H G BOLTON Vs. EMPEROR

JUDGEMENT

(1.) A preliminary point of jurisdiction is raised by the Crown in showing cause against the rule. The petitioner states that he is a European British subject. His statement is verified by an affidavit sworn by his brother, and Mr. Bhattacharjee agrees that in the absence of any evidence to contradict it, it must be taken to be correct. He was convicted at Port Blair on 2nd May 1932 by a First Class Magistrate of offences punishable under Secs.408 and 468, I.P.C., and sentenced to undergo rigorous imprisonment for a term of eight months. On 6th May 1932 the learned Sessions Judge of the Andaman and Nicobar Islands allowed the petitioner's appeal against his conviction under Section 468 and acquitted him on that charge, but dismissed his appeal against his conviction under Section 408 and maintained the sentence. On 12 July 1932 the petitioner obtained this rule calling upon the Chief Commissioner of the Andaman and Nicobar Islands to show cause why the order of the Sessions Court should not be set aside or modified, on the ground that the sentence is too severe. Learned counsel for the Crown argues that we have no jurisdiction to entertain the petitioner's application.

(2.) By Section 13, Clause (d) of the Andaman and Nicobar Islands Regulation,1876, (Regulation 3 of 1876) it was ordered that the functions of the High Court under Ch. 32, Criminal P.C., of reference and revision should be discharged in respect of proceedings of the Court of Session by the Governor-General in Council, and in respect of Courts subordinate to the Court of Session by the Court of Session, but this clause does not apply to proceedings against European British subjects or persons jointly charged with European British subjects. By a notification made in 1878 under Section 3, Indian High Courts Act, 1865(28 and 29 Vic. C. 15) it was ordered that this Court should exercise original and appellate jurisdiction and discharge the functions of a High Court in criminal proceedings in the Islands against European British subjects. Prima facie we have clearly the power to deal with the petitioner's case by way of revision. Mr. Bhattacharjee however maintains that, inasmuch as the petitioner did not claim to be dealt with as a European British subject by the Magistrate before whom he was tried, he must by reason of the provisions of Section 528-B, Criminal P.C., be held to have relinquished that right, and cannot assert it before us exercising revisional jurisdiction, which is "a subsequent stage of the case" within the meaning of the section.

(3.) Mr. Basu argues that what the section means is that, unless the claim has been made, a European British subject cannot at a subsequent stage challenge the legality of a previous stage at which the claim might have been made on the ground that he was not at such previous stage dealt with as a European British subject. There is nothing, it is contended, to prevent a European British subject making the claim at any stage of the case and being dealt with as such from that stage.