EMPEROR Vs. HARENDRA CHANDRA CHAKRAVARTHY

JUDGEMENT

(1.) In the present trial, before the first juror was called, Mr. H. M. Bose, appearing on behalf of the prisoner, claimed that a majority of the jury should be Indians on the ground that the prisoner is an Indian British subject, and based his claim upon the mandatory provisions of Section 275 of the Cods of Criminal Procedure. Mr. A. K. Basu, appearing on behalf of the Crown, opposed the application on the ground that the claim was not entertainable in view of the fact that it was not put forward before the committing Magistrate. A similar application made on behalf of the prisoner, at the commencement of the trial which has just now proved abortive, was refused by me; but, as on that occasion I did not give my reasons for the order that I then passed, I have allowed the prisoner to raise the point again, and have considered the matter further; but I do not find any reason to alter the opinion which I then formed.

(2.) At the outset I may say at once that I quite agree with the contention put forward by Mr. H. M. Bose that the High Court exercising Original Criminal Jurisdiction is not a Court of Session within the moaning of the Criminal P. C.. Under Section 6 of the Criminal Procedure Code, Courts of Session belong to a class of Courts different from the High Courts. Under Section 9 the Local Government has powers to establish a Court of Session for every sessions division as defined in Section 7, Sub-section (1), and under Sub-section (2) of Section 9 the Local Government may, by general or special order in the Official Gazette, direct at what place or places the Court of Session so established shall hold its sittings. The expression Court of Session," wherever it is used in the Criminal P. C., means a Court established as aforesaid. " High Court" has been defined in the Code of Criminal Procedure, Section 4(1), as meaning, in reference to proceedings against European British subjects, or persons jointly charged with European British subjects, the High Courts of Judicature at Fort William Madras, Bombay, Allahabad, Patna, Lahore and Rangoon, and the Courts of the Judicial Commissioners of the Central Provinces, Oudh and Sind, and, in other casts, as meaning the highest Court of Criminal Appeal or Revision in any local area, or, where no such Court is established under any law for the time being in force, such officer as the Governor-General in Council may appoint in that behalf. In Section 266 of the Criminal Procedure Code it is provided that the expression " High Court" in Chapter XVIII and in Chapter XXIII of the Code, except in Secs.276 and 307, means a High Court of Judicature established under the Indian High Courts Act, 1861, or the Government of India Act, 1915, and includes the Courts of the Judicial Commissioners of the Central Provinces, Oudh and Sind and the Chief Court of Lower Burma and such other Courts as the Governor-General in Council may, by notification in the Gazette of India, declare to be High Courts for the purposes of the said two Chapters.

(3.) Where, in the Criminal P. C., the expression " High Court" is used it bears the one or the other of the aforesaid meanings. The Original Criminal Jurisdiction which the High Court of Judicature at Fort William in Bengal; established under the Indian High Courts Act, 1861, exercises, it does by virtue of Clause 22 of the Letters Patent of December 28, 1865. Section 267 of the Criminal Procedure Code provides that all trials under Chapter XXIII of the Code before a High Court shall be by a jury, and it further provides that, notwithstanding anything contained in the said Code, in all criminal cases transferred to a High Court under the Criminal Procedure Code, or under the Letters Patent of any High Court established under the Indian High Courts Act, 1861, or the Government of India Act, 1915, the trial may, if the High Court so directs, be by jury. The time and place of holding sittings of the High Court for the exercise of its Original Criminal Jurisdiction are regulated according to the provisions of Secs.334 and 335 of the Criminal Procedure Code.