Emperor vs Albert Barney

Agarwala, J.—The petitioner, Private Barney of the Lincolnshire Regiment, stationed at Dinapore, has been committed to this Court for trial on a charge of culpable homicide not amounting to murder. The trial has been fixed for 16th October. The petitioner now prays that sufficient European jurors may be summoned for the trial to ensure that he shall be tried by a majority of such jurors.

The petition is opposed by the Advocate-General on the ground that the petitioner failed to apply that he should be tried under the provisions of Chap. 33, Criminal P.C., prior to the making of the commitment order. Section 443, which is the first of the sections composing Chap. 33 of the Code, provides that where, in the course of the trial of any offence punishable with imprisonment, the accused person, at any time before he is committed for trial u/s 213, claims that the case ought to be tried under the provisions of this chapter, the Magistrate inquiring into or trying the case, after making such inquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce, evidence in support of his claim, shall, if he is satisfied that the case is one to which provisions of that chapter apply, record a finding that the case is one which ought to be tried under the provisions of this chapter or if he is not so satisfied, record a finding that it is not such a case.

The contention on behalf of the Crown is that an accused person is not entitled to the benefit of the provisions of chap. 33, in a case to be tried by jury in this Court unless he has made an application u/s 113, before the commitment order is made. Reference was also made to the provisions of Section 275 of the Code. The material provisions of that section are that in a trial by jury before the High Court, of a person who has been found under the provisions of this Code to be a European or Indian British subject a majority of the jury shall, if such person before the first juror is called and accepted so requires, consist, in the case of a European subject, of persons who are Europeans or Americans and, in the case of an Indian British subject of Indians.

Mr. Nageshwar Prasad who appears on behalf of the prisoner states that it is his intention to apply at the trial under the provisions of this section that his client shall be tried by majority of persons who are European British subjects or Americans. The learned Advocate-General contends that such an application cannot be considered because the prisoner has not been found to be a European British subject. Prom the order-sheet of the learned Magistrate who committed this case, it appears that on 29th July 1940, the Magistrate explained the provisions of Section 447 of the Criminal P.C., to the prisoner and his lawyer. Section 447 is in this language:

If at any stage of an inquiry or trial under this Code it appears to the Magistrate that the case is or might be held to be a case which ought to be tried under the provisions of this chapter, he shall forthwith inform the accused persons of his rights under this chapter.

From a consideration of Sections 275, 443 and 447 the following points are clear: First that a person under trial is entitled to make an application to be tried under the provisions of Chap. 33, but that such an application must be made before the commitment, in the case of an inquiry prior to commitment to the High Court. Secondly, that at the trial, before the first juror is empanelled, the accused is entitled to make an application to be tried by jurors, the majority of whom are Europeans or Americans if he is a European and by a jury the majority of whom are Indian British subjects if he is an Indian. Thirdly, that if the Magistrate holding an inquiry is of opinion that the case ought to be tried under chap. 33, it is his duty to inform the accused of his rights under that chapter.

Now, it appears to me that the contention of the Crown is right in so far as it goes, namely that an application cannot be made at the trial, u/s 275, unless it has been found that the prisoner is a European British subject or an Indian British subject, as the case may be. I may observe that the accused is a Private in a British regiment and that an officer of that regiment has sworn an affidavit that the accused is a European British subject. This affidavit has not been challenged.

The question that is before me now however is whether there has been such a finding as is required by Section 275. The order-sheet of 29th July provides the answer to that question. The Magistrate holding the inquiry is required to explain the provisions of the chapter to the accused only if he is of opinion that the case is or might be held to be a case to be tried under the provisions of this chapter. The Magistrate has recorded the order to which I have already referred and which clearly indicates that in the opinion of the Magistrate the present case is one to which the provisions of the chapter apply. There is therefore in my opinion a finding of the Magistrate that the case is one in which the prisoner is entitled to the provisions of the chapter. That being so, the prisoner will be able to maintain an application to be tried by a jury, the majority of whom are Europeans, if he cares to make such an application before the first juror is empanelled at the trial.

The prayer of the petitioner that sufficient European jurors should be summoned for this purpose is therefore allowed.