1. This case comes before us in the exercise of our powers of criminal revision.
2. The facts, as set out in the petition of Hursee Mahapatro, are asfollows :
A complaint was preferred to the Raja of Mohurbhunj, charging the petitioner and two others with libel. Thereupon the Raja issued summonses and warrants through the Magistrate of Midnapore for the attendance of the accused, who are residents of that district. The accused petitioned Mr. Price, the Magistrate of Midnapore, that the case should not be tried by the Raja. The Magistrate forwarded the petition, on the 30th June 1880, to the Superintendent of the Tributary Mehals (a post occupied by the Commissioner of Cuttack); and on the 12th July 1880, he addressed the Raja, requesting him to make over the papers of the case to the Magistrate of Midnapore; 'who,' it was observed, 'has the powers of an assistant to the Superintendent of the Tributary Mehals.' This officer, under his usual official seal, summoned two of the accused. They appeared before him, several witio(sic)n'es were examined, and on the 13th December 1880, he framed a charge against them under Section 500 of the Penal Code. This charge was entitle as made by the Assistant Superintendent of the Tributary Mehals.
3. On the 18th January 1881, the prosecution was abandoned against one of the accused, and Mr. Price directed his acquittal.
4. The remaining accused then examined his witnesses, and the case was argued. Judgment has not yet been delivered, and the accused has now moved the High Court to set aside the proceedings as having been without jurisdiction.
5. The question before us is, whether the proceedings before Mr. Price, either as Magistrate of Midnapore, or Assistant Superintendent of the Tributary Mehals, have been without jurisdiction; and whether, supposing them to be without jurisdiction, he is, in his capacity of Assistant Superintendent of the Tributary Mehals, amenable to the revision powers of the High Court.
6. The estate of the Raja of Killa Mohurbhunj forms a portion of territory which was ceded by the Mahrattas to the British Government in 1803; it forms one of a group of estates know as 'the Tributary Mehals.'
7. The history of these mehals, as shown by the Regulations, Acts, and orders of Government, and so far as concerns the present enquiry, is as follows:
Reg. IV of 1804, after reciting that the province of Cuttack, including Balasore and other dependencies of the said provinces, had been ceded to the East India Company in full sovereignty, and that it was necessary to provide for the administration of criminal justice formed the province into a 'zilla' with two divisions, and a Magistrate in each; extended the Criminal Regulations of Bengal; but provided that the Court should not have power to take cognizance of cases committed before the 14th October 1803, the date on which the fort and town of Cuttack surrendered to the British arms.
8. Reg. XII of 1805 provides for the collection of public revenue in Zilla Cuttack. It recites and, with certain modifications, confirms a proclamation issued by the Commissioners, dated 15th September 1804, regarding the rights of landowners in the ' Mogulbundi' tract of the zilla, viz., that part in which the land itself was responsible for the revenue; and, after generally extending the Regulations as to the settlement and collection of public revenue, it provides against the implication that any of those Regulations are, for the present, to be considered to be in force in certain enumerated jungle or hill zemindaries occupied by a rude and uncivilized race of people, with the proprietors of which engagements were formed by the late Board of Commissioners for the payment of a certain fixed Government rent or tribute to Government. The same exemption was extended to Mohurbhunj, with the provision that the Collectors should conclude a settlement with the proprietors of that estate for the payment of a fixed annual Government rent on the same principle as that observed in the case of the other hill or jungle zemindaries.
9. Reg. XIII of the same year deals with the maintenance of order and administration of justice in Cuttack, and (after excluding certain tracts) forms the rest of the district into one zilla, instead of two, as provided by Reg. IV of 1804.
10. Section 13 extends the Beng. Regulation as to criminal justice to the zilla, but exclu(sic) from its operation certain hill zemindaries and the territory of Mohurbhur
11. Reg. XIV of the same year, in providing for the administration of civil justice, makes a similar extension of the Beng, Regulation, and contains a similar exemption to that contained in Reg. XII.
12. By Reg. XI of 1816, provision was made for trying inheritance suits 'in certain tributary estates' excepted by Reg. XIV of 1805, Section 11, from the ordinary law. These suits were to be heard by the Superintendent of the Tributary Mehals, an officer who appears to have been appointed in 1814 (Hunter's Statistical Account of Bengal, Orissa, 196), but of whose appointment no official notification has been brought to our notice. The sub-division of estates was forbidden, and no suit could be taken up, the cause of action in which arose previous to the 14th October 1803, the day on which the fort and town of Cuttack surrendered to the British arms.
