Barendra Kumar Ghosh vs Emperor

Lord Sumner

This was an appeal from the High Court of Calcutta brought in a criminal matter under Art. 41 of the Letters Patent. The trial Judge reserved no question of law and the ease came to the High Court on the certificate of the Advocate-General of Bengal under Art. 26. Objection was taken at their Lordships'' bar to the competence of this appeal on the ground that Art. 41 does not give an appeal to their Lordships from the deter mination of the High Court, unless the case came before that Court at the ins tance of the trial Judge. Thereupon the appellant applied in the alternative for special leave to appeal. The materials being the same in both proceedings, though the questions arising are not identical, their Lordships were able to decide the appeal and the application together and, in view of the gravity and urgency of the case, they dispensed with a formal petition for special leave to appeal. After hearing the arguments, they announced last July the substance of the advice, which they would humbly tender to His Majesty, namely, that the appeal should be dismissed. At the same time their Lordships intimated that they were unable to advise that the application for special leave to appeal should be granted. Their reasons are as follows :

On August 3rd, 1923, the Sub-Post-master at Sankaritolla Post Office was count ing money at his table in the back room, when several men appeared at the door which leads into the room from a court-yard, and, when just inside the door, called on him to give up the money. Almost immediately afterwards they fired pistols at him. He was hit in two places, in one hand and near the armpit, and died almost at once. Without taking any money the assailants fled, separating as they ran. One man, though he fired his pistol several times, was pursued by a post office assistant and others with commendable tenacity and courage, and eventually was secured just after he had thrown it away. This man was the appellant; the others escaped. The pistol was at once picked up and was produced at the trial.

There was evidence for the prosecution, such as the jury was entitled to act upon, that three men fired at the postmaster, of whom the appellant was one ; that he wore distinctive clothes by which he could be and was identified ; and that, while these men were just inside the room another was visible from the room through the door standing close to the others but just outside on the doorstep in the court-yard. This man was armed but did not fire.

Except for a doubt as to the total number of the men concerned in the attack, most of the witnesses concurring in the above statement while ultimately the prisoner said they were only three in number, the evidence of the eye witnesses was consistent and uniform. The pistol thrown away by the prisoner was German automatic self-ejecting pistol. An ejected shell was found just inside the room near the door, and it fitted this pistol. The bullet which killed the postmaster was cut out of his back and was produced, and it also fitted the ejected shell and the pistol carried by the prisoner. This bullet was distinctly of German make. It was not however conclusively proved that no other assailant had a similar pistol to that which the prisoner had, or used a similar bullet to that found in the deceased.

The appellant was defended by five counsel. A few of the witnesses were cross-examined by them, but very sparingly, and only to test their adherence to their evi dence given in chief. Most of them were not cross-examined at all. No affirmative defence was indicated in any part of this cross-examination and no witnesses were called on the part of the prisoner ; but after the case for the prosecution was closed the prisoner made an oral statement, which of course was not on oath and was not cross-examined to. Here for the first time some foundation was laid, though vaguely, for what eventually became the case raised on this appeal.

According to the prisoner, he was the man outside the room. He said that he stood in the courtyard and was very much frightened. The prosecution had left his purpose to be inferred from his position and his action. Whether he was present as one of the firing party or as its commander or as its reserve or its sentinel was of no special importance on the case made for the Crown. What was singular was the prisoner''s own reticence on these matters. He dealt with none of them. Why he was there at all and why he did not take him self off again he did not say, nor did he even indicate his precise position in the yard. Accordingly the evidence called by the prosecution, that the man outside was close to the men inside and, being visible by those within, would also see what went on within, was never challenged at all. The appellant''s account was : "I took my stand on the portico" - this ran round two sides of the courtyard and according to the plan is consistent with a position on the steps of the doorway-

After a minute I heard two sounds - dum dum ; when I heard the sounds I was confused. I pers pired heavily and could not remember anything.

Afterwards I heard chor chor ; not finding the others there, I ran away.

Finally he said (and it was to this that the only affirmative part of his counsel''s cross-examination was directed)-

I have never assaulted anyone in my life. This is my first offence. I throw myself on the mercy of the Court. I was married hardly three months ago.

