Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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Passing to the question of what action this Bench cntn take in the pto-
ceeding under section 12 of the Lower Burma (yourts Act, it appears to q^e
clear that it can do what a High Court can do under section 20 of th©
Letters Patent constituting it. Whether it can do more owing to some:
what wider terms, need not be considered in this case, for the case does
not call for such question to be decided.

All the High Courts of India have held that it is open to a Bench
dealing with a case under sostion 2G of the Letters Patent, and finding
that there has been an error of law, to go into the facts and evidence, and
ikself to decide the guilt or innooence of the accused. All the cases, except
one, in which it has been so held, were decided previous to the ruling of
Their Lordships of the Privy Council in Makin v. The Attomey^General
for New Sjuth Wales (G). That case and the subsequent ruling of Their
Lordships in Subramania Ayyar v. King^Emperor (.5) apixmr to me to call for
couiideration whether the rulings of the Indian High Courts above referred

(ft) (1894) A. C, 57.

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tt) are unto all circumstances correct in law. Under section 26 of the
Letters Patent, the Advocate-General, and under section 12 of the Lower
Burma Courts Act, the Government Advocate may certify that any point
or question of law in a case should be further considered, and on this ques-
tion coming before a Bench, the Bench may review the case, or such part
of it as may be necessary, and finally determine the question, and may
thereupon alter the judgment, order or sentence (the last word is the only
one used in section 20 of the Letters Patent) and may pass such judgment,
order or sentence as it thinks right. The power of a Bench when a Judge
fias himself reserved a question of law under section 434 of the Code of
Criminal Procedure is identical.

In Makin v. The Attorney-General for New South Wales (6) the
learned Judge who presided at the trial of the prisoners reserved points
of law as to the admissibility of certain evidence. The case came before a
Bench of the Supreme Court on a case stated by him, and under the law of
New South Wales the Bench had power to determine the questions of law
and to " affirm, amend, or reverse the judgment given or avoid or arrest
the same, or to order any entry to bo made on the record that the person
convicted ought not to have been convicted, or to make such other order as
justice requires, jyrovided that no conviction or judgment made thereon
shall he reversed^ arrested or avoided on any case so stated unless for some
substantial wrong or other miscarriage of justice ^

An appeal was made to the Privy Council against the decision of the
Bench of the Supreme Court which held the evidence admissible and sus-
tained the conviction of the prisoners. Although Their Lordships of the
Privy Council upheld the ruling of the Bench on the questions as to the
admissibility of evidence, they saw fit to give their opinions also upon an-
9ther question which had been referred by the learned Judge who tried
the case, wliich was whether, if the evidence was not admissible, the
prisoners were rightly convicted. Their Lordships gave their opinion on
this point because of its importance. They say : —

*Mhe iwint of law involved i^^ whether, where the Judge who tries a case reserves for the
opinion of the Court the question whether evidence was improperly admitted, ■ and the Court
comes to the conclusion that it was not legally admissible, the Court can neverthele^ affirm the
judgment, if it is of opinion that there was sufficient evidence to support the conviction inde-
pendently of the evidence improperly admitted, and that the accusal was guilty of the offence
with which he was charged."

It was admitted that it would not be competent to take this course at
common law, but it was argued that the law of the Colony which I have
quoted authorized the (^ourt to take such course.

Their Lordships say in regard to this : — ..
*' It is obvious that the construction contended for transfers from the jury to the Court the
determination of the question whether the evidence established the guilt of the accused. The

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WTOlt is that in a ca«c whore the accused has the right to have his guilt or innocence tried by a
jury, the judgment passed on him is made to depend not on the finding of the jury, but on the
decision of the Court. The Judges are in tmth substituted for the jury, the veixUct becomes
theirs and theii-s alone, and is anived at upon a pemsal of the evidence without any oppor-
tunity of seeing the demeanour of the witnesses, and weighing the evidence with the assist-
ance which this affonb. It is impossible to deny that such a change of the law would be a
Tcry serious one, and that the construction which Their Lordships are invited to put upon the
enactment would gravely affect the much cherisheil right of trial by jury in criminal cases. ♦
♦ • • These are startling consequences which strongly tend in Their Lordships' opinion
to show that the language usetl in the proviso was not intended to a[)ply to circumstances such
as those under consideration. * * * * In Their LorcUhiiii' opinion substantial
wrong would be done to the accused if he were deprived of " the verdict of a jury on the facts
proved by legal evidence, and there were substituted for it the verdict of the Court founded
merely upon a perusal of the evidence."