13. An appeal from the Superintendent lay to the Sadr Adawlut, and in some cases to the King in Council.
14. The relations of the Raja of Mohurbhunj to Government are defined by a 'treaty engagement' executed by the Raja, dated 1st June 1829. By this the Raja engaged with the East India Company always to maintain himself in submission and loyalty ; to pay annually as peshkush for the zilla Rs. 1,001; to apprehend fugitives from Orissa ; to apprehend and give up for trial on demand, any ryot who had committed ' an offence' within the Mogulbundi territories; to supply provisions to the Company's troops when 'passing through my territories; to offer no impediment to subjects of the Company passing through 'my boundaries;' 'to depute a contingent force of my own troops,' and to act with the forces of Government against recusant rajas, receiving only rations.
15. Act XXI of 1845 enabled the Governor-General in Council to remove any of the estates mentioned in Section 2 of Reg. XI of 1816 [including Mohurbhunj] and to place them under the jurisdiction of an officer to be appointed by the Government of Bengal and to be called 'Agent for the Suppression of Meriah Sacrifices,' and his subordinates.
16. The agents so appointed were to be guided by instructions from time to time received from the Government of India through the Local Government; and the Government was empowered to prescribe rules for their guidance, and to prescribe the finality of their decisions in civil cases, and the class of criminal cases which they were to submit to the Sadr Court.
17. Act XX of 1850, after reciting that certain zemindaries and Mohurbhunj were temporarily exempted by Regs. XII and XIII of 1805 from the ordinary evenue and criminal law, and that it was desirable to provide for disputes as to the boundaries of zemindaries, provided that any boundary dispute between the excepted estates and estates subject to the Beng. Regulations should be tried by the Superintendent of the Tributary Mehals, subject to confirmation by the Government of Bengal. On the 24th September 1851, the Lieutenant Governor of Bengal appointed Mr. Schalch, the Magistrate of Midnapore, to be an ex officio Assistant to the Superintendent of the Tributary Mehals. In conformity with orders of the Secretary of State, dated 26th July 1860, adoption sanads were granted to the Rajas of these mehals, which are therein described as 'estates' when subsequently the word estates' was directed by the Lieutenant-Governor to be substituted. In speaking of them, the Government of India directed that the designation of 'state' as employed by Lord (sic)nning should remain unaltered.
18. On the 12th December 1870, the Secretary of the Bengal Government addressed the Magistrate as 'ex officio Assistant Superintendent, Tributary Mehals,' informing him that, as ex officio Assistant Superintendent of the Tributary Mehals, he was empowered to take up for trial all offences committed within the Tributary Mehals not punishable with death, and to pass sentences not exceeding seven years, submitting his proceedings, in each case, to the Superintendent: trials thus conducted were to be, as far as possible, in accordance with the Criminal Procedure Code.
19. In 1872, the Government of India vested the Superintendent of the Tributary Mehals with the powers exercised by a Sessions Judge in Regulation Districts, and with power to hear appeals from sentences passed by any subordinate officer in Tributary Mehal cases.
20. On the 30th April 1873, the Government of Bengal addressed the Superintendent of the Tributary Mehals, in answer to a letter submitting a tabular statement of the powers then exercised by officers in the tributary estate of Orissa, and the powers which, in the opinion of the Superintendent, ought to be exercised in accordance with the spirit of the new Criminal Procedure Code; authorized the Superintendent to exercise the powers of Magistrate of a District, and of a Sessions Judge under Section 15 of the Act; and gave him power to hear appeals from sentences under Section 36. The Magistrates and ex officio Assistant Superintendents of Tributary States were invested with the powers of a Magistrate of the first class and under Sections 36 and 222 of the Code.
21. Up to this point the effect of the Acts of the Government, political, executive, and legislative, appears to have been---1st, that the Tributary Mehals had become an integral portion of British India within the scope of the general powers of the Government, and subject to any legislative enactment duly passed in their behalf; and 2ndly, that they had been expressly exempted from the ordinary law of the country, and were administered by specially appointed officers under special enactments. As to these orders, it is important to remember that, by vitrue of Section 25 of the Indian Councils Act, 1861 (24 and 25 Vict., c. 67) do question can arise as to the validity of any rule, law, or regulation made by the Governor-General, or the Local Government, for Non-Regulation Provinces prior to 1st August 1861, on the ground of its having been made otherwise than in accordance with existing law.