The charges preferred were murder under S. 302 of the Indian Penal Code, and voluntarily causing hurt under S. 394, while jointly concerned in an attempted robbery. To the first charge he pleaded not guilty. To the second he pleaded guilty of robbery. Their Lordships do not pause to remark on the inconsistency of this lat ter plea with the argument subsequently advanced in the High Court. There were further charges of attempted murder and attempt to commit culpable homicide, which were abandoned by the prosecution at the outset.

The learned trial Judge, Page, J., direct ed the jury, carefully, upon the footing, that the prisoner was one of the men inside the room, that he was one of those who fired, and might be the man who fired the fatal shot, and that in any event, if they were satisfied in terms of S. 34 of the Code, that the postmaster was killed in further ance of the common intent of all then the prisoner was guilty of murder, whether he fired the fatal shot or no. He did not deal with the prisoner''s statement until the prosecuting counsel reminded him of it, when he told the jury that its weight was for them, but it formed part of the evidence which they had to consider. He gave no express direction on the subject either of attempted murder or of abetting murder. It appears to their Lordships that, as the whole summing up was rested, in sentences more than once repeated, upon the pri soner being one of those inside the room and on his firing at the postmaster, the direction to the jury to take his statement into account might well be understood as impliedly instructing them to acquit, if they believed his whole statement as to his action and his connexion with the murder to be true, since in that case the conditions would not be fulfilled on which throughout the summing-up it was stated that the guilt of the accused must rest. This view, however, was not put forward in the Court below, and their Lordships are quite satisfied to deal with the matter as it was presented to the High Court upon the question of misdirection.

The note of the defence submitted, which wa3 taken by the trial Judge is as follows : "No evidence of murder, because no evidence that prisoner killed him." This he overruled, by saying quite rightly "there is evidence that accused fired the fatal shot." If the defence subsequently raised before the High Court had been put before him intelligibly, it should have been a submission that the jury ought to acquit if they thought that the accused either fired and missed or did not fire at all, and that they must not find that he fired the fatal shot without weighing the fact that the prosecution had not actually proved that neither of the other men fired from a German automatic pistol like the prisoner''s though there was evidence making it improbable that they were armed as he was.

As to the subsequent defence resting on abetment, it does not appear to have been thought of at all. It would be a circum stance proper to be considered on the ap plication for special leave, that, neither in cross-examination cor in argument before the verdict was found, was any point about abetment taken, nor was even any point as to an attempt clearly urged.

It was not too late to have amended the change and to have given further directions to the jury (Criminal Procedure Code, S. 227) and points not properly raised at the trial are not points which, in ordinary cir cumstances, deserve much consideration as grounds for special leave. In the present case, however their Lordships think it un necessary to dwell further on this matter.

In the period of over sixty years which have elapsed since the Indian Penal Code came into force, a very large number of cases have of course been reported, in which joint commission of crime, attempts to commit crime, and abetments of crime, in many and very various forms, have been the subject of judicial rulings. With in significant exceptions the Code has been in terpreted in all the Indian Courts down to a few years ago in conformity with the English law existing in 1860.

The learned Judges in the High Court examined the authorities so fully and ex haustively that it would serve no good purpose if their Lordships were to discuss them again seriatim.

The chief authority for the appellant is a decision of Stephen, J., in 1914, in Emperor v. Nirmal Kanta Roy (1914) 41 Cal 1072 : 10 CWN 723 : 24 IC 340 : 15 Cr LJ 460 a case in which two men, obviously acting in con cert, having both fired at a policeman, one hitting and killing him and the other failing to hit him at all, that learned Judge directed the acquittal of the latter, who was charged under Ss. 302/34 with murder. He held that, applying S. 34 to the case, the criminal act was the killing of the policeman : that only one man killed him, not both : that all the prisoner did was to try to kill him, and that the criminal act charged was not done by several persons at all, that is to say was not under the circumstances a joint act and he added "the only act he can be liable for under the section is one done by several persons, of whom he was one, that is by the man who escaped and himself. In order to make the accused liable for murder under S. 34 it would be necessary to say that an offence and an attempt to commit it are the same act, which seems to me not to be the case."

