1. This is an application on behalf of Cyril Bertram Plucknett who was tried before Sen J. and a special jury in the High Court Sessions on a charge of murder by causing the death of one Edward Gordon Jones and thereby committing an offence under Section 302, I. P.C. Cyril Bertram Plucknett was, by the unanimous verdict of the jury, found guilty of murder and sentenced to death. An application was made on his behalf to the Advocate-General of Bengal for a fiat under the provisions of Clause 26 of the Letters Patent of this High Court. The preceding Clause (i.e., Clause 25) provides as follows:
There shall be no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction, which may be constituted by one or more Judges of the High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court.
2. No point of law was in fact reserved by the learned trial Judge and further the Advocate-General refused to grant a fiat under the provisions of Clause 26, Subsequently, an application was made to this Court under the peculiar and special provisions of Ch. 33, Criminal P.C., for leave to appeal to a Bench of this Court. That application was also refused on Wednesday last, the 4th August. The present application is made under Clause 41 of the Letters Patent. That clause is in these terms:
And we do further ordain that, from any judgment, order or sentence of the said High Court of Judicature at Fort William in Bengal, made in the exercise of original criminal jurisdiction, or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court in manner hereinbefore provided, by any Court which has exercised original jurisdiction, it shall be lawful for the persons aggrieved by such judgment, order, or sentence to appeal to us, our heirs or successors in Council, provided the said High Court shall declare that the case is a fit one for such appeal and under such conditions as the said High Court may establish or require subject always to such rules and orders as we may, with the advice of our Privy Council hereafter make in that behalf.
3. What we are now asked to do therefore is to declare that although no appeal can be made to this Court the case of Cyril Bertram Plucknett is one fit for an appeal to His Majesty in Council. Mr. J.P. Mitter appearing on behalf of the convicted man has stated quite frankly that, as no point of law was reserved or referred for the opinion of this Court, he can only succeed if at all on this application if he can succeed in bringing himself strictly within the conditions laid down by the Judicial Committee of the Privy Council as being those on which they will be disposed to entertain, appeals in criminal matters. Mr. Mitter at the outset argued that the provisions of Clause 41 are disjunctive in character and that the convicted person has a right to come to this Court and ask for a declaration of the kind now sought, provided that either a point of law has been reserved or the High Court declares the case to be a fit one for an appeal to His Majesty in Council. Whether that is altogether the right view of the meaning of the clause seems more than a little doubtful, having regard to certain observations in the decision of their Lordships of the Judicial Committee of the Privy Council in Barendra Kumar Ghosh v. Emperor , the head note of which says inter alia:
Quasi. Whether an appeal lies to the Privy Council under Clause 41 of the Letters Patent save where the decision appealed from is upon a question reserved for the opinion of the Court by a Court of Original Criminal Jurisdiction.
4. It is however not necessary for our present purpose that we should express any definite opinion on that point, having regard to the submissions made to us by Mr. Mitter with regard to the particular features of this case. We propose to deal with the matter upon the basis of whether, in the circumstances of this case, we ought to declare that it is a fit one for an appeal of the kind contemplated under the provisions of Clause 41. The learned Standing Counsel was apparently under the impression that this application, is the first of its kind to be made to this Court. That is not in fact the case. There have been other, though very unfrequent, applications of similar nature. I find, for example that in the year 1929 an application was made to this Court, In the matter of G.V. Raman and others, for a certificate under 01. 41 of the Letters Patent that the case was a fit one to be taken on appeal to His Majesty in Council. There, Rankin C.J., on 23rd July 1929 in the course of the judgment which he gave with the concurrence of C.C. Ghose, J., in dismissing the application made these observations:
Mr. Chatterji has argued this case upon the basis that for the present purpose the case will require to satisfy the conditions laid down by Lord Watson in In re Dillet (1887) 12 A.C. 459 before we can give the certificate that is required under Clause 41 of the Letters Patent and there appears to be authority to that effect. I am not in any way inclined to dispute this but whether that be necessary or not, I am of opinion that there is no good reason why in this case we should grant the certificate that is asked for.
