information he has reiterated more than once that he found his application upon Clauses 24 and 29, Letters Patent, and Oh. 37, Rule 2 of the Rules of this Court. As soon as one proceeds to examine those not only does one find that the rule provides that applications for the exercise of the jurisdiction conferred by Clauses 24 and 29, Letters Patent, shall be heard and disposed of on the appellate side, but reference to the judgment of the Chief Justice and Pearson, ,J., shows that they have completely disposed of the application so far as it purports to be based upon those clauses of the Letters Patent and the rule in question.
5. I have no doubt that the learned Chief Justice had some provision of law in his mind when he expressed himself as he did, but I can only say that the advocate who has applied before me has not drawn my attention to any clause of the Charter upon which ho can found himself for the purposes of making an application such as apparently was contemplated by the learned Chief Justice before whom as I understand the matter was fully argued.
6. In these circumstances I can only say that there is no question of holding that the advocate is entitled or not entitled, should be permitted or should not be permitted to appear in this matter on the original side for the simple and obvious reason that as according to him it is an application under Ch. 37, Rule 2 of the Rules of this Court and no other it ought to be made to the appellate side, where it would appear (though it does not affect this particular point) it has already been made and disposed of. In these circumstances no such question ho asks me to determine as to his right of audience arises.