This view of the meaning of S. 34 was adopted in Emperor v. Profulla Kumar Mazumdar AIR 1923 Cal 453 : 50 Cal 41 the High Court observing that "S. 34 does not create an offence, the provisions thereof merely lay down a rule of law." Reference may also be made to Chandan Singh v. Emperor (1918) 40 All 103 : 43 IC 438 : 16 A LJ 11. Harnam Singh v. Emperor (1919) 21 PR 1919 Cr : 52 IC 395 : 20 Cr LJ 635 and Bahal Singh v. Emperor (1919) 24 PR 1919 Cr : 52 IC 791 : 20 Cr LJ 711.

Before 1914 there seems to have been no case in Bengal in which the view of S. 34 formulated by Stephen, J., in Nirmal''s case (1914) 41 Cal 1072 : 10 CWN 723 : 24 IC 340 : 15 Cr LJ 460 was adopted by any Judge while the cases to the contrary are numerous. It is evident that till then the view now contended for had a very small place in the voluminous body of criminal decisions, and it has since been as often criticised as followed, and more often than not has been disregarded altogether. This is so in all the Courts in India.

The doing to death of one person at the hands of several by blows or stabs, under circumstances in which it can never be known which blow or blade actually ex tinguished life, if indeed one only pro duced that result is common in criminal experience and the impossibility of doing justice, if the crime in such cases is the crime of attempted murder only, has been generally felt. It is not often that a case is found where several shots can be proved and yet there is only one wound, but even in such circumstances it is ob vious that the rule ought to be the same as in the wider class, unless the words of the Code clearly negative it. Of course questions arise in such cases as to the extent to which the common intention and the common contemplation of the gravest consequences may have gone, and participation in a joint crime, as distin guished from mere presence at the scene of its commission, is often a matter not easy to decide in complex states of fact, but the rule is one that has never left the Indian Courts in much doubt.

As illustrations of the course of decision, reference may be made to the cases of Queen Empress v. Jan Mahmed 1 WR Cr R 49. Queen Empress v. Mahabir (1898) 21 All 263 : (1899) AWN 76. Keshwar Lal Shaha v. Queen Empress (1902) 29 Cal 496. Gauri das Namasundra v. Emperor (1909) 36 Cal 659 : 13 CWN 680 : 2 IC 841 : 10 Cr LJ 186. Kanhai v. Emperor (1913) 35 All 329 : 11 ALJ 752 : 21 IC 657 : 14 Cr LJ 609 and Manindra Chandra Ghose v. Emperor (1914) 41 Cal 754 : 18 CWN 580 : 23 IC 1002 : 15 Cr LJ 402.

The appellant''s argument is, in brief, that in S. 34, "a criminal act," in so far as murder is concerned, means an act which takes life criminally within

S. 302, because the section concludes by saying "is liable for that act in the same manner as if the act were done by him self alone," and there is no act done by himself alone, which could make a man liable to be punished as a murderer, ex cept an act done by himself and fatal to his victim.

Thus the effect is that, where each of several persons does something criminal, all acting in furtherance of a common in tention, each is punishable for what he has done as if he had done it by himself. Such a proposition was not worth enacting, for, if a man has done something criminal in itself, he must be punishable for it, and none the less so that others were doing other criminal acts of their own at the same time and in furtherance of an intention common to all.

It follows from the appellant''s argu ment that the section only applies to cases where several persons (acting in furtherance of a common intention) do some fatal act, which one could do by himself. Criminal action, which takes the form of acts by several persons, in their united effect producing one result, must then be caught under some other section and, except in the case of unlaw ful assembly, is caught under attempts or abetment.

By way of illustration it may be noted that, in effect, this means, that if three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one.

This argument evidently fixes attention exclusively upon the accused person''s own act. Intention to kill and resulting death accordingly are not enough; there must be proved an act which kills, done by seve ral persons and corresponding to, if not identical with, the same fatal act done by one. The answer is that, if this construc tion is adopted, it defeats itself, for seve ral persons cannot do the same act as one of them does. They may do acts identically similar, but the act of each is his own, and because it is his own and is relative to himself, it is not the act of another, or the same as that other''s act. The result is that S. 34, construed thus, has no contact and is useless. Before the High Court the ap pellant''s counsel put an illustration of their own, which may be taken now, be cause, the whole range of feasible illustra tions being extraordinarily small, this one is equally exact in theory and paradoxical in practice.