These remarks appear to me to be apposite in considering whether by
section 26 o£ the Letters Patent the Legislature intended to alter the com-
mon law which had prevailed in the Presidency Towns, and to bring about
what Their Lordships term startling consequences.

In Suhrahmania At/f/ar v. King-Emperor (5) the Chief Justice of the
Madras High Court distinguished the case before the Bench from Mahin v.
Tlie Attorney-General for Xew South Wales (G) by saying that under sec-
tion 26 o£ the Letters Patent, the Bench had power to " review the case,"
whereas the New South Wales Act did not give such power to the tribunal
to which a question of law is referred. The case of Suhrahmania Ayyar v.
King-Emperor (5) was fully argued before Their Lordships of the Privy
Council, and the argument was amongst other points directed to the ques-
tion whether the Bench of the Madras High Court had had power to go
into the facts of the case itself, and to decide it as it had done. The case
was one of an illegal trial by reason of mis-joinder of charges. The Bench
of the Madras High Court held that there had been mis-joinder, and that
the first count on which the prisoner had been tried should have been struck
out of the indictment, but it reviewed the case on the evidence relating to
two other counts of the indictment. Eventually the Bench modified the
yordict of the jury and sentenced the accused.

In dealing with the question whether the course adopted by the Bench
of the Madras High Court had been right, the Lord Chancellor who de-
livered the judgment of Their Lordships of the Privy Council used langu-
age which plainly shows that in Their Lordships' opinion there could be no
question as to that course having been plainly wrong and inadmissible.
The judgment says : —

" Upon the assumption tliat the trial was illegally conductctl, it is idle to suggest that there
la enough left ui>on the indictment upon which a conviction might have been supportctl if the
accused had been properly tried."

Amongst the objections to the course, the judgment states ;—
*' It would in the fir&t place leave to the Court the functions of the jury/'

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HLA GYI r. lMP«ft^».

So that when a case dealt with ^n>doP section 26 of the Letters Patent
came before Their Lordships, they reiterated their opinion that in a case in
which the accused had a right to have -ibe facts on which ho was charged
decided upon by a jury, a Bench, befe^ which qaestions of law came up
for decision, could not assume the fun^Hoi^ of a jury.

This last case is direct authority for holding that where there has been
illegality in the trial, other than improper admission or rejection of evi-
dence and misdirection in the charge, the Bench cannot itself decide the
case on the evidence and, in my opinion^ thiC rwling is applicable to the
present case. The case w^e now have t^ ^leaj with brings the objections to
doing so into great prominence, for if we as u Bench dealt with the evi-
dence, and tried and decided the guitfc or iajaocerroc of the accused, we
should be trying him for the greatest offence kuowo to the law, and it
would be open to us to sentence him ta death, not only without having seen
the witnesses and their demeanour, but <» mere Kkemoranda of the sub-
stance of the evidence, the rule of this. Court uuder section 3G5 of the Code
of Criminal Procedure requiring only the sahstanee of the evidence to be
taken down by a Judge presiding at a Sessions trial in its original Crimi^
nal Jurisdiction.

I desire to emphasize my intentioii ef eonfiniiig my remarks as to a
Bench not dealing with the facts and evidence in a case before it, to a
case in which there has been an illegal verdict a»d sentence.

The learned Counsel for the accusotl has questioned the right of the
Bench to order the re-trial of the acciteed. It appears to me to be unneces-
sary to decide whether section 12 of the Lower Burma Courts Act gives a
Bench such power or not.

