EMPEROR Vs. JOHN MCIVER

JUDGEMENT

(1.) Two points of law arising in the trial of John McIver for criminal breach of trust at the last criminal Sessions have been reserved to us for decision under Clause 25 of the Letters Patent by the learned Chief Justice. They are (1) whether the plea of autrefois acquit was good in law, and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. By "case put forward by the Crown," the learned Chief Justice has stated that he means the case alleged in the complaint. The learned Crown Prosecutor has taken an objection to our jurisdiction to entertain the reference. His objection proceeds as follows: The High Court derives its jurisdiction to decide the question of law referred from the order of reference; the referring Judge is only competent to refer questions which he can decide; and the Judge is only competent to decide such questions as are available for his decision. Applying these propositions to the points reserved, the learned Crown Prosecutor has contended (1) that the question whether the plea of autrefois acquit was available to the accused could not be referred by the trial Judge because the point had already been decided by the High Court against the accused in the proceedings previous to the trial; (2) that the trial Judge has not referred the question of availability of the plea, but only the question whether it is good in law; (3) that the question of autrefois acquit could not be referred because it did not arise in the trial or in the course of the trial (according to Clause 25, or Section 434, Criminal P.C.) but was taken before the commencement of the trial; and (4) that the second point of law referred could not be referred because it had already been the subject of decision by a Bench of this High Court at an earlier stage of the proceedings against the accused. With regard to the second of these grounds of objection I may say at once that I have no doubt upon the terms of the order of reference that the learned Chief Justice intended to refer not only the question of the availability of the plea to the accused but the question of its merits. As the points taken by the learned Crown Prosecutor relate to various stages of the proceedings in the prosecution of the accused it will be convenient here to state the sequence of events in these proceedings.

(2.) The complaint alleged that the accused had committed the offences of cheating and criminal breach of trust. Summonses were issued by the Chief Presidency Magistrate in respect of both offences. But when the parties appeared it was stated that the complainant wished to compound the offence as the only offence was one of cheating under Section 420, I.P.C. This was sanctioned by the Magistrate, and an order made acquitting the accused 1. Cheating being a compoundable offence the effect of the Magistrate's order sanctioning the composition was the acquittal of the accused of that offence; Section 345(6), Criminal P.C. The result was as if the Court had found the accused not guilty of the offence compounded. The Crown appealed against the acquittal alleging in the first place-that the acquittal of cheating was bad as the Magistrate was not shown to have exercised a discretion in allowing the composition: and secondly, that as the complaint disclosed the offence of criminal breach of trust and a summons had been issued in respect of that offence, which was a non- compoundable offence, the Magistrate must be deemed to have sanctioned the composition of this offence likewise in acquitting the accused. The appellate Court upheld the acquittal of cheating but directed the Magistrate to restore the summons in respect of the alleged breach of trust to his file and to dispose of it according to law. The judgment of the appellate Court is reported in Emperor V/s. J. Mclver 1936 69 MLJ 681. No question of the acquittal of cheating being a bar to trial for criminal breach of trust appears to have been raised in the arguments of counsel, and no opinion or decision upon that question was given in the judgment. In my view the Court did not, and never intended to fetter the right of the Magistrate to deal with that plea if it should be taken before him in his disposal of the case. However, when the plea was in due course raised before him the learned Magistrate regarded the High Court's order as leaving him no option but to go on with the case. The terms of the Magistrate's order are important in relation to the later order made by King, J., because King, J's order has been interpreted by the learned trial Judge as deciding the plea of autrefois acquit against the accused. What the Magistrate said was this: The accused raises the plea of autrefois acquit and states Section 403(1) Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C. and asks me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived, and their Lordships held that on the facts disclosed two offences were made out both under Secs.406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C. it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

(3.) He accordingly dismissed the petition. In my opinion the plain meaning of this order is that the Magistrate declined to decide the question of autrefois acquit raised by the accused, because he considered that he was precluded by the order of the High Court. The accused then applied for a revision of the Magistrate's order, and the matter came before Mr. Justice King. The learned Judge disposed of it in these words: "I see no ground for revision. The petitions are dismissed." It has been argued before us that as the point of autrefois acquit was raised and argued before the Judge he must be taken to have decided it in dismissing the accused's petition. I find it impossible to read the order so. Obviously it was incumbent on the accused in support of his petition to show that his plea of autrefois acquit was prima facie a good one, and that the Magistrate was wrong in refusing to decide it. But it by no means follows that because the learned Judge thought fit not to revise the Magistrate's order that he did so because he decided the plea of autrefois acquit was ill-founded. If that was the ground of his order he would have been revising the Magistrate's order, for he would have been deciding the point which the Magistrate had refused to decide. But this would be quite inconsistent with his order that he saw no ground for revision. In my judgment the learned Judge decided nothing more than that the case should go on, and he left the question of autrefois acquit open.