Suppose two men tie a rope round the neck of a third and pull opposite ends of the rope till he is strangled. This they said really is an instance of a case under S. 34. Really it is not.

Obviously each is pulling his own end of the rope, with his own strength, stand ing in the position that he chooses to take up, and exerting himself in the way that is natural to him, in a word in a way that is his. Let it be that in effect each pulls as hard as the other and at the same time and that both equally contribute to the result. Still the act, for which either would be liable, is done by himself alone, is precisely not the act done by the other person.

There are two acts, for which both actors ought to suffer death, separately done by two persons but identically simi lar. Let us add the element, that neither act without the other would have been fatal ; so that the fatal effect was the cumulative result of the acts of both. Even this does not make either person do what the other person does : it merely makes the act, for which he would be lia ble if done by himself alone, an attempt to murder and not an act of murder, and accordingly the case is not an illustration of S. 34. To this the reply was made be fore the High Court, that, in a ease where death results from the cumulative effect of different acts, each actor must be deemed guilty of murder, though whether because it cannot be shown that it was not his act alone which took the victim''s life, or because the absurdity of the argument had to be disclaimed somehow, it is not easy to determine. Yet absurd it is, and absurd it must remain. "Where two men have done a man to death," said the learned counsel (Record 127) "your Lordships will not inquire in the individual effect of each blow : but the point I am insisting on is that the doing to death must have been the joint acts of both." This concession, rational enough in itself, is another way of saying that the section really means "when a joint criminal act has been done by the acts of two persons in furtherance of a common intention each is liable for that joint criminal act if he had done it all by himself."

On the other hand, if it is read as the appellant reads it, then, returning to the illustration of the rope, if both men are charged together but each is to be made liable for his act only and as if he had done it by himself, each can say that the prose cution has not discharged the onus, for no more is proved against him than an at tempt, which might not have succeeded in the absence of the other party charged. Thus both will be acquitted of murder, and will only be convicted of an attempt, although the victim is and remains a murdered man.

If, on the other hand, each were tried separately by different juries, either jury or both, taking the view that the violence used by the men before they killed the man, whom they knew to be dead, might return unimpeachable verdicts of murder, and then both men would be justly banged.

As soon, however, as the other sections of this part of the Code are looked at, it becomes plain that the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense.

By S. 33 a criminal act in S. 34 includes a series of acts and, further "act" includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one''s very eyes. By S. 37, when any offence is committed by means of several acts whoever intention ally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait." By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections re reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse by several persons ; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for that act" and "the act" in the latter part of the section must include the whole action covered by "a criminal act" in the first part, because they refer to it.

Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be pun ished for the commission of the offence.

Section 38 provides for different punish ments for different offences as an alter native to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.

The other part of the appellant''s argu ment rests on Ss. 114 and 149, and it is said that, if S. 34 bears the meaning adopted by the High Court, these sections are otiose. S. 149 however, is certainly not otiose, for in any ease it creates a specific offence and deals with the punish ment of that offence alone. It postulates an assembly of five or more persons having a common object, viz., one of those named in S. 141 (R. v. Sabed Ali) 11 Ben LR 347 at page 359 : 20 WR Cr 5 and then the doing of acts by members of it in pro secution of that object.

There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participa tion in action which is the leading feature of S. 34, is replaced in S. 149, by member ship of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resem blance and may to some extent overlap, but S. 149, cannot at any rate relegate S. 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.

As to S. 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition : Abhi Misser v. Lachmi Narain 1900 27 Cal 566 : 4 CWN 546.. Abetment does not itself involve the actual commission of the crime abetted. It is a crime apart.

Section 114, deals with the case where there has been the crime of abetment, but where also there has been actual commis sion of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presump tion juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by S. 114 brings the case within the ambit of S. 34.