22. We have now to consider whether the position of Mohurbhunj was affected by the Laws Local Extent Act and Scheduled Districts Act passed in 1874.
23. It has been urged that, inasmuch as Mohurbhunj is not specified amon the Scheduled Districts of Bengal in the first schedule of Act XIV of 1874, or the sixth schedule of Act XV of 1874, it is under Section 3 of the latter Act, subject the ordinary law in force throughout British India.
24. This contention, however, proceeds, in my opinion, on a misconception of the import and effect of those measures.
25. It is obvious from the preamble to Act XIV of 1874, that the ' Scheduled Districts' specified in the schedules of that Act and Act XV were not the whole but merely 'among' the parts, of India which had either never been brought with(sic) had been removed from, the ordinary jurisdiction of the Courts.
26. It is indeed clear from the preambles and general language of the Act Section 3), that the object was to declare, and in some instances consolidate, the existing law, and to clear away uncertainties as to jurisdiction where they existed,---not to alter the political position of any district not expressly mentioned in them; and it was, no doubt, with this intention that Section 8 (k) of Act XV provided that nothing in the Act should affect the operation of any enactment not mentioned in any of the schedules.
27. Now Regs. XIII and XIV of 1805, and Reg. XI of 1816, Act XXI of 1845 and Act XX of 1850, were in force at the time of the passing of the Laws Local Extent Act. They are not mentioned in the Schedule to Act XV of 1874, and they are, therefore, unaffected by its provisions.
28. The position of the Tributary Mehals was, accordingly, in my opinion, unaffected by the two measures in question. The subsequent repeal of some of the Regulations and Acts just mentioned would not, owing to the saving Clause inserted in Repealing Acts,---e.g, s. 1 of Act XVI of 1874,---affect any established jurisdiction or form of practice or procedure or existing usage, office or appointment; and we must hold accordingly, that the Tributary Mehals are now, as they were in 1874, a portion of British India, which the Government has been pleased to exempt from the ordinary law and jurisdiction of the Courts, and to govern by means of special officials and enactments. If this be so, and if those special enactments have the effect of removing this part of the country from the ordinary criminal supervision of the High Court, it would be questionable whether the High Court has jurisdiction to interfere with the proceeding of the officials appointed by Government to administer the criminal law in the parts of the country so specially circumstanced.
29. As to the laws now actually in force in Mohurbhunj, it is impossible to deny that the effect of Section 3 of Act XV of 1874 has been to produce some obscurity as to the position of those parts of India which, not being Scheduled Districts as enumerated in the schedules to the Acts, are yet not administered in complete accordance with the 1aws declared to be in force throughout the whole of British India except the Scheduled Districts; and that the difficulty thus occasioned is enhanced by the provisions commonly inserted in subsequent Acts 'that the measure shall extend to the whole of British India except the Scheduled Districts as defined in Act XIV of 1874.' It might be urged with great cogency that the intention of the Legislature, as gathered from these Acts and especially from the last para. of Section 1 of Act XIV of 1874, was, that every part of British India not subject to the ordinary law should be administered in accordance with those Acts, or with a scheme framed under the provisions of 33 Vict., c. 3.
30 It is, however, unnecessary, for the purpose of the present decision to come t to a precise conclusion as to the legal position of Mohurbhunj, the validity of the various orders of Government concerning it, or the competence of the officers appointed to carry out those orders. The act with which we are concerned, was not done in Mohurbhunj by an officer empowered to exercise jurisdiction there, but in Midnapore by a Magistrate empowered to act under the Criminal Procedure Code in an ordinary district and trying a resident of that district. Now, whatever may be the powers of the Government as to Mohurbhunj, there is, in my opinion, no ground for the contention that those powers extend to empowering the legally constituted tribunals of a British district to follow in that district, and in the case of residents in it, any procedure, and exercise any other jurisdiction than that created by the law. When, therefore, the Superintendent of the Tributary Mehals proceeded to exercise a power not conferred on him by the order of 1872, in transferring a case from one district to another, and when the Magistrate of Midnapore, dealing in Midnapore with a resident in the district, proceeded to exercise magisterial powers under another style, and to depart in some material particulars from the provisions of the Court as to procedure, these officers seem to me to have been acting without jurisdiction, and their proceedings ought, accordingly, in my opinion, to be set aside.
