Newbould and Ghose, JJ.
1. This is an application under Clause (c) of Section 449 of the Criminal Procedure Code for leave to appeal against the conviction in a case tried by a jury in this High Court. This is the second time that such an application has been made to this Court since the power to appeal in such cases was introduced by the recent amendment of the Code of Criminal Procedure. In the first case, that of Marlindale v. King Emperor (1924) I. L. R. 52 Calc. 347., the application for leave to appeal was also heard by this Bench. It was then granted on an ex parte application. After the granting of leave to appeal, the appeal itself was subsequently heard by another Bench, and it was then held that the application for leave to appeal should be made on notice to the Crown. Farther, one of the Judges who heard that appeal was of the opinion that, though a Division Bench had jurisdiction to entertain and dispose of the application, nevertheless, as a matter of convenience and expediency, the application should have been made to the Judge who tried the case. When the application was made for leave to appeal, orders were passed that the application should be made to this Bench; at the same time we were informed that this order was no bar to our deciding whether or not applications of this nature should be made to a Division Bench or to the Judge who heard the case.
2. The point is one of considerable importance as a matter of procedure, and has been fully argued before us by the learned Standing Counsel and the learned Advocate who appeared for the petitioner. The relevant portions of Section 449 of the Criminal Procedure Code are in the following terms: 'Where... a case is tried by jury in the High Court in a Presidency-town, and the High Court grants leave to appeal on the ground that the case would, if it had been tried outside a Presidency-town, have been triable under the provisions of this Chapter, then, ...an appeal may lie to the High Court on a matter of fact as well as on a matter of 'law.' In order to determine the question of convenience and expediency the first point that arises is what is to be decided before leave to appeal is granted.
3. On behalf of the petitioner it is contended that, if he is able to show that the case, if it had been tried outside a Presidency-town, would have been triable under the provisions of Chapter XXXIII of the Code, then he has an absolute right of appeal. The learned Standing Counsel contends that before leave to appeal is granted, not only must the Court be satisfied on this point, which for convenience we may call 'the 'question of status,' but also that there are other circumstances which render the case a fit one for allowing an appeal. This issue is clearly raised in the present application, since the petition for leave to appeal is based on the assumption that there is an absolute right of appeal if the status is proved It appears to us that the contention raised on behalf of the petitioner is right. Except for the provisions in Section 449 granting an appeal, the provisions of Chapter XXXIII are, by Section 443, applicable only to cases of trials outside a Presidency-town. Section 449 gives the right of appeal against the decision of a High Court in three classes of cases. The first class is cases tried by jury in a High Court under the provisions of this Chapter, and can only apply to High Courts outside a Presidency-town. The second class of cases are those which would otherwise be tried under the provisions of this Chapter, but are, under this Code, committed to, or transferred to, the High Court and tried by jury in the High Court. In these two classes of cases an absolute right of appeal is given. It is contended by the learned Standing Counsel that, if it had been intended to give an absolute, right of appeal in the third class of cases, similar words would have been used in Clause (c) as are used in Clauses (a) and (b), and the condition of the High Court granting leave to appeal would be unnecessary. We are unable to accept this contention. The cases which come under Clause (b) would some times be tried by jury in the High Court in a Presidency-town. In such cases the accused, if convicted, would have the absolute right of appeal, and it is difficult to understand why the Legislature should give this right of appeal in some cases tried by such High Court and not in others. The necessity for the insertion of the condition of granting leave to appeal in Clause (c) appears to us to be due to the fact that in cases which come under Clause (b) the question whether Chapter XXXIII is applicable or not has been decided before the case is committed to, or transferred to, the High Court. In cases which come under Clause (c) this question has not arisen, and it was necessary for the Legislature to provide for a decision of this question. We think that the clause is not well drafted, but its meaning is that the question of 'status' is to be decided by the High Court before leave to appeal is granted, and that, if that is decided in the accused's favour, he is entitled as of right to an appeal. The wording of Clause (c) also supports this view, since it states the ground on which leave to appeal may be granted. We do not think that this ground would be stated in this mariner if other grounds had to be considered by the Court when granting leave to appeal. It is urged that the power to grant leave to appeal also includes the power to refuse leave to appeal. That is so. But if the power to grant leave to appeal is limited to a single ground, all that follows is that the Court which has power to grant leave to appeal on that ground can refuse leave to appeal when that ground is not established.
4. We hold, therefore, that the Court to which an application for leave to appeal is made has only to decide whether the case would, if it had been tried outside the Presidency-town, have been triable under the provisions of Chapter XXXIII of the Code of Criminal Procedure. The conditions that would make a case, if it had been tried outside a Presidency town, triable under Chapter XXXIII are set out in Sub-clauses (a) and (b) of Clause (2) of Section 443, and are as follows:---(a) that the complainant and the accused persons or any of them are respectively European and Indian British subjects or Indian and European British subjects; or (b) that, in view of the connection with the case of both an European British subject and an Indian British subject, it is expedient for the ends of justice that the case should be tried under the provisions of this Chapter. So far as the cases coming under Sub-clause (a) are concerned, we cannot see that the Judge who tried the case would be in a better position to decide this simple issue than a Division Bench. As regards Sub-clause (b), cases might occur in which it would be easier for the Judge who tried the case to decide whether that condition has been established, but we think that such cases would be rare, and they would not be sufficiently frequent to render it desirable that the application should be heard by the Judge who tried the case rather than a Divisional Bench. On general grounds we think it is desirable that the application for leave to appeal should be heard by a Divisional Bench rather than by a single Judge. In this country it is unusual for the Legislature to make provision for leave to appeal to be granted by the Court against which the appeal is sought to be preferred. In England the provision is more frequent, but there it is usually qualified by providing for an appeal against an order refusing leave to appeal. We think, therefore, that, since no appeal would lie against the decision of the single Judge refusing leave to appeal under this section, it is better in the interest of justice that the application should be heard by a Divisional Bench.
5. In the present case it is not disputed that the facts bring it within Sub-clause (a) of Clause (1) of Section 443 of the Criminal Procedure Code and we accordingly grant leave to appeal in this case.