The prosecution gave no evidence of any prior connection of the accused with the crime, but began the case at the time when the assailants appeared at the post office. The discovery of sundry pistols and daggers among the appellant''s effects, some hours after the crime, was proved but not that they were those used in the com mission of the murder.

There was nothing in the prosecution''s case to show that he had instigated or aided the commission of the crime before the actual commission began. The evi dence on this matter was wholly sup plied by the prisoner himself. His statement was that earlier in the day, when he was reclining on his couch after a meal, "one, whom he knew to be a God-fearing man and a man of learning," came and took him to a house where he found two young men. Here he was solicited to go with them in order to commit a dacoity, and when he reluc tantly consented and was shown how to use the pistol with which like the others he was then supplied he stipulated that he was not to be a party to any dacoity or murder and was told there was to be no murder and he was to be there merely for show.

It is plain from his statement that these parsons had some hold over him, for when by way of excusing himself, he had said "My brother is in Government service and draws large pay. The money I earn is enough for me," he states that the other "looked at me for a time. I could not speak" ; and when he had been told that he was to be there only for show, he adds, "I was not in a position to speak. I went with them."

Thus his statement goes at most to abetting a dacoity, the crime to the actual commission of which he pleaded guilty, but, as he had stipulated with success that there was to be no murder, it is not itself a state ment showing an abetment of murder. Strictly, therefore, there was no evidence of any such abetment as has to be proved before S. 114 comes into operation. As to the appellant''s presence at the post office, it has been already pointed out that he gave no explanation of it at all, but his story was much more consistent with participa tion in the actual commission of the crime than with mere bodily presence after pre vious abetment. Indeed, he says that when he ran away, the others had already disap peared; thus it would seem that he covered their retreat.

At any rate, his statement supports presence by way of actual participation in the criminal act or series of acts by which the post master was killed rather than such conduct as adds to previous abet ment bodily presence at the commission of the crime abetted and nothing more, and S. 114 was never really made applicable for want of proof of abetment of the very crime, at the commission of which the ap pellant was actually present.

For these reasons their Lordships think that only the most unsubstantial foundation was laid for any discussion of S. 114 at all, but as it was fully considered by the High Court, they state their own con currence in the conclusion of the learned Judges below. Even if it be the case that, the accused could have been convicted as an abettor, present at the commission of the offence, this is not to say that, if to presence there is added proof of partici pation, he could not also be convicted under Ss. 34 and 302. Participation must depend on the facts, but it is not negatived merely because actual presence and prior abetment are proved.

Their Lordships do not think it useful to go at length into the history of the preparation and enactment of the provi sions of the Indian Penal Code, which played no inconsiderable part in the dis cussion of this subject in India.

That the criminal law of India is pres cribed by and, so far as it goes, is contain ed in the Indian Penal Code, that accord ingly (as the Code itself shows) the criminal law of India and that of England differ in sundry respects, and that the Code has first of all to be construed in accordance with its natural meaning and irrespective of any assumed intention on the part of its framers to leave unaltered the law as it existed before, are though common-places, considerations which it is important never to forget. It is, however, equally true that the Code must not be assumed to have sought to introduce diffe rences from the prior law.

It continues to employ some of the older technical terms without even defining them as in the case of abetment. It abandons others, such as principal in the first or the second decree, but it must not be supposed that, because it ceases to use the terms, it does not intend to provide for the ideas which those terms, however imperfectly, expressed. One object which those who framed the Code had in view, was to simplify the law ; and to get rid of the terms "principal in the first degree" and principal in the second degree" and others was no doubt a step in that direction, but to introduce a general section, S. 34, which has little, if any, content, and to attach a wholly new importance to abetments and attempts, was to complicate not to simplify the administration of the law, for participation and joint action in the actual commission of crime are, in substance, matters which stand in antithesis to abet ments or attempts. If S. 34 was deliberate ly reduced to the mere simultaneous doing in concert of identical criminal acts, for which separate convictions for the same of fence could have been obtained, no small part of the cases which are brought by their circumstances within participation and joint commission would be omitted from the Code altogether.