31. One Dinobundo Patro charged Hursee Mahapatro before the Raja of Mohurbhunj with defamation. The accused, apparently, is a ryot of the Raja, holding lands and residing in Midnapore ; and process was issued by the Raja through the Magistrate of Midnapore for his attendance at Mohurbhunj. He petitioned the Magistrate of Midnapore not to execute this process, on the ground, not that the Raja had no jurisdiction to try him, but that, as the Raja was personally concerned, a fair trial would not be held. The Magistrate of Midnapore, who also holds the undefined office of Assistant Superintendent of Tributary Mehals, on the 30th June 1880, addressed the Commissioner of Cuttack as Superintendent, and apparently in that capacity his official superior, recommending that the case should be transferred for trial either to Midnapore or Balasore.
32. On 12th July, the Superintendent of the Tributary Mehals directed the case to be tried by the Magistrate of Midnapore, and requested the Raja to transmit the record that officer. The trial then took place before the Magistrate of Midnapore, who, in the course of the proceedings, also signs himself as Assistant Superintendent.
33. The petitioner having thus succeeded in procuring the transfer of the case to Midnapore, has obtained a rule from this Court on the ground that the proceedings of the Magistrate of Midnapore are without jurisdiction. I regret that, from the nature of this objection, we have been compelled to have the matter fully argued, for ordinarily such conduct would be deserving of no consideration.
34. This case has raised points of difficulty regarding the relations of the British Government towards the territory of Mohurbhunj, the jurisdiction of the neighbouring Magistrates and the Commissioner of Cuttack, or, as they are called, Assistant Superintendents and the Superintendent of the Tributary Mehals ; and finally, whether we have any power to interfere either as a Court of revision under the Code of Criminal Procedure, or under other powers conferred on us under the Charter of the High Court.
35. As regards this last point it is argued, that the Magistrate of Midnapore and the Superintendent of the Tributary Mehals, having been vested with certain powers by the Government of Bengal, and in the exercise of those powers being in no way subordinate to the jurisdiction of this High Court, we can have no control over their proceedings, and at any rate we can have no control until they shall have terminated in such a manner as to enable us to exercise our authority as in a writ of habeas, corpus. It is sufficient, however, for the purposes of the present case, that I should state that, in the view that I take of the relations between the Government and Mohurbhunj, it is unnecessary for me to consider the full extent of this argument. I should, however, be very disinclined to refuse to act on a prima facie good objection to proceedings taken by a judicial officer in British territory acting under authority of a very doubtfulcharacter, until the person against whom such proceedings were directed, had suffered in some way from the consequences of such doubtful jurisdiction. It is our duty to prevent, rather than endeavour to cure, the effect of injuries. If the argument be pressed to its extreme, it would be necessary for a man to be imprisoned, or to have been whipped, or even to be under sentence of death, before we could intervene, a position it would be impossible to accept.
36. The point which we are really called upon to decide is, whether the territory of Mohurbhunj is a foreign state or British India. I would, however first of all remark, that even supposing, for purposes of argument, that Mohurbhunj is a foreign state, the Magistrate of Midnapore would have no jurisdiction to try the petitioner, because the offence charged (defamation) being an offence under chap. xxi of the Penal Code, and no complaint having been made to him, he has, under Section 142 of the Code of Criminal Procedure, no authority to take cognizance of it. Further it may be remarked, that the Magistrate would not be competent to deliver him to the Raja of Mohurbhunj for trial, inasmuch as the Magistrate in not a political officer, as denned in Section 3 of the Extradition Act (XXI of 1879), appointed by one of the authorities mentioned in Clause 2. Nor, as far as we are informed, is there any officer who could so act, supposing Mohurbhunj to be foreign territory.
