4th Feby. 1907.

Application under Section 215, Criminal Procedure Code, to quash the commitment of the respondent to the Court of Session at Quetta.

Government Advocate, for petitioner.

The judgment of the Court was delivered by

CLARK, C. J.-One Arthur Mercer, a European British subject, was committed by Mr. Anscomb, Extra Assistant Commissioner, Quetta, Magistrate, let class, and Justice of the Peace, to the Court of Sessions, Quetta, on a charge under Section 324, Indian Penal Code.

The Local Government, Belochistan, represented to this Court that the Court of Sessions in Belochistan bad no jurisdiction to try European British subjects, and the Government Advocate has applied to have the committal of Mercer to the Court of Sessions quashed and to have him committed for trial to this Court.

The question which we have to determine is whether the Courts of Session in Belochistan have jurisdiction to try European British subjects.

Under Section 3 of Regulation VIII of 1896 the Code of Criminal Procedure is extended to British Belochistan subject to the modification set forth in the schedule attached to the Regulation.

Section 3 (1) of that Schedule provides that-" Each "District shall be a Sessions Division, the Court of the District ,, Magistrate shall be the Court of Session for that Division, "and the District Magistrate shall be the Judge of that "Court."

Courts of Session are by this Regulation appointed for Belochistan, and no distinction is made between their powers over Eurpean British subjects and their powers over natives of Belochistan.

The powers of Sessions Courts over European British subjects are given in Sections 444-447-449, Criminal Procedure Code, and we can see no reason for holding that those powers are not vested in the Belochistan Courts of Sessions in virtue of the above-noted enactment.

Section 21 of the Schedule no doubt provides that "nothing in the Schedule with respect to procedure, in

inquiries or trials or with respect to sentences or appeals "therefrom, or the enhancement or execution thereof, sball be "construed to affect the code in its application to European "British subjects."

This does not touch the jurisdiction of the Sessions Courts, that is conferred by Section 3 of the Regulation.

The creation of Courts of Session cannot be considered to be something in "this Schedule with respect to procedure "in inquiries, etc." and the powers given to Courts of Sessions by the Code of Criminal Procedure are not taken away by this section.

Procedure in inquiries may possibly include the provision of Section 3 (2) (3) of the Schedule and bar the Court of Sessions from hearing cases of European British subjects that have not been committed to them, or trying them without a jury.

Restrictions on appeal and enhancement of punishment on appeal are specially provided for in Sections 14 and 15 of the Schedule and these provisions are barred by Section 21 from being applied to European British subjects.

We are therefore of opinion that the Courts of Sessions in Belochistan have jurisdiction to try European British subjects, committed to them by competent Courts.

We wish to notice some of the arguments used against this view.

The fact that no Courts of Sessions have been appointed by the Local Government under Section 9 of the Criminal Procedure Code is not material; these Courts have been appointed by the authority superior to the Local Government, namely, the Governor-General in Council by the Regulation. It would be meaningless and irrelevant for the Local Government to proceed to make such appointment after it had been done by the authority to which the Local Government is subordinate.

It is the Governor-General in Council who has appointed the Justices of the Peace, they have not been appointed by the Local Government under the Criminal Procedure Code, and it would be as forcible to argue that they had no powers over European B.itish subjects because not appointed under the Criminal Procedure Code, as that Courts of Session had no such Fowers, because they were not appointed under the Criminal Procedure Code.

Another contention against our view is that under Section 6 of the Foreign Jurisdiction and Extradition Act, 1879, and the notifications thereunder, Justices of the Peace were directed to commit European British subjects to the Chief Court.

In Notification No. 813 E, dated 19th April 1890, Gazette of India for 1890, page 247, Political Agents in Belochistan were appointed Justices of the Peace with directions that the Chief Court was the Court to which they were to commit.

This order was confirmed by Notification No. 3706 F. B. of October 1903, Gazette of India for 1903, page 917. However, Notification No. 1799, dated 9th September 1891, Gazette of India 1891, page 537, appointed the Assistant Political Agent, Quetta, and the Extra Assistant Commissioner, Quetta, to be Justices of the Peace, and no direction was given as to the Court to which they should commit.

Though the Foreign Jurisdiction Act was repealed by Act X of 1903, all the powers which had been conferred under that Act were confirmed by the order of His Majesty the King in Council, No. 3917 I. A., dated 13th June 1902, published in Gazette of India for 1902, page 667.

There being no direction in the Notification of 1891 as to the Court to which the Assistant Political Agent, Quetta, and the Extra Assistant Commissioner, Quetta, shall commit European British subjects, they will commit in the way provided by the Criminal Procedure Code, that is, to the Court of Sessions.