In my opinion the safest course to adopt is that adopted by Their
Lordships of the Privy (Council in Suhrahmania At^yar v. King-Emperor (5).
They merely set aside the conviction. They did not expressly acquit thei

If it is said that such a course would cause a failure of justice as a
result of mere error in procedure, I would, answer that this is not neces-
sarily so. After an order merely setting aside the judgment of conviction
and the sentence it will, in my view', be open to tho authorities, if they are
so minded, to prosecute the accused again for the same offence and upon
the same facts as those on which he has already been tried. Under section
403 of tho C^ode of Criminal Procedure the only bar to a second prosecution
on the same facts for the same offence is a previous conviction or acquittal.
The accused was convicted at his trial, but if this Bench sets aside the con-
viction, it will no longer remain in force, and cannot consequently be a
bar to a fresh prosecution. Again if the order I contemplate is made, it

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iroold not expressly be an acquittal nor do I think that it could be said to
amount to an acquittal, therefore the accused could not validly contend that
a previous acquittal was a bar to his further prosecution and trial.

On the above grounds I would set aside the judgment of conviction of
murder entered up on the trial under section 305 of the Code of Criminal
Procedure and the sentence of death passed upon the accused.

Irwin, J. — I agree that the extract from the charge which is set out
in the judgment of the learned Chief Judge, was a misdirection. I think
it was quite correct to tell the jury that they might draw an inference
from the fact that the accused's pleader suggested that a certain person
named by him had been struck by Houk Kan while none of the witnesses
to the alleged striking could tell the name of the person who had been
struck, but I laid too much etnphasis on this fact, and that part of my
remarks which referred to the accused and his pleader not having attempt*
ed to bring San Wa to justice was likely to mislead the jury on a material
and important point.

I also agree that I failed to explain the law fully to the jury. In par-
ticular I did not leave to the jury the question whether the accused knew
his act to be so imminently dangerous that it must in all probability causo
such injury as was likely to cause death.

When the jury returned an ambiguous verdict I have no doubt now
that the proper course would have been to question them under section 303.
of the Code of Criminal Procedure, but I do doubt whether the course I
took, of sending the jury back after further explaining the law to them, is
a positive illegality and vitiates the subsequent verdict. What was required
was to ascertain the opinion of the jury on a question of fact the law bear-
ing on which had not been properly explained to them before they first
retired. I attained this object by explaining the law to them and giving
them time to think it over instead of asking cut and dry questions which
they would have to answer without leaving the box. I am conscious of the
fact that in criticising my own procedure it is diflScult if not impossible
completely to eliminate personal considerations, but I am not prepared to
say that the error now under con>idoratioii is a positive illegality. If it is
no more than an irregularity, section 537 of the Code of Criminal Pro-
cedure will apply. Section 12 of the Lower Burma Courts Act, 1900, gives
this Court the power of review, similar in nature to the power conferred
by section 434 of the Code of Criminal Procedure. In Queen-Einpress v.
Appa SubJiana Mendre (7) it was held that section 537 applies to proceed-
ings under section 434, one of the reasons given being that the power of
review is conferred by section 434. I do not think that ruling has ever

(7) (1884) I. L. R., 8 Bom., 200,

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boon dissonted from, and I do not doubt that section 537 applies to pro-
coedings under section 12 of the Lower Burma Courts Act. That section
reads " subject to the provisions hereinbefore contained " (sections 529 to
5v]6) " no finding, sentence or order passed by a Court of competent juris-
diction shall be reversed or altered in revision on account of any error or
irregularity in the proceedings during trial, unless such error or irregularity
has in fact occasioned a failure of justice." It cannot be said off hand
that the irregularity now in question has occasioned a failure of justice ; it
might bo said perhaps after examination of the evidence.

