EMPEROR Vs. ALBERT BARNEY

JUDGEMENT

(1.) The petitioner, Private Barney of the Lincolnshire Regiment, stationed at Dinapore, has been committed to this Court for trial on a charge of culpable homicide not amounting to murder. The trial has been fixed for 16 October. The petitioner now prays that sufficient European jurors may be summoned for the trial to ensure that he shall be tried by a majority of such jurors.

(2.) The petition is opposed by the Advocate-General on the ground that the petitioner failed to apply that he should be tried under the provisions of Chap. 33, Criminal P.C., prior to the making of the commitment order. Section 443, which is the first of the sections composing Chap. 33 of the Code, provides that where, in the course of the trial of any offence punishable with imprisonment, the accused person, at any time before he is committed for trial under Section 213, claims that the case ought to be tried under the provisions of this chapter, the Magistrate inquiring into or trying the case, after making such inquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce, evidence in support of his claim, shall, if he is satisfied that the case is one to which provisions of that chapter apply, record a finding that the case is one which ought to be tried under the provisions of this chapter or if he is not so satisfied, record a finding that it is not such a case.

(3.) The contention on behalf of the Crown is that an accused person is not entitled to the benefit of the provisions of chap. 33, in a case to be tried by jury in this Court unless he has made an application under Section 113, before the commitment order is made. Reference was also made to the provisions of Section 275 of the Code. The material provisions of that section are that in a trial by jury before the High Court, of a person who has been found under the provisions of this Code to be a European or Indian British subject a majority of the jury shall, if such person before the first juror is called and accepted so requires, consist, in the case of a European subject, of persons who are Europeans or Americans and, in the case of an Indian British subject of Indians.