37. I will now proceed to consider whether the tract of country known as Mohurbhunj is British India as defined by law: and to determine this, it is necessary to consider the manner in which this territory has been dealt with by the Legislature since its conquest by the British in 1803. From the terms of the treaty entered into between the Honourable East India Company and Senab Sahib Roghojee Bhoonsla, on 17th December 1803, it appears that 'the province of Cuttack, including the port and district of Balasore, was ceded in perpetual sovereignty to the tormer; and artical 10 refers to certain treaties made antecedently by the British Government with feudatories of the Senab Sahib Sooba, which were then confirmed (see Aitchison's Treaties, Vol. III, pp, 97-98). These treaties were made with several of the chiefs of the Cuttack Tributary Mehals as they are now called, and are reproduced in Aitchison's Treaties, Vol. I, pp. 118 et seq. The Chief of Mohurbhunj was not among other chiefs, but that is not material, for it is clear that Mohurbhunj, as well as other Tributary Mehals, was ceded as portion of the province of Cuttack. The terms of Reg. IV of 1804 and of Regs. XII, XIII, and XIV of 1805, show, that within the term 'dependencies of the province of Cuttack' was included the territory of Mohurbhunj.
38. Reg. IV of 1804, Section 7, gives the 14th of October 1803 as the date of this conquest, and the commencement of the jurisdiction of the Courts established under that law for the administration of justice in criminal cases and the authority of the Police. And it was declared that the general Regulations in force in the provinces of Bengal and Behar should be in force, unless it should be otherwise specially directed in any such Regulation.
39. In the following year (1805) three Regulations were passed relating to the Zilla of Cuttack, namely: Reg. XII, for the settlement and collection of public revenue ; Reg. XIII, for the maintenance of peace and the support and administration of the Police ; and Reg. XIV, for the administration of justice in civil cases: but the territory of Mohurbhunj, together with the estates of other hill or jungle rajas or zemindars, now denominated the Tributary Mehals, was expressly excluded from the operation of these Regulations, the concluding portion of each of those Regulations, containing a provision to that effect. The power of legislating for the territory of Mohurbhunj was, therefore, clearly asserted by the Regulations of 1805, but it was declared that, for the present, the exercise of such power would be reserved.
40. The preamble of Reg. XI of 1816 is to the following effect:---' Whereas it is necessary that provisions should be made for receiving, trying, and deciding claims to the right of inheritance or succession in certain tributary estates in Zilla Cuttack, which were excepted by Section 11, Reg. XIV of 1805, from the operation of the general rules for the administration of civil justice, established in the provinces of Bengal, Behar, and Orissa ; and whereas the nature of the tenures by which those estates are held, the character of the inhabitants, and other local circumstances render it expedient that the estates in question should not be subject to partition, but should descend entire and undivided to the persons respectively having the most substantial claim according to local and family usage, the following rules have been enacted, to be in force from the date of the promulgation of this Regulation in Zilla Cuttack.' That law provided for a regular procedure, with, a right of appeal first to the Sadr Dewany Adawlut, and ultimately to the King in Council, in the matters above described. This is the first occasion in which I can find mention made of the office of Superintendent of Tributary Mehals.
41. The next legislative enactment, in which reference is made to the Tributary Mehals, is Act XXI of 1845. That was an Act passed for the suppression of Meriah sacrifices in the Hill Tracts of Orissa. Section I made it 'lawful for the Governor-General in Council, by an order in Council, to remove from the jurisdiction and superintendence of the Commissioner and Superintendent of the Tributary Mehals in Cuttack any of the tributary estates specified in Section 2, Beg. II of 1816 of the Beng. Code, and o place any such estates under the jurisdiction and superintendence of such officer (to be called the Agent for the Suppression of Meriah Sacrifices) and his subordinates, as shall from time to time be appointed by the Government of Bengal on that behalf.' It is important too to note the terms of Section 6, which provide that it shall be c(sic)r patent for the Governor-General in Council to prescribe such rules as hp(sic) deem proper for the guidance of such Agents and subordinates, and to determine to what extent the decision of the said Agents in civil suits shall be final, and in what suits an appeal shall lie to the Sadr Court, and to define the authority to, be exercised by the said Agents in criminal trials, and what criminal cases they shall submit for the decision of the Sadr Court.
42. Thus it appears from the terms of Act XXI of 1845, that the Commissioner of Cuttack, as Superintendent of Tributary Mahals, had some power over that territory, the exact extent of which power has not been made known to us; but that power, whatever it was, was not conferred by any legislative enactment. It appears, however, that Legislature, in empowering the Governor-General in Council to remove that territory from his jurisdiction, thought it necessary specially to empower the Governor-General in Council to pass executive orders, having the force of law, regulating and determining how far the orders of the agents should be final, in what suits an appeal should lie, what should be their powers in criminal trials, and what cases they should submit for the decision of the Sadr Court.