The result is that Political Agents and the Cantonment Magistrate Quetta (the latter under Notification No. 814 E, dated 19th April 1890, Gazette of India, 1890, page 248) commit to the Chief Court while the Extra Assistant Commissioner and Assistant Political Agent, Quetta, commit to the Sessions Court.

This may be anomalous and it may not have been the intention of the authorities, but this is what we understand to be the law on the subject, and as a commitment can only be quashed on a point of law (Section 215, Criminal Procedure Code) we are unable to quash the conmitment.

Any deficiencies that there may be in Belochistan as regards the existence of a jury list, and as to a direction under

1

Section 274, Criminal Procedure Code, as to the number of the jary can be provided now.

We therefore refuse to quash the commitment of the accused who should be tried by the Court of Session to which he has been committed.

No. 6.

Before Mr. Justice Chatterji, C.I.E.

RADHA SINGH AND ANOTHER,-PETITIONERS,

Versus

KING-EMPEROR OF INDIA,-RESPONDENT.

Criminal Revision No. 1310 of 1906

Security for keeping the peace on conviction-Appellate Court not competent to demand where Magistrate not empowered by law-Criminal Procedure Code, 1898, Sections 106, 530,

Held, that a court of appeal cannot pass an order und er Section 106 of the Code of Criminal Procedure when the Magistrate who passed the original order convicting the accused was not empowered by law to do

80.

Muthiah Chetti v. Emperor (1) followed.

Case reported by Major G. C. Beadon, Sessions Judge, Hoshiarpur
Division, on 6th October 1906.

The facts of this case are as follows:

The accused were charged with assaulting complainant in connection with a dispute in respect of sha milat land. They denied the offence, but it was established by the evidence of reliable witnesses.

The accused, on conviction by Munshi Ali Bakhsh, Tahsildar, exercising the powers of a Magistrate of the 3rd class in the Hoshiarpur District, were sentenced, by order, dated 30th June 1906, under Section 852 of the Indian Penal Code, to a fine of Rs. 10 each, and the District Magistrate of Hoshiarpur upheld their conviction on appeal under Section 352, Indian Penal Code, though by clerical error Section 323 was referred to, and in dismissing the appeal on 13th August 1906, ordered them each to furnish security under Section 106, Criminal Procedure Code, to keep the peace.

The proceedings were forwarded for revision on the following grounds :

An assault is a breach of the peace and though a Magistrate of the 3rd class cannot pass an order under Section 106, Criminal Procedure Code,

(1) I. L. R., XXIX Mad., 190.

REVISION SIDE.

8th Decr. 1906.

there are no express words in Section 106, Criminal Procedure Code, which restrict the powers of an Appellate Court under Section 106, Criminal Procedure Code, to appeals from Criminal Courts other than the Courts of Magistrates of the 2nd and 3rd class.

Muthiah Chetti v. Emperor (1), however, is an authority for the contention that the powers of an Appellate Court are restricted, and that in the present case the District Magistrate had no power to pass an order under Section 106, Criminal Procedure Code.

Under these circumstances it seems necessary that the case should come before the Chief Court for orders on the Revision Side, and I accordingly report the case for orders of the Chief Court.

The judgment of the Chief Court was delivered by

CHATTERJI, J.-I am of opinion that the construction put on the section by the Madras High Court in Muthiah Chetti v. Emperor (1), that the Court of appeal carnot pass an order under Section 106, Criminal Procedure, when the Magistrate who passed the original order convicting the accused was incompetent to do so is correct. The Magistrate bere was one with third class powers and he could not pass an order on conviction requiring security from the accused to keep the peace in future. It follows that the District Magistrate's order is without jurisdiction.

I accept the application so far as to cancel the order for security.

REVISION SIDE,

Appeal allowed.

No. 7.

Before Mr. Justice Rattigan.

ABDULLA KHAN AND OTHERS,-PETITIONERS,

Versus

GUNDA AND OTHERS,-RESPONDENTS.

Criminal Revision No. 495 of 1906.

Possession-Order of Criminal Court as to-Non-observance of procedure -Illegality-Criminal Procedure Code, 1898, Section 145.

Proceedings under Section 145 of the Code of Criminal Procedure are without jurisdiction unless the procedure prescribed therefor is strictly adhered to. Where therefore the copy of the initiatory order was neither served on the parties nor affixed at or near the subject of dispute and all the parties interested were not heard or evidence taken: held, that the proceedings must be set aside.

(1) I. L. R., XXIX Mad., 190.