The proposition that sending back the jury was not illegal and
does not vitiate the subsequent verdict has some support in the Bombay
case which I have just quoted. Two prisoners wore charged with murder,
and each of them with abetment of murder committed by the other. The
jury returned a verdict of guilty, which on their being questioned was
found to mean abetment of murder by Mome person unknown. The Judge
said he could not accept this verdict because it was not a verdict on the
indictment. The Advocate-General then applied to be allowed to add a
charge which would fit the verdict. A charge was framed but it was not
specially explained to the prisoner, and the jury wore sent back, and
after deliberation returned the same verdict as before. The Judge referred
under section 431 the questions wliether he had power to add the third
charge and whether the verdict returned on the third charge was a valid
one in presence of the fact that the prisoner was not specially arraigned
on it. The Bench by a majority hold that the Judge had no power to
alter the charge, and unanimously held that the verdict returned on the
third charge was valid. The last ground which the Bench gave for their
decision was that the first verdict might have been accepted under section
237 of the Code of Criminal Procedure although there was no charge, but
if that paragraph of the judgment had never been written the result would
have been the sam3. In tin cise stated it is recorded that after the Judge
had refused to receive the first verdic the said, *' it was necessary for him
to explain the law to the jury, and then he should ask them to consider
their verdict." Then follows the new charge. On this the learned Judges
observed: —

" It was further urged that the jury had returnetl their venlict when the new charge was
frameil, and that the learned Judi^c acted without juris'.Uction. We think howeyer that by
♦ verdict ' must be understood the final verdict which the Judge would be bound to recortl. No
such verdict had been returned when the Judge procoedal to fmme the new charge/'

This is an unmistakeablo pronouncement that the second verdict was
valid, and it follows that refusing to accept the first verdict and sending
back the jury was not an incurable illegality. The fact that the second
verdict was identical with the first makes no differnce. The jury might

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Vol. Ill] The Criminal Law Journal Reports. 13

HLA Gtl r. emperor.

havo made their second verdict " Not guilty " and if they had done so the
Judge would have been bound to accept it. Even in the last paragraph
of their judgment the Bench say that the fact that the Judge might have
accepted the first verdict did not aflFect the legality of the second verdict.
They never suggested that the sentence should be passed on the first verdict.
They found that the second verdict was valid and they directed that sentence
should be passed.

As both my learnd CDlleagues hold that there was illegality in dealing
With the verdict, and that the second verdict and the sentence must be set
aside, it is not necessary to express a definite opinion on the question whether,
if there had been no error of law except misdirection, our duty would
have been to examine the evidence and see whether there was sufficient
to support the verdict. I would only say that the New South Wales case
of Makin does not seem to bind us here. It was a decision on a case of
improper admission of evidence, which is not quite the same thing as
misdirection, and it decided a question of amendment of the common law
by statute. Here we are not concerned with the law of New South Wales.
In Suhrahmanh Ayyars case there was no question of either misdirection
or improper admission of evidence, and I do not think the remarks of
Their Lordships of the Privy Council can properly be held to prohibit
this Court from examining the evidence and deciding questions of fact in
case of misdirection only when the case conies before it under section 12 of
the Lower Burma Courts Act.

I agree that as a majority of this Bench finds that it was illegal to
•send back the jury instead of questioning them under section 303 of the
('ode of C^riminal Procedure, the conviction and sentence must be set aside,
.but the accused should not be acquitted. I think there is no doubt at all
.that we ought to direct a new trial if we have- authority to do so. The
question whether we can do so is a difficult one. No case has been found
in which an Indian High Court has made such an order under section
2G of the Letters Patent, but on the other hand no case has been found in
which it was said that such an order could not be passed. I cannot agree
with the learned Chief Judge that the case of Sahrahnania Ayijar is
one in which it would have been appropriate on the part of the Privy
Council to pass such an order. The offence was a far less serious one than
murder, the judgment of the Privy Council was delivered about 18 months
after the trial in the High Court, and there might bo many local facts
about which a Court sitting in England would know nothing, which
would make it inexpedient to order a new trial. A sufficient reason for
the High Court not passing such an order would be that they held that
the error was not an illegality, I have searched, and failed to find any

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case under section 26 of the Letters Patent, in which an order for a new
trial would seem to be appropriate.

