BARENDRA KUMAR GHOSE Vs. KING-EMPEROR

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council under Clause 41 of the Letters Patent, which is in the following terms:

(2.) The petitioner Barendra Kumar Ghose was placed on his trial at the last Sessions, before Mr. Justice Page and a special jury on charges under Sections 302 and 394, Indian Penal Code. The jury returned a unanimous verdict of guilty on the charge of murder, and Mr. Justice Page thereupon sentenced the prisoner to death. A certificate was then obtained on his behalf from the Advocate-General, under Clause 26 of the Letters Patent, that, in his judgment, whether an alleged direction and an alleged omission to direct the jury did not in law amount to a misdirection should be further considered by the High Court. The question was accordingly argued before a Pull Bench. On the 26th September, 1923, the Full Bench delivered judgment and ordered that the application made by the prisoner under Clause 26 do stand dismissed. The present application was made on the 3rd October, 1923, for a certificate under Clause 41 that the case is a fit one for appeal to His Majesty in Council. The matter has been exhaustively argued before us, on behalf, as well of the prisoner, as of the Crown, and our attention has been invited to the relevent authorities on the subject.

(3.) It is indisputable that as His Majesty the King is supreme over all persons and Courts within his Dominions, a right of appeal in all oases, civil and criminal, to the King in Council, exists, from the highest Court of each separate colony, province, state or possession, whether it be a Court of record or not, except so far as the prerogative in this behalf has been expressly surrendered; Cushing v. Dupuy [1880] 5 A.C. 409, Re Wi Matua s Will [1908] A.C. 443. Criminal proceedings, however, are, in practice, reviewed, only if it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. The Judicial Committee do not, as a rule, advise His Majesty to grant appeals in criminal cases, except where questions of great and general importance, likely to occur often, are raised, and where the due and orderly administration of the law is shown to be interrupted, or diverted into a new course, which might create a precedent for the future, and where there are no other means of preventing these consequences. Such appeals lie either by the right of grant, in pursuance of leave obtained by the appellant from the Court appealed from, or by reason of special leave granted by the Judicial Committee. The latter appeals arise, either where the Court below does not possess power to grant leave to appeal, or where leave to appeal has been refused by the Court below, or where the leave to appeal was granted on some special point and the appellant wishes to raise points not included in the leave to appeal : R. v. Louw [1904] A.C. 412; Daily Telegraph Co. v. McLaughlin [1904] A.C. 776; Victorian Railway Commissioners v. Brown [1906] A.C. 381; Albright v. Hydro-Electric Power Commission [1923] A.C. 167. But whether leave is granted by the Court appealed from or by the Judicial Committee, it is plain that the answer to the question, whether the case is a fit one for appeal, must depend on the same considerations; the grant of the leave to appeal is a step ancillary to the determination of the appeal, and the principles which regulate the ultimate decision of the appeal cannot obviously be ignored when an application for leave is examined : Ibrahim v. R. [1914] A.C. 599.