Judgement

Appeal (No. 17 of 1935) by special leave from part of an order of the Court of the Judicial Commissioner of Sind (July 25, 1934) transferring the re-trial of the appellant from the said Court to the Court of Sessions, Hyderabad.

The facts appear from the judgment of the Judicial Committee.

1935. April 11, 12. Parikh for the appellant.

Dunne K.C. and Wallach for the respondent.

April 12. The judgment of their Lordships was delivered by

LORD ATKIN. This is an appeal in a criminal case which has undergone some vicissitudes in the

Courts in India.

The appellant, with six other persons, was tried at Karachi and was convicted of murder. The accused were tried before the Additional Judicial Commissioner of Sind, Mr. Dadiba Mehta and a special jury of nine jurors. After a trial lasting five weeks six of the accused were convicted on different parts of the charges, and sentenced. The seventh was acquitted. The convicted men then appealed to the Court of the Judicial Commissioner and the appellant appeals by special leave to His Majesty in Council. On this appeal questions have arisen, which, in their Lordships opinion, it is not necessary finally to settle, as to the precise position of the Court of the Judicial Commissioner of Sind in its criminal jurisdiction and in respect of its appellate jurisdiction.

The material sections are the sections of the Bombay Act No. 12 of 1866 as amended, which provides, by s. 1 " There shall be for the Province of Sind a Court of the Judicial Commissioner of Sind which shall be the highest Court of appeal in civil and criminal matters in the said province, and which shall be the District Court and Court of Session of Karachi. The Court of the Judicial Commissioner shall consist of three or more Judges, one of whom shall be the Judicial Commissioner of Sind and the others Additional Commissioners.”

By an amending section it was provided "The Judicial Commissioner and Additional Judicial Commissioners shall be appointed by the local government, by whom alone they shall be liable to be suspended or removed. They shall, within the District and Sessions Division of Karachi, each of them exercise all the jurisdiction and have all the powers of a Judge of a District Court and of a Sessions Judge."

The appeal was brought to the Court of the Judicial Commissioner, and was quite plainly brought, and accepted by the Court as being brought, under s. 410 Criminal Procedure Code, which provides " Any person convicted on a trial by a Sessions Judge or an Additional Sessions Judge, may appeal to the High Court." The appeal was heard before the Judicial Commissioner and one of the Additional Judicial Commissioners. Unfortunately they differed, the Judicial Commissioner being in favour of dismissing the appeal and the Additional Judicial Commissioner being in favour of allowing the appeal.

Under the powers of s. 9 (c) of the Bombay Act the matter was referred by the Judicial Commissioner, as the judges differed, to a third judge, and it is provided that the matter shall be decided according to his opinion or reheard by a bench consisting of three judges and decided according to the opinion of the majority of such judges.

The learned Additional Judicial Commissioner, Mr. OSullivan, to whom the case was referred, came to the conclusion that the trial had been unsatisfactory, that there was a point of law upon which the appellants were entitled to rely