If section 12 of the Lower Burma Courts Act stood alone it might
be thought that the words " may pass such judgment, order or sentence "
corresponding exactly to the preceding " may alter the judgment, order
or sentence passed by the judge " limited the orders which the Bench
could pass to orders of a nature akin to the order passed by the Judge ;
but this view must be modified by comparing section 12 with the two
enactments of earlier date, the Letters Patent section 26, and the Code of
Criminal Procedure section 434.

The Letters Patent empower the Court only to alter the sentence and
to pass judgment or sentence. Section 434 empowers the Court to alter
the sentence and pas3 such judgment or order as the Court thinks fit. I
think this gives the Court very wide powers and the word " order " is
clearly not limited by reference to any order passed by the (^ourt of original
jurisdiction. I cannot think that the powers of this Court under section
12 of the Lower Burma (courts Act are less than its powers under section
434 of the (bde of Criminal Proaedure. The addition of the words
" judgment, order or " in one place and of " sentence " in another place
cannot reasonably be held so to limit its meaning.

If we set aside the conviction and sentence and discharge the prisoner
the executive authorities cannot properly let the matter rest there. A
fresh prosecution must be instituted. It seems unreasonable that the
Magistrate should be required to record the evidence again and make a
fresh commitment.

Tlie learned Advocate for the petitioner expressly admitted that a
new trial could be ordered if there were no error except misdirection. If
that^ be so where an alternative course is possible, namely examining tlie
e\ndcnce and deciding on it, a fortiori it is possible when there is no alter-
native but discliargiiig the prisoner and leaving the executive authorities to
take further action if they think fit.

I would therefore order a new trial.

The final order in the case was as follows ;—

In accordance with the finding of the majority of the Full Bench, the
order is that the conviction and sentence bo set aside and that the accused
be released from custody.

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(3 L: B. R., 87.)
July 20th, [CRIMINAL REVISION No. 923 of 1905] 1905.

Present:— The Hoii'blo Mr. Harvey Adamson, C.S.I., Chief Judge,
Mr. Justice Fox and Mr. Justice Irwiit.


R'jttrlalof ac-H^i—eondetwn and gnttt^nce hj Judaeof Wgh Ca>mH fef tide by a Bench
^Cnmlnil Proeeduro Code, m. 403; 423, 434, 439, 273, 333—L'ncct Burma Cuurtt Act,
1000, », 12.

The accused was convictctl at a Criminai Sessions before a Judge of the Chief Court and
8cnteiicc<l to death. In a proceeding tukler section 12 of the I/jwcr Burma Courts Act, 1900,
the conviction and sentence were set aside by a'Bench on the ground that the verdict had not
been arrived at in due course of law ; but the accused was not aciuittctl The District Magis-
trate then took cognizance of the case against the accused and transferred it to a subonlinate
Magistrate for inquiry with a vie>y- to-the Tccommitiffcnt of the accused.

In an application, for revision on* behalf of the accused, it was argued that the District
Magistrate's onlcr was illegal, inasmuch a:^ the original . commitment was stiU valid and
subsisting, and the trial upon that comnritmciit hatl not been completal.

i/»W -after reference to sections 42^,^34', und 439 of the Code of Criminal Procedure,
and in view of the provisions of sections 403 read with 273 and 333, that the District
Magistrate's onler was legaL

Mr. Eddis — for the applicant*- Mf . McDonnell Assistant Government

This is an application to revise and sfet aside an order of the District
Magistrate, Rangoon, by which he ordered the arrest of the applicant
and his production before the Western Subdivisional Magistrate, with
the view to the latter proceeding under Chapter XVIII of the Code to
inquire into an offence of murder^ and to tlie applicant's committal on a
charge of such offence to this Court for trial.

The grounds on which the prosent^application is made are as follows ! —

(1) There is still a valid subsisting commitment of your petitioner
on the same charge, the trial under which is pending before
this Court and is still uncompleted.

(2) There is no provision trf the law by which two trials can
proceed simultaneously -against an accused on the same charge.

(3) Until the first commitment is set aside or the trial thereon
brought to a legal conclusion, no other Court has jurisdiction

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 26 of 91)