5. We are clearly of opinion that Mr. Mitter was quite right to limit his argument by saying that in order to succeed he must bring himself within the principles and the conditions laid down by their Lordships of the Judicial Committee with regard to criminal matters sought to be taken by way of appeal to His Majesty in Council. These principles have long been settled and they are enunciated and explained in a number of cases which have come before their Lord-ships subsequently to what is now the leading case: In re Dillet (1887) 12 A.C. 459. I need only refer to one or two of these oases. In Channing Arnold v. Emperor (1914) 1 A.I.R. P.C. 116 it was held that the practice of the Judicial Committee with regard to appeals in criminal matters as laid down in Queen v. joy kisen Mookerjee (1861-63) 1 Moo P.C. (N.S.) 272 at p. 297 and Falkland Islands Co. v. Queen (1863) 1 Moo P.C. (N.S.) 299 was not altered in any respect by the decision in In re Dillet (1887) 12 A.C. 459 ubi supra and later cases. It seems to be quite clear that the Judicial Committee will not inter, fare with the course of criminal law unless there has been such an interference with the elementary right of an accused as has placed him outside the pale of the regular Law or unless within that pale there has been so manifest a violation of the principles of natural justice that their Lordships are satisfied first, that the result arrived at was opposite to the result they themselves would have reached and, secondly, that the same opposite result would have been reached by the local tribunal even in the absence of an irregularity. There is a very important enunciation of the position we are now considering in Ex parte Macrea (1893) A.C. 346, which came before the Judicial Committee from the High Court at Allahabad. In the course of his judgment there given, Lord Herschell, the Lord Chancellor at page 94 said:
Their Lordships see no reason to believe that there was any misdirection on the part of the learned Judge, or that there has been a miscarriage of justice. But they do not desire to dispose of the petition simply upon that ground. If there be any foundation for this application, it rests upon this: that the learned Judge did not in his charge to the jury correctly construe Section 511 of the Penal Code, or that he left the case to the jury when there was no-evidence to go to the jury. In their Lordship's opinion, if they were to sanction an appeal in the present case, it would be very difficult to refuse leave to appeal in all cases in which it could be established that there had been a misdirection by the Judge who tried the case. There are, no doubt, very special and exceptional circumstances in which leave to appeal is granted in criminal oases; but it would be contrary to the practice of this Board, and very mischievous, if any countenance were given to the view that an appeal would be allowed in every case in which it would be shewn that the learned Judge had misdirected the jury.
6. The headnote summarized that as follows:
Although in very special and exceptional circumstances leave to appeal in criminal cases may be granted, misdirection by a Judge, either in leaving a case to the jury where there has been no evidence, or founded on an incorrect construction of the Penal Code, even if established, is insufficient for that purpose specially where no miscarriage of justice has resulted,
7. In the present instance, Mr. Mitter has relied on what he says were certain misdirections made by the learned Judge in the course of his summing up to the jury. Having regard to the observations of the Lord Chancellor, it is quite clear that before we could grant an application of this kind it would be necessary for us to come to the conclusion that in the case of Cyril Bert-ram Plucknett, there were very special and exceptional circumstances. It would not be sufficient merely to come to the conclusion that there was some misdirection on the part of the learned Judge. I would refer to one more authority, one constituted by certain decisions of the Judicial Committee which were specially reported by the direction of their Lordships in order that the conditions on which they will entertain appeals in criminal cases might be made public and brought to the knowledge of all legal practitioners in India, and, which therefore are of special moment to learned Counsel appearing on behalf of accused per. sons. The report I refer to appears under the titles Rustom v. King-Emperor and Randhir Singh v. King-Emperor (which were petitions for Special Leave to Appeal from the Allahabad High Court); and Taba Singh v. King-Emperor and Khuda Baksh v. King-Emperor (which were petitions for Special Leave to Appeal from the Lahore High Court) Taba Singh v. Emperor . The headnote in the report includes the following statement:
It ought to be understood very clearly in India that there is not a chance of the Judicial Committee turning itself into a mere Court of Criminal Appeal.