If the appellant''s argument were to be adopted, the Code, during its early years, before the words " in furtherance of the common intention of all " were added to S. 34, really enacted that each person is liable criminally for what he does himself, as if he had done it by himself, even though others did something at the same time as he did. This actually negatives participation altogether and the amend ment was needless, for the original words expressed all that the appellant contends that the amended section expresses. One joint transaction by several is merely re solved into separate several actions, and the actor in each answers for himself, no less and no more than if the other actors had not been there.

This got rid of questions about principals in the first or the second degree by ignor ing them, and the object of the framers of the Code was attained. In truth, however, the amending words introduced, as an essential part of the section, the element of a common intention prescribing the con dition under which each might be crimi nally liable when there are several actors.

Instead of enacting in effect that partici pation as such might be ignored, which is what the argument amounts to, the amend ed section said that, if there was action in furtherance of a common intention, the individual came under a special liability thereby, a change altogether repugnant to the suggested view of the original section.

Really the amendment is an amendment, in any true sense of the word, only if the original object was to punish participants by making one man answerable for what another does, provided what is done is done in furtherance of a common inten tion, and if the amendment then defines more precisely the conditions under which this vicarious or collective liability arises. In other words, "a criminal act" means that unity of criminal behaviour, which re sults in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence.

Their Lordships are accordingly of opi nion that the Full Bench of the High Court rightly construed S. 34 of the Indian Penal Code, and that the view taken of it in Nirmal Kantha Roy''s case (1914) 41 Cal 1072 : 10 CWN 723 : 24 IC 340 : 15 Cr LJ 460 is not correct. This disposes of the main ques tion raised in the appeal and in the appli cation for special leave. Assuming that Page, J., in taking the view of S. 34, which he did take, directed the jury correctly on the subject, there is admittedly little left in the general objections to his summing up.

It was very fully examined by the Full Bench of the High Court, and the learned Judges were unanimously of opinion that it did not call for any review. Their Lord ships do not think it necessary to re-exa mine it sentence by sentence, or to reiterate the reasons which the learned Judges gave for their conclusion. It is enough to say that, having fully considered the summing-up themselves, they entirely concur in the conclusion of the Full Bench. The learned Judge''s direction was not erroneous in point of law, and it sufficiently dealt with the material facts.

It therefore contained no misdirection ; still less was it such a summing-up as affected the due course of justice and the right of the prisoner to be fairly tried, according to law within the strict and narrow limits, which have long been laid down by their Lordships'' Board when special leave to appeal is asked for in criminal matters.

The argument against the competence of the appeal was substantially as follows : Subject to the satisfaction of the conditions which Art. 41 contains, the appeal is a limited appeal as of right, and must, there fore, be strictly construed. It is given in two cases only, and beyond those cases any appeal is incompetent. The two eases are these : first that the High Court, in the exercise of its original criminal jurisdiction, has passed a judgment, order or sentence ; and, second, that there has been a criminal ease where the Court, exercising original jurisdiction in that case, has itself reserved a point or points of law for the opinion of the High Court. The present case does not fall within the words "from any judg ment, order or sentence of the said High Court of Judicature......made in the exer cise of original criminal jurisdiction" but it must be brought within the second alter native. Now, the Advocate-General of Bengal, under Art. 26 of the Letters Patent, granted his certificate that in his judg ment " whether the alleged direction or the alleged omission to direct the jury do not in law amount to a misdirection should be further considered by the said High Court."

After full consideration of the question so raised, the Full Bench of the High Court made its order in the following terms : "The order of the Court is that the application made by the prisoner under clause 26 of the Letters Patent do stand dismissed" ; and this is the order by which the Appellant is really aggrieved. It is true that in his petition to the High Court for a declaration of the fitness of his case for further review he says : " that being aggrieved by the said dismissal of his appli cation and by the judgment and sentence passed and pronounced upon him by the Hon''ble Mr. Justice Page, your petitioner prays for leave to appeal therefrom to the King''s Most Excellent Majesty in Council" : but this statement is doubly inexact.

