CYRIL BERTRAM PLUCKNETT Vs. EMPEROR

JUDGEMENT

(1.) This is an application on behalf of Cyril Bertram Plucknett who was tried before Sen J. and a special jury in the High Court Sessions on a charge of murder by causing the death of one Edward Gordon Jones and thereby committing an offence under Section 302, I. P.C. Cyril Bertram Plucknett was, by the unanimous verdict of the jury, found guilty of murder and sentenced to death. An application was made on his behalf to the Advocate-General of Bengal for a fiat under the provisions of Clause 26 of the Letters Patent of this High Court. The preceding Clause (i.e., Clause 25) provides as follows: There shall be no appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction, which may be constituted by one or more Judges of the High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court.

(2.) No point of law was in fact reserved by the learned trial Judge and further the Advocate- General refused to grant a fiat under the provisions of Clause 26, Subsequently, an application was made to this Court under the peculiar and special provisions of Ch. 33, Criminal P.C., for leave to appeal to a Bench of this Court. That application was also refused on Wednesday last, the 4 August. The present application is made under Clause 41 of the Letters Patent. That clause is in these terms: And we do further ordain that, from any judgment, order or sentence of the said High Court of Judicature at Fort William in Bengal, made in the exercise of original criminal jurisdiction, or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court in manner hereinbefore provided, by any Court which has exercised original jurisdiction, it shall be lawful for the persons aggrieved by such judgment, order, or sentence to appeal to us, our heirs or successors in Council, provided the said High Court shall declare that the case is a fit one for such appeal and under such conditions as the said High Court may establish or require subject always to such rules and orders as we may, with the advice of our Privy Council hereafter make in that behalf.

(3.) What we are now asked to do therefore is to declare that although no appeal can be made to this Court the case of Cyril Bertram Plucknett is one fit for an appeal to His Majesty in Council. Mr. J.P. Mitter appearing on behalf of the convicted man has stated quite frankly that, as no point of law was reserved or referred for the opinion of this Court, he can only succeed if at all on this application if he can succeed in bringing himself strictly within the conditions laid down by the Judicial Committee of the Privy Council as being those on which they will be disposed to entertain, appeals in criminal matters. Mr. Mitter at the outset argued that the provisions of Clause 41 are disjunctive in character and that the convicted person has a right to come to this Court and ask for a declaration of the kind now sought, provided that either a point of law has been reserved or the High Court declares the case to be a fit one for an appeal to His Majesty in Council. Whether that is altogether the right view of the meaning of the clause seems more than a little doubtful, having regard to certain observations in the decision of their Lordships of the Judicial Committee of the Privy Council in Barendra Kumar Ghosh V/s. Emperor , the head note of which says inter alia: Quasi. Whether an appeal lies to the Privy Council under Clause 41 of the Letters Patent save where the decision appealed from is upon a question reserved for the opinion of the Court by a Court of Original Criminal Jurisdiction.