Rahman and others vs Emperor

Courtney-Terrell, C.J.—These are two applications made on behalf of live persons who have been sentenced to death in respect of a murder. Four of the applicants were convicted by the Sessions Judge on the verdict of the jury and were sentenced by him to death. The matter of their conviction and sentence came before this Court by way of the usual reference and by way of appeal. In the case of the fifth the jury by a majority acquitted the accused man. The Judge however disagreed with the verdict and referred the case to the High Court. The High Court in his case accepted the reference convicted that individual of complicity in the murder and sentenced him to death.

The present applications are for the grant of a certificate by this Court that the case is a fit and proper one for consideration by His Majesty in Council by way of appeal. Now, it is clear that his Majesty in Council under the royal prerogative has the right to entertain appeals from criminal judgments in any part of His Majesty''s dominions and it is the right of the subject who is aggrieved by such conviction and sentence to approach His Majesty in Council with, a view to his case being heard. It is however a very different question whether this Court has in the circumstances of a criminal appellate decision, the right or power to certify that the matter is fit to be heard by His Majesty in Council. The matter of appeals to His Majesty in Council from decisions of this Court is limited by the Letters Patent under which our jurisdiction is exercised. Cl. 31, Letters Patent, refers to civil appeals only the matter of criminal appeals is dealt with by Cl. 33 and the wording of that clause is very precise and must be strictly construed. In the first place there is granted an appeal from any judgment, order or sentence of the High Court of Judicature at Patna "made in the exercise of original criminal jurisdiction."

Now, the cases of these petitioners, do not come under the exercise of original criminal jurisdiction. In the case of the four persons who were convicted by the jury and sentenced to death by the Judge, it is manifest that, notwithstanding the necessary reference to the High Court for confirmation of the sentence, the jurisdiction exercised by the High Court was of an appellate character and can in no sense be said to be of an original nature. It is urged however that in the case of the person who was acquitted by the jury and whose case was referred to the High Court by the Judge, the High Court in sentencing him to death exercised original jurisdiction. This argument is hardly worthy of serious attention. The accused person is not in the circumstances brought before the Court nor arc the witnesses heard by the Court and moreover it is incumbent upon the Court in exercising its jurisdiction in such cases to pay weight to the verdict of the jury and to the opinion of the Judge as well as to the evidence which was recorded in the lower Court. In paying attention to these matters, it is obvious that this Court has not exercised original criminal jurisdiction, but is exercising jurisdiction by way of appeal. Similarly it might have been argued if there had been any weight in such argument, that in the case of a person who has been acquitted by the jury, but whose case is brought on appeal by the Government before the Court, that the Court in convicting such a person and passing sentence was exercising gorilla criminal jurisdiction. It is clear that in neither case has the original Criminal jurisdiction been exercised; in both cases the jurisdiction is of an appellate character. The second class of cases in which leave to appeal to His Majesty in Council is granted by Cl. 33, Letters Patent, is when a point or points of law have been reserved for the opinion of the said High Court in the manner provided by the 18th clause of the Letters Patent. It could not be argued that this case came under that class.

Now, a precisely similar clause was construed by their Lordships of the Privy Council in Barendra Kumar Ghosh v. Emperor, 1925 PC 1 = 85 IC 47 = 26 Cr LJ 431 = 52 IA 40 = 52 Cal 197 (PC), and the passage in question is at p. 57 where the decision is given by Lord Sumner. In that case their Lordships were considering Cl. 41, Letters Patent of 1865 of the Calcutta High Court, and, in construing that decision, they pointed out that under the section which corresponds as I have said to Cl. 33, Letters Patent, an appeal is limited and the right must be strictly construed and is given in the two cases to which I have made reference and beyond those cases any appeal is incompetent. It follows therefore that there being no right of appeal granted by the Letters Patent and certainly no right of appeal under the Privy Council Act, the petitioners, who desire to appeal, must have recourse to the prerogative and approach His Majesty in Council direct for leave to present their case. We know of no case before the High Court in India in which their Lordships have directed that in such a case, that is to say, where an appeal is presented for the exercise of the royal prerogative either leave or a certificate from the tribunal which passed the appellate decision has been required as a preliminary step. In such a case and in one recent case in particular from this High Court I refer to the case of Rashbehari Lal v. Emperor, 1933 PC 208 = 1933 Cr C 1306 = 144 IC 911 = 34 Cr LJ 843 = 60 IA 354 = 12 Pat 811 (PC), the appellant proceeded direct, without an intermediate application to this Court, to His Majesty in Council and there obtained leave to present his case. It is open to the petitioners here to take the same course. It is not necessary in the circumstances to go into any of the questions which are raised in the petition of appeal.

These applications are accordingly dismissed.

Agarwala, J.

I agree.