8. That is really an excerpt from the opinion of Lord Dunedin which amplified reads as follows:
I should like to say this, if the President does not object to my saying it. I have now, since I have been here a good long time, sat in a great many of these cases, and, I may be wrong, but I do not remember any attempt so glaringly made, as in these two oases of yours (referring to counsel for the appellant) to bring up a question of mere evidence of course, I can quite understand that a man who is going to be banged clings to any straw, and I can still more understand that you only do your duty in putting forward what you have done; but I do think that it ought to be very clearly understood in India that there is not a chance of our turning ourselves into a mere Court of criminal appeal and we could not take up these two oases which we have seen today without turning ourselves into a Court of Criminal Appeal.
9. Viscount Haldane said (at p. 517):
We are dealing with the East. It is very desirable that what Lord Dunedin has said should be well understood all over India, As for preventing people from appealing to the King-Emperor, we are dealing with the East and they have a constitutional right to present their petitions for leave to appeal and get us to dispose of them; but it is an idle form when it is a question of evidence. The sooner they understand, the better.
10. Then in connexion with the petition of Taba Singh, Lord Buckmaster said - and his words, to my mind, are of vital significance in the present case - I am referring to the case as a whole not merely to this application:
Counsel who has appeared before their Lordships has done his clear duty of placing before this Board such facts as appear to him relevant to obtain the success of this appeal. But their Lordships must express their regret that the pains that they have taken to make clear the rules upon which this Board will proceed in considering questions relating to criminal appeals should have been so widely misunderstood or so wholly ignored as to have permitted the presentation of the petition in this case.
11. His Lordship proceeded to say:
The responsibility for the administration of criminal justice in India this Board will neither accept nor share unless there has been some violation of the principles of justice or some disregard of legal principles; this Board will not consider appeals brought from the criminal jurisdiction in the Province of India.
12. Then follows what in one way is perhaps an even more emphatic and significant pronouncement:
Their Lordships cannot but regret that those who are connected with the legal profession in India should have so completely disregarded those injunctions that their Lordships have so often laid down. It is a grievous thing to think of the distress and the anxiety which must be caused to the relations and friends of the condemned man by holding out to them vain and elusive hopes that the penalty which has been inflicted can be mitigated or reversed by this Board, except in the special circumstances to which I have referred.
13. That passage means this, that the Judicial Committee of the Privy Council will not intervene in the criminal administration of this country unless it can be shown that there is some violation of the principles of justice or some disregard of legal principles. Mr. Mitter has quite frankly conceded that that and that alone is the test by which we have to guide ourselves in the present instance. We have to ask ourselves - is there in this case to be found any indication that there has been any violation of the principles of justice or any disregard of legal principles? Mr. Mitter, for the purpose of this application, has relied upon two matters which are set out in Sub-paras. (3) and (9) of para. 10 of the petition by means of which this application was put before the Court. The whole of para. 10 deals with the grounds upon which the petitioner says that he is desirous of appealing to His Majesty in Council. Sub-para. (3) is as follows:
For that in the present case the substantial question for the jury was whether they should believe the Durwan who stated that he had seen the accused going upstairs with the deceased or should believe accounts of his movements given by the accused. The learned Judge took the decision of this most important point out of the hands of the jury by directing them positively and without any qualification.
14. Then follows a quotation from the learn, ed Judge's summing up in these words:
Together with these facts you will consider the fact that the accused has given no true account of what he did in the interval.
15. Then the sub-paragraph proceeds:
On the other hand in the absence of evidence to show that the account of accused's movements was false the learned Judge ought clearly to have indicated to the jury that it was to be accepted unless they believed that the evidence of the Durwan as to his seeing accused was proved judicially and beyond any doubt.
16. Sub-para. (9) - and this Mr. Mitter put in the forefront of his argument - runs as follows: 'For that the following direction of the learned Judge amounts to a serious misdirection.' Then follows a quotation from the Judge's summing up:
Now gentlemen of the Jury, before you disbelieve a witness you must have good grounds for disbelieving him. A person comes before you and gives his oath. He is entitled prima facie to be believed.
