EMPEROR Vs. BHAIJI MANOR

JUDGEMENT

(1.) The facts giving rise to this reference are as follows. Four accused persons have been committed to the Court of the Sessions Judge of Kaira by the Resident First Class Magistrate of Borsad for trial under Section 302, Indian Penal Code. The offence is alleged to have been committed within the limits of a village in the territory of the Baroda State. Therefore, a certificate from the Political Agent was necessary under Section 188 of the Criminal Procedure Code before an inquiry into the charge could be made in British India. What purported to be a certificate under Section 188 was produced in the proceeding before the Magistrate and was in this form :- Dated Baroda, April 22, 1933. Whereas the persons named in the margin are charged with having committed 1. Rama Manor. 2. Bhaiji Manor an offence punishable under Section 302 of 3. Asha Rama. 4. Natha Mathur [the Indian Penal Code at Baroda under All of Vadeli under Borsad. Bhadran of the Baroda State in the mon January, 1933, I hereby certify in accordance with the provisions of Section 188 of the Criminal Procedure Code, 1898, (Act V of 1898), that the said charge should be inquired into in British India. (Sd) C.W.L. HARVEY. For the Agent to the Governor General for the Gujrat States and Resident at Baroda."

(2.) The document bears the Resident's seal.

(3.) The learned Sessions Judge, being of opinion that this was not a sufficient certificate to meet the requirements of Section 188, and that it is necessary that there should be a certificate signed by the Political Agent himself, has referred the matter to this Court with a recommendation that the order of commitment should be quashed and that a fresh inquiry should be directed after the necessary certificate signed by the Agent to the Governor-General himself has been obtained. We may say that we agree so far with the learned Sessions Judge that the form of the certificate does not appear to be altogether appropriate. Section 188 requires that the Political Agent should certify that in his opinion the charge ought to be inquired into in British India. It is the Political Agent who must certify and not some one else for him. On the other hand, as was pointed out in , a case in which precisely the same point arose, the section does not mention the word "certificate" at all and there is no direction for the signing of a certificate by any particular person. If the certificate were to be in this form: "The Political Agent (or the Agent to the Governor-General, as the case may be) hereby certifies that the charge ought to be inquired into in British India," and the certificate were signed "By order" by some officer whose designation was stated, we are of opinion that it might be accepted as sufficient evidence of the fact that the Political Agent had certified as required by Section 188. This particular certificate, however, does not purport to say that the Political Agent certifies anything. It merely says that the officer who has signed the document certifies what is necessary and that he does so for the Agent to the Governor-General. There is nothing in the Code, or so far as we are aware, in any other law in force which would authorize the First Assistant Resident or any other officer under the Political Agent to give the required certificate for the Political Agent.