The High Court does not and does not purport to grant leave to appeal : it grants or withholds a declaration of its opinion on the fitness of the case for appeal. Further, the appeal is from the order of the High Court itself refusing to exercise its power to interfere with the trial and sentence. If it had discharged the sentence and directed an acquittal to be entered, the appellant would not have been aggriev ed by the judgment and sentence of Page, J., at all. If it had altered the sentence, his grievance would have been that the alteration did not go far enough. According ly his application is made in a case which does not fall within the words "in any criminal ease where any points of law have been reserved for the opinion of the High Court in manner hereinbefore provided by any Court which has exercised original jurisdiction," for the points of law were reserved by the Court which exercised original jurisdiction, nor did the Court exercise its discretion in the matter in terms of Art. 25.

That article provides that but for the case therein excepted, "there shall be no appeal to the High Court from any sentence passed in any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the High Court," and although Art. 26, which states what is to be done with these points reserved introduces a new reserving authority, determination of the High Court on the question reserved is final, except only for the express provision of Art. 41. It says :-

And we do further ordain that on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-Gene ral that in his judgment..................a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and au thority to review the case and finally determine such point or points of law.

Now Art. 41 names, as part of the defin ing limits of the right to appeal to His Majesty in Council, a reservation of points of law by a Court exercising original juris diction, which is not the reservation made in this case, and the fact that a reservation by the Advocate-General is mentioned and provided for in Section 26, and is omitted from Section 41, makes the intention clear.

When an authority outside the High Court is empowered to bring about a right of first appeal by a certificate of his own, that appeal is to the High Court and is finally concluded by its deter mination. There is no second appeal. When the reservation originates with in the High Court itself, then, sub ject to the approval of the High Court to the fitness of the case in that regard, a second appeal is competent. With Art. 41 the Advocate-General has nothing to do. The proceedings of the two tribunals, the High Court exercising Original criminal jurisdiction and the High Court determining by its judgment points reserved for its consideration, are strictly two proceedings, and, when the trial judge is functus officio and the whole matter has passed to the Court in review, the condi tions under which the further decision in review can be brought before His Majesty in Council under Art. 41 are strictly limited to those which that section pres cribes for that very case. Such was the submission on behalf of the respondent, and there can be no doubt that it was a weighty one.

Having arrived at the above-stated con clusion on the construction of the Code, which goes to the root both of the appeal and the application for special leave, their Lordships do not, however, think it neces sary to proceed with the question whether in this case an appeal under Art. 41 of the Letters Patent is competent.

In 1901 an appeal Subrahtnania Ayyar v. King Emperor (1902) 26 Mad 61 : 28 IA 257 : 11 MLJ 233 : 3 Bom LR 540 : 5 CWN 866 : 10 MLJ 147 (P.C.) was heard and determined by their Lordships'' Board, in which the decision under review was that of the High Court at Madras in a criminal matter, brought before it on the certifi cate of the Advocate-General under Art. 26. The terms of the Letters Patent of the High Courts of Calcutta and Madras are for the present purpose identical. No ob jection was taken by counsel that under these circumstances an appeal to their Lordships'' Board under Art. 41 was in competent, nor is any question raised on this point in the judgment of the Board, and the explanation of this circumstance probably lies in the fact, that in addition to the appeal under Art. 41, special leave to appeal had been applied for and had been granted by Her Majesty in Council on 29th June 1900.

The decision in that case does not there fore conclude this matter, but their Lord ships think it inexpedient to deal with the objection now, since on the other grounds above stated the appeal itself in their opinion must fail. They desire, however, to say that they must not be understood as giving any encouragement to appeals in criminal matters under Art. 41, where no point of law has been raised by the trial judge, nor are appellants, who have chosen this mode of bringing their case before the Board, to assume that an application for special leave to appeal as an alternative will be granted or even entertained by their Lordships.

For similar reasons they do not deal with other considerations relating to the grant of special leave to appeal to His Majesty such as the following.

Although in general hardly anything could more conspicuously violate natural justice than to convict and sentence a man for an offence of which he was not guilty, it may be that irregularity alone is the proper term to use, when, the facts being the same, the evidence the same, the guilt the same, and the punishment the same, error has occurred in indicting him under the section which charges the full offence instead of under the sections which charge an attempt at or an abetting of the full offence, especially when this error could have been corrected in time, if the accused had put his counsel in a position to raise his defence clearly and in due form at the trial. Upon this point also their Lordships express no opinion at present.