43. The preamble of Act XX of 1850 is in somewhat the same terms as that of Reg. XI of 1816, in declaring that the territory of Mohurbhunj and certain Jungle and hill zemindars in the Zilla of Cuttack were temporarily exempted from the laws in force in other parts of India subject to the Government of Bengal. But it was found necessary to give jurisdiction to some officer of Government to determine disputes regarding the boundaries of those zemindaries. Accordingly, the Superintendent of Tributary Mahals was appointed for this purpose. These are all the legislative enactments specially relating to Mohurbhunj and other Tributary Mehals up to 1874. Act XIV of that year declared that that Act extends, in the first instance, to the whole of British India within the territories mentioned in the first schedule thereto annexed; and among these schedules are to be found only two from among the Tributary Mehals. These two Mehals, as they are termed, are the mehals of Angool and Bunki, which had been taken under the direct management of Government some years previously in consequence of the misbehaviour of their hill rajas or zemindars.
44. Act XV of the same year, which was passed simultaneously with Act XIV, declared, that all the Acts mentioned in the first schedule thereto annexed are now in force throughout the whole of British India, except the Scheduled Districts. And Section 6 extended certain other enactments throughout the whole of the territories now subject to the Government of the Lieutenant-Governor of Bengal, except the Scheduled Districts subject to such Government. The 'British India' has been declared to be thus defined in all Acts made by the Governor-General in Council, unless there was something repugnant to the subject or context thereof. 'British India' shall mean the territories for the time being vested in, Her Majesty by Statute 21 and 22 Vict, c. 106, and that Statute, Section 1, declares, 'that the Government of the territories now in the possession or under the Government of the East India Company.........shall cease to be vested in, or exercised by, the said Company, and all territories in the possession or under the Government of the said Company.........shall become vested in Her Majesty;......and for the purpose of this Act 'India' shall mean the territories as vested in Her Majesty as aforesaid and all territories which may become vested in Her Majesty by virtue of any such rights as aforesaid.'
45. So Far then as concerns the terms of the Regulations and Acts of the Government in its legislative capacity, it would seem that the territory of Mohurbhunj is 'British India,' and, unless specially exempted, is subject to the same laws as the rest of British India. But it seems to me that, although Mohurbhunj is British India, and although the Acts of 1874 declared what was the law for British India, inasmuch as the concluding Sections of Regs. XII, XIII, and XIV of 1805, which expressly excluded the Tributary Mehals 'for the present'from the operation of the general law of the country, we cannot rightly hold that the general terms of the Acts of l(sic)/4 override the special terms of the Regulations of 1805; and I am confirmed in this opinion on finding that although there has been a very extensive repeal of the older Regulations and (sic).cts, those parts of the Regulations of 1805 to which I have referred are still in force. So far then, I am inclined to think that Mohurbhunj is British India, but at present not subject to any laws not specially extended to it.
46. It is, however contended, that the fact that treaty engagements wore entered into by the British Government with the rajas and zemindars of these Tributary Mehals shows that they were regarded as independent rulers; and we have been referred to a treaty engagement published at pages 184 and 185 of the first volume of Aitchison's Treaties, Engagements, and Sanads.
47. Now, as regards the so-called treaty engagement, it appears to me that there is nothing in its terms which recognized the absolute independence of the Raja of Mohurbhunj from the authority of the British Government. The document is headed 'Treaty engagement executed by the Raja of Killa Mohurbhunj, a Tributary Mehal subordinate to Cuttack, in the Sooba of Orissa.' By it the Raja engages to maintain himself in submission and loyalty to the Government; to pay annually in perpetuity for himself, heirs, and successors 1,001 sicca rupees as peshkush for the said Killa; to apprehend and send to the authorities any resident of British territory who may flee into Mohurbhunj; to deliver up any ryot of Mohurbhunj who may commit an offence in British territory ; and to refrain from enforcing any claim of his own on any resident of British territory, notifying the circumstances to the authorities, and acting on such orders as he might receive. He further engages to cause rassud, &c.;, to be supplied to Government troops passing through his territory, and to help them with any further assistance that might be necessary, and that he will depute a contingent force of his own troops with the forces of Government for the purpose of coercion and the bringing of any recusant raja or other person into subjection to the aforesaid Government. Lastly, he relinquishes a claim on account of a ferry.
