NAZAR MAHOMED Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment of the Mewas Agent, West Khandesh, by whom the appellants have been convicted under Sections 326 and 114 of the Indian Penal Code, and have been sentenced to various terms of imprisonment, each term being less than five years.

(2.) The appeal gives rise to a preliminary question of some difficulty, that is to say, the question whether this Court has jurisdiction to entertain an appeal from a convicted prisoner who has been sentenced by the Court of the Mewas Agent to a term not exceeding, five years imprisonment. The question was answered in 1890 by a Division Bench of this Court in Queen-Empress v. Sarya 15 B. 505 : 8 Ind Dec. (N. S.) 342. where it was held that such an appeal did not lie to the High Court. This decision was noticed and commented on in Imperatrix v. Ratnya 25 B. 667. where, however, no doubt appears to have been thrown on the authority of the earlier case. The authority of that case is, however, exposed to some doubt and uncertainty owing to the recent decision of this Court in Emperor v. Khalpa Ranchod 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cr. L. J. 533. For the decision in Sarya s case 15 B. 505 : 8 Ind, Dec. (N. S.) 342. proceeded mainly upon the view that Rule 44 of the Rules published under Section 3 of Act XI of 1846 was ultra vires, and consequently was of no avail to furnish this Court with jurisdiction to entertain an appeal in a case such as the present. But in Khalpa Ranchod s case 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cr. L, J. 533. the validity of Rule 44 came under the consideration of the Court, and the Chief Justice and Mr. Justice Heaton, after referring to Section 4 of Act XI of 1846, observed that Rule 44 appeared to them to permit this Court to entertain the appeal of the accused and, if necessary, to resort to the provisions of Section 428 of the Criminal Procedure Code, for the purpose of obtaining any additional evidence that might be necessary. It is true that in this case the Court s attention does not appear to have been directed to the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind. Dec. (N. S.) 342. and that there was also a reference to this Court from the Mewas Agent, the accused having been sentenced to death. At the same time it is, I think, apparent that there is real conflict between the decision in Khalpa Ranchod s case 36 Ind. Cas. 581 : 18 Bom. L. R. 789 : 17 Cr. L, J. 533. and the grounds upon which the decision was rested in Sarya s case 15 B. 505 : 8 Ind. Dec. (N. S.) 342. That conflict is the more noticeable, because the circumstance that Khalpa Ranchod was sentenced to death, and was not sentenced to a term of five years imprisonment or less, formed no part of the ratio of the Court s judgment. Moreover, after such argument as we have heard to day, it appears to me that some grounds do exist for re-considering the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind. Dec. (N. S.) 342. For even if, as the learned Judges in that case thought, Rule 44 was beyond the powers conferred by Section 3 of Act XI of 1846- --a point which is not wholly free from difficulty---yet it may still be necessary to consider what effect, if any, Act XIV of 1874 may have in the direction of saving this Rule 44 and preserving it as a valid rule.

(3.) On the whole, therefore, there being this divergence between the decisions, some inherent difficulty in the question itself and some reason to suppose that apart from the latter case the decision in Queen-Empress v. Sarya 15 B. 505 : 8 Ind, Dec. (N. S.) 342. may be incorrect, it appears to me desirable that the question should be referred to a Full Bench. The question referred will be that which I have stated at the beginning of this judgment. Shah, J.