A W MEARS Vs. EMPEROR

JUDGEMENT

(1.) The appellant in this case, A.W. Mears, was in April, 1943, a Captain holding the temporary rank of Major in the Royal Engineers, and was attached to No. 1 Works Service (E. & M.) Group I. E. In October, 1943, he was charged with four offences under the Army Act. The charges, without the particulars which are not material to this judgment, were as follows: 1 Charge, A.A. Section 17.- When on active service, when concerned in the care of public property, fraudulently misapplying the same. 2nd Charge, A.A. Section 40.- alternative to 1 charge.- When on active service, neglected to the prejudice of good order and military discipline. 3 Charge, A.A. Section 17.- When on active service, when concerned in the care of regimental property, fraudulently misapplying the same. 4 Charge, A.A. Section 40.- alternative to 3 charge.- When on active service neglected to the prejudice of good order and military discipline. The appellant was ordered to be tried by a Field General Court Martial. He was in due course so tried and was convicted in respect of the two offences charged under Section 17 of the Army Act, and was sentenced to two years imprisonment and to be cashiered.

(2.) The appellant thereupon filed a petition in the High Court at Lahore under Section 491 of the Criminal Procedure Code. The important point raised on the hearing of that petition before the High Court was that the act complained of was committed by the appellant in the execution or purported execution of his duty as a servant of the Crown in India and that accordingly under Section 270(1) of the Government of India Act, 1935, the Court Martial proceedings could not legally and properly be instituted against him without the previous consent of the Governor General in his discretion.

(3.) Section 270(1) runs as follows: No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connection with the affairs of the Government of India or the affairs of Burma, of the Governor-General in his discretion, and in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province in his discretion.