CARMEN Vs. O BRIEN

JUDGEMENT

(1.) The facts of the case out of which this rule arises are briefly as follows: On 18 October the petitioner in this rule obtained a warrant against the opposite party under Section 406, I.P.C., in the Court of the Police Magistrate at Alipur. On 9 November the case was made over by the Police Magistrate, Mr. Mahmood Ali, to Mr. S.C. Gupta for disposal. Mr. S.C. Gupta is a Magistrate exercising the powers of a Magistrate of the second class. Mr. Gupta began the trial on 9 November. When he examined one prosecution witness and adjourned the case till the 10th, when three more prosecution witnesses were examined. The trial proceeded also on 22nd November, when the accused was questioned and the charge was framed. The learned Magistrate then asked the accused if he claimed trial as a European British subject. The learned Magistrate was apparently under the impression that he was obliged to ask an accused, who apparently was a European British subject, whether he claimed to be tried as such. I may point out here that such a procedure is no longer necessary, so far as a case which comes within Ch. 44-A, Criminal P.C, is concerned. The accused apparently then stated that he did not desire to be so tried. His counsel then filed a petition claiming to be tried as a European British subject. Apparently he subsequently waived this claim and stated that he desired to cross-examine the complainant next day, and his client would waive his right to be dealt with as a European British subject. The case was then continued on 24 November, when more witnesses were examined and cross-examined, and the case was continued on 25 and 27 November and 4 and 21 December. On 21 December the accused once more claimed the right to be dealt with as a European British subject. The learned Magistrate holding that he had already been asked whether he claimed this right and had waived this right, rejected the application.

(2.) The accused then asked for time to move the District Magistrate or the appellate Court for a decision on the point. This, however, was refused and the case was continued. The accused then seems to have moved the Additional District Magistrate for a transfer of the case to the file of a 1 Class Magistrate, the contention of the accused being that as a, European British subject under Section 29-A, Criminal P.C., he was entitled to be tried by a Magistrate of the 1 Class. The complainant, opposite party, contended before Mr. Blair, the Additional District Magistrate, that as the accused had waived his right to be so tried he could not now re-assert it. Mr. Blair, however, held that the right might be exercised by the accused any time up to the time when the Court was going to pass judgment in the case. He further held that it was open to him to revive his claim even though he specifically abandoned it. In this view of the law he withdrew the case from the file of Mr. S.C. Gupta and made it over to Mr. Alfred Bose, a Magistrate exercising first class powers.

(3.) The complainant has moved this Court, and she contends first of all that the claim to be dealt with as a European British subject, in other words, in this particular case, that the case should be heard by a 1 Class Magistrate, must be made before the trial actually began; and secondly she contends that once the accused has waived his right to be dealt with as a European British subject or, in other words, to have his case tried by a Magistrate of first class powers, he cannot revive his right.