48. Now it is only necessary to consider the terms regarding the deputation of a contingent force of his own troops by the Raja to act with the forces of Government, with a view to determine whether that constitutes any ground for supposing the exercise of an authority independent of the Government. It is notorious that, even in present days, native chiefs in British territory, especially those in distant and jungle portions, do maintain a certain number of armed retainers; and I have no doubt that, at the time of the signing of this engagement, the number of such retainers was larger than that now existing. A body of such men, known as Pykes in Orissa in Government territory, existed even until a recent date. The preamble to Reg. XIII of 1805 states, that it was the practice in the province of Cuttack, when under the Mahratta Government, to vest the immediate maintenance of the peace in certain Sirdar Pykes, also called Kandytes, aided by infer or Pykes, under the orders and control of the said Sirdars, for whose support lands were assigned under the 0(sic)..... 3 and authority of the said Government; and that the general control of the said Sirdars and other Pykes was vested, at the time of conquest of the province of Cuttack by the British arms, in the zemindars, talookdars farmers, and other holders of land within the limits of their respective estates and farms. This state of affairs, so far as regards the province of Cuttack, with the exception of the Tributary Mehals, was discontinued by that Regulation ; and it may fairly be supposed that what existed in 1805 throughout the districts of Cuttack continued in the Tributary Mehals, which were disconnected therefrom in 1805, until 1829, and that this is what was referred to in the treaty engagement entered into by the Raja of Killa Mohurbhunj on the 1st of June of that year. In other respects,---that is to say, as regards the settlement of the peshkush payable by the Raja to the Government, the provisions of the treaty engagement are clearly within the terms of Section 37 Reg. XII of 1805; and the other terms are only such as are ordinarily found in kabuliats executed by the zemindars and farmers of the Government revenue with Government. I cannot, therefore, regard this engagement otherwise than as an agreement on tl(sic) part of the Chief or Raja of Mohurbhunj to the terms of the settlement concluded with the Collector of Cuttack under Section 37, Reg. XII of 1805, such as that officer was deputed to make.
49. So far then as the course of legislation and the Acts of Government with regard to Mohurbhunj up to comparatively recent times, that territory was never even regarded as a foreign state. Government have, from time to time, asserted their power to legislate for it; and, in bringing it within the operation of some laws, have declared that they, for the present, suspended further legislation. The concession of the right to adopt to the chiefs of the Tributary Mehals under Lord Canning's Proclamation of 1862, and the recent change in the designation of their lands as 'states' instead of the term 'estates,' which had been used for nearly seventy years, cannot alter their status. On these grounds, I am of opinion that Mohurbhunj is not foreign territory, but that it forms a part of British India at present specially exempted from the operation of the laws in force in British India.
50. I have already referred to the indefinite character of the authority exercised by the Commissioner of Cuttack as Superintendent of the Tributary Mehals. Up to 1845 some authority was so exercised, but by Act XXI of that year, power was given to the Governor-General in Council to withdraw it, and he was empowered to confer whatever civil and criminal powers he thought proper on the Agent for the Suppression of Meriah Sacrifices and his subordinates. When that office was abolished, is not very material; it is sufficient to state that the Act was repealed in 1874. But it is clear that the Commissioner of Cuttack, as Superintendent of the Tributary Mehals, and the Magistrates of the Districts surrounding that tract of country as assistants to the Superintendent of Tributary Mehals, have, from time to time, been empowered by the Government of Bengal to exercise powers as Criminal Courts of various grades in the Tributary Mehals. We have not been informed under what authority these powers were conferred, and looking at the state of the law which I have already discussed, I am of opinion that the Governnent of Bengal acted beyond its authority in so investing these officers. I have come to this conclusion, because it was thought necessary by a special legislative enactment (Act XXI of 1845) to empower the Governor-General in Council to establish Civil and Criminal Courts in the Tributary Mehals and to define the powers of the several grades of these Court, and such power has been cl(sic)jd and exercised by the Government of Bengal without any such authority; and next, because the fact that the Indian Councils Act, 24 and 25 Vict., c.67, Section 25, by validating all orders passed by Government in Non-Regulation Provinces, amongst which the Tributary Mehals may be fairly placed, shows that such orders were without the sanction of law and required legal confirmation. Up to 1861 any such orders are now not open to question, but this does not affect the validity of the orders conferring magisterial powers on the Magistrate of Midnapore over Mohurbhunj.