17. Those quotations from the summing up of the learned Judge are only two out of a number of others which have been set forth in the petition, but which Mr. Mitter has not thought fit to bring to our attention beyond of course inviting us to read the whole petition which we have in fact done. Now before one can arrive at any opinion as to whether any particular passage in the summing up amounts to a misdirection or not, one must look at and consider the summing up in its entirety. On this point I need only refer to the case in 41 Cal 1023,3 where at p. 1062 Lord Shaw in the course of delivering the judgment of the Privy Council said:
A charge to a jury must be read as a whole. If there are salient propositions of law in it, these will, of course be the subject of separate analysis. But in a protracted narrative of fact, the determination of which 19 ultimately left to the jury, it must needs be that the view of the Judge may not coincide with the views of others who look upon the whole proceedings in black type. It would however not be in accordance either with usual or with good practice to treat such cases as cases of misdirection, if upon the general view taken the case has been fairly left within the jury's province.
18. It is interesting to note that in the same judgment Lord Shaw also said that in the region of fact the Privy Council will not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. There are, as I have said, a large number of authorities on this particular point. They all amount to this that in considering whether a Judge has misdirected the jury, the tenor land general effect of the whole summing up 'should be looked at and if, upon the whole summing up, the Court is of opinion that substantially the proper direction has been given to the jury, it will not interfere, though the Judge has omitted to direct the jury expressly on some important point. Mr. Mitter, as I have stated, dealt first with the second of the two citations from the summing up of the learned Judge in the present case, namely that one which is under heading No. (9). The actual passage quoted is a very small part of what the learned Judge actually said as the context of this particular quotation. The statement now impugned occurs in the following passage:
Now, gentlemen of the jury, before you disbelieve a witness you must have good grounds for disbelieving him. A person comes before you and gives his oath. He is entitled prima facie to be believed. You must not take the view that persons come here to give false evidence. You should not act on that presumption. If you do, you will fall into an error. Don't start with any presumption whatsoever. Just tell yourselves this. Here is a man who has come here and sworn and he has given evidence. Before I disbelieve him I want to find grounds for disbelieving him. If there are reasonable grounds for disbelieving him by all means do so. It is not a normal course of conduct for a man to come and perjure himself in Court in order to get another fellow human being sent to jail or get him hanged. People are not anxious to commit crimes of this nature and I can hardly conceive of a worse crime than that of a person coming to Court and perjuring himself in a case of murder against a fellow human. Bear this in mind gentlemen before you disbelieve a witness.
19. Mr. Mitter has invited us to take the view that the learned Judge was definitely and categorically telling the jury without any qualification that they ought to act upon the presumption that a person who goes into the witness box is necessarily telling the truth. We are unable to agree with that contention and indeed it seems quite clear to us that the learned Judge said nothing of the kind. Mr. Mitter in support of his argument referred us to the case in Emperor v. Tazem Ali : AIR1931Cal796 , the headnote of which says:
A jury cannot be required to make the presumption against an accused person that the particular statements of a particular witness are true; still less can it be required to make such a presumption as regards the prosecution witnesses as a body or the prosecution evidence as a whole. The jury should be told that it is their duty to consider carefully and to say whether they are convinced by the prosecution evidence and that if they are not convinced there is no law which obliges them to convict.
20. When we come to look at the judgment of the late Chief Justice of this Court, Sir George Rankin, however, we find that he says (at page 1098):
It would hardly be worth while to enquire, at any length, into the principles and practice of English criminal law at the time of the dicta cited by Best. (He is referring to a passage from 'Best on Evidence' which appears on the preceding page of the judgment.) Indeed the matter is both too important and too simple to be left to ancient dicta. Unless there were some probability that, by the evidence of witnesses, the truth could be arrived at, no doubt some other system of trial would have to be devised. If all you know is that A gave evidence on oath in a Court of law and everything else is left for presumption, the presumption will be that he gave his evidence truthfully.
21. That seems to me to mean that if a wit. ness goes into the witness box and testifies on oath, the jury, unless there is something else to operate on their minds, may draw an inference not as a matter of law, but rather as a matter of fact that he is prima facie likely to be speaking the truth, particularly in capital cases. The learned Chief Justice went on to say:
But the moment you know something of the circumstances, something of his statement, of his demeanour, of his interest in the case, of the other evidence, this presumption has been overlaid with other much more strong presumptions and with other elements of probability.
