DIWAN SINGH Vs. MOHAMMAD AHRAM

JUDGEMENT

(1.) IN the course of a criminal trial pending in the Court of the Magistrate, First Class, Hoshangabad, initiated on a complaint made by Khwaja Muhammad Akram, Chief of the Bhopal State Police, duly authorized by the Governor-General-in-Council, under Section 5, Indian States Protection against Disaffection Act 1892, for an offence punishable under Section 3 of that Act. Dewan Singh accused made an application desiring determination of a question whether or not His Highness the Nawab of Bhopal could be examined on commission as a witness in the case. The question was answered in the negative by the trial Magistrate and his view was affirmed by the Sessions Judge, Hoshangabad, in Criminal Revision No. 49 of 1932. De-wan Singh has moved this Court in revision.

(2.) THE only question for determination is whether a criminal Court in British India has jurisdiction to issue a commission to an officer representing a British Indian Government resident in the territory of an Indian State for the purpose of examining the Ruling Prince of that State. It is urged on behalf of the applicant that under Sub-section 2, Section 503 a criminal Court in British India is empowered to examine on commission any witness who resides in the territories of any Prince or Chief in India and that in exercise of this power the Court could lawfully issue a commission for the examination of a Ruling Prince. In other words the expression "the witness resides in the territories of any Prince or Chief in India" occurring in Sub-section 2, Section 503 is (as contended) wide enough to include the Ruling Prince or Chief of any State. It appears to me that this contention is not sound. The witness contemplated in Section 2 is one, who if resident in British India, although not a British but a State subject could have been summoned to appear in the British Court for being examined as a witness.

(3.) THEIR Lordships further observed that the authority to execute any criminal process must be derived in some way or another from the Sovereign of that territory, where the person to be proceeded against resides as a subject of the State. The Criminal Procedure Code extends only to British India, which means all territories within His Majesty's Dominions which are for the time being governed by His Majesty through the Governor-General of India or through any officer subordinate to the Governor-General of India. The Code was held not to apply to the Indian States in Queen-Empress v. Abdul Latib (1886) 10 Bom 186, Emperor v. Chimanlal (1912) 37 Bom 152, Empress v. Keshub Mahajan (1882) 8 Cal 985, In the matter of Bichitranund Dass v. Bhugbut Perai (1889) 16 Cal 667 and Muhammad Yusufuddin v. Queen-Empress (1897) 25 Cal 20. In fact Section 65, Government of India Act, which defines the powers of the Indian legislature, shows that it has no power to make any laws affecting the subjects of the Indian States. It is only when the subjects of the Indian States are found to reside in British India that they become amenable to the laws in force in British India. Therefore a witness who can be examined on commission under Sub-section 2, Section 503 must be one of the persons of this class and cannot include the Ruling Princes or the Chiefs. The test is whether the British Courts have the authority to issue a process against any foreign Prince, even when he chooses to reside within British Dominions and the jurisdiction of the Court. If no such process can be issued then obviously he cannot be examined on commission under Section 503(2), Criminal P. C.