51. We have been informed by the Standing Counsel Mr. Phillips, who, having first appeared for the private prosecutor, appeared for the Government on our intimating that an officer of Government should argue the case before us on behalf of Government, that, as stated in a printed memo from the Bengal Secretariat that he handed up to us, the Bengal Government determined to pass no permanent or defined rules 'on the subject of the relative jurisdiction of the Superintendent, Tributary Mehals, and the hill rajas regarding the trial of criminal offences,' but directed that 'the spirit of certain proposed rules should be acted up to in all future cases with certain limitations ; and that the Rajas should be informed that they are ordinarily amenable to the Superintendent's Court, subject to such instructions as may, from time to time, be furnished by Government.'
52. On the 12th December 1870, the Secretary to the Government of Bengal informed the Magistrate of Midnapore, that, as an ex officio Assistant Superintendent of the Tributary Mehals, he was 'empowered to take up for trial, all offences committed within the Tributary Mehals not punishable with death, and to deliver judgment and to pass sentence of simple or rigorous imprisonment for a period not exceeding seven years;' that his 'proceedings will, in each case, be subject to the approval and sanction of the Superintendent, Tributary Mehals, to whom they should be forwarded;' and that 'the trials should be conducted, as far as possible, in accordance with the provisions of the Criminal Procedure Code.'
53. On the 8th August 1872, the Viceroy and Governor-General in Council sanctioned the proposal of the Lieutenant-Governor of Bengal to vest 'the Superintendent of the Tributary Mehals, Cuttack, with the same powers as are exercised by Sessions Judges in the Regulation Districts, and with power to hear appeals from all sentences passsed by any subordinate officer in Tributary Mehal cases.'
54. On the 30th April 1873, the Secretary to the Government of Bengal informed the Superintendent, Tributary Mehals, that 'the Lieutenant-Governor authorized him to exercise the powers of a Magistrate of a District, the powers of a Sessions Judge under Section 15, chap. iii of the new Criminal Procedure Code, and gave him power to hear appeals from sentences under Section 36.'
55. But the Tributary Mehals being British India and being specially excluded from the operation of all the laws in force in British India, unless expressly extended to them, as I have already stated, I can find no authority for these orders of Government conferring powers on particular officers over criminal offences committed within the Tributary Mehals. It appears to me that until so expressly declared by legislative enactment there were no penal laws in force in the Tributary Mehals, and that consequently there was no authority to invest officers with certain powers to administer an unknown and uncertain pena' law. We have been informed on the authority of Hunter's Statistical Gazetteer, Vol. XIX, p. 198 (an authority not binding on us), that the Penal Code was, by order of the Government of India dated 18th December 1860, declared applicable to the Tributary Mehals. No such order can be found in the Government Gazette, nor have we on enquiry been able to obtain it from the offices of the Government of India. But it would also seem, from what has taken place in the proceedings now before us, that the jurisdiction of the Raja of Mohurbhunj, in Mohurbhunj, is admitted, but that jurisdiction is, it is said, subordinate to that of the Superintendent, Tributary Mehals, who can interfere with his proceedings. The Superintendent has been vested with certain powers under the Code of Criminal Procedure, and he has been told by Government that 'trials should be conducted, as far as possible, in accordance with the provisions of the Criminal Procedure Code;' but that Code gives the power of withdrawing cases from one Court and transferring them to another, only to a High Court or to the Local Government. If he was acting under the Code, he exceeded his powers; but, as I have before said, I can find no authority for such interference at all.
56. Next, even supposing the case to have been lawfully withdrawn from the Raja of Mohurbhunj, I can find no authority for the Magistrate of Midnapore trying it either as Magistrate or as ex officio Assistant Superintendent of Tributary Mehals in Midnapore.
57. For all these reasons, I am of opinion that the rule must be made absolute, and that the proceedings taken before the Magistrate of Midnapore, or Assistant Superintendent of Tributary Mehals, must be declared to have been without jurisdiction and of no effect.