22. That seems to me to be eminently reason, able, and if I may say so with all respect to the learned Chief Justice, a commonsense and accurate statement of the position. But I scarcely think that we need consider that decision of Sir George Rankin at all in connexion with the present case, because in my view when one looks to the passage in the summing up of the learned Judge which I have quoted at length, it would appear that he did not even tell the jury that they ought to act upon a presumption that a witness on oath is necessarily speaking the truth. On the contrary he gave them an explicit and emphatic warning in these words: 'Don't start with any presumption whatsoever.' Then he went on to say: 'Before you disbelieve a witness you must have good grounds for disbelieving him....If there are reasonable grounds for disbelieving him by all means do so.' We are quite clearly and definitely of opinion that as regards the passage complained of in para. 10, Sub-para. (9), there is no force whatever in Mr. Mitter's contention. The jury could not possibly have been led astray by the observations of the learned Judge now impugned. The other matter is that stated in Sub-para. (3). That passage when read with the context is extended to this:
Gentlemen, now you will bear all these facts in mind and then come back again to the question whether you believe the durwan when he says that he saw Plucknett going into the flat with Jones. All these circumstances must be looked at together. If you believe the durwan that he saw Plucknett going into the room and if you believe Sergeant Stanley that Plucknett was seen the next morning dressed in this fashion, certainly the case against Plucknett takes on a very serious aspect. Together with these facts you will consider the fact that the accused has given no true account of what he did in the interval.
23. Now, if one picks out of its context in the way that has been done in the petition and takes just the one sentence, the last sentence in that paragragh, that sentence may at first sight create the impression that the learned Judge was either stating definitely that the accused had given no true account of his movements, or else that the learned Judge was saying that his own view was that the account given was not true. The precise meaning of a sentence of this kind depends a great deal on the manner in which it is spoken and upon the emphasis given to any particular part of it. The sentence when spoken may have borne quite a different meaning and made an entirely different impression upon the minds of the jury from what Mr. Mitter asks us, reading it in bold type, to assign to it. It is however not right or fair to judge by one single sentence but one must not only consider the whole of the passage in which the sentence occurs, but also consider the antecedent passages and the subsequent passages in the summing up. There is to my mind no doubt whatever that when one examines the summing up as a whole, that the jury could have been under no misapprehension as to what was being up before them. The observations of the learned Judge concerning this particular matter, when looked at in the light of what precedes this particular paragraph, amount in my opinion, to no more than this: that the jury were being invited or possibly directed to take into account the question as to whether they could or could not accept the accused's own account of him movements and actions on the evening of the occurrence and the succeeding morning. Moreover, even supposing it were possible or even necessary to hold the particular passage now criticized when taken by itself and isolated from its setting amounted to a misdirection, in our opinion it could in no degree have influenced the minds of the jury in a manner adverse to the interests of the accused. I have perused the whole of the record in this case and I have considered the summing up of the learned Judge, and looking at the matter in its entirety one can only come to the conclusion that not only are there no special or exceptional circumstances in this case note only is there in connexion with it no violation of the principles of justice or of legal principles, but no other conclusion can be arrived at as regards the summing up taken as a whole than that there has been no miscarriage of justice at all.
24. There is one other observation that I would make before parting with this case and it is this. On the last occasion when this matter came before this Court, the learned Chief Justice in the course of the judgment, which he then gave dismissing the previous application made an observation to the effect that that particular application (the one made under the provisions of Ch. 33, Criminal P.C.) seemed to be in the nature of a last despairing effort made on behalf of the condemned man to bring the matter before the Court. It appears however that that other application was not the last effort despairing or otherwise, because we now have this further application. I would like those who are responsible for the making of this application to bear in mind those arresting observations of the Privy Council - so apposite in a matter of this kind - which find place in the admonition of Lord Buckmaster in Taba Singh v. Emperor which I have already quoted. We are clearly and emphatically of opinion that there are no circumstances whatever in connexion with this case which enable us to declare that it is a fit one for an appeal to His Magesty in Council. This application must therefore be refused.
Nasim Ali, J.
25. I entirely agree with the order which has been made by my learned brother in this case. I am not at all satisfied that the misdirections complained of in the present case are material or that they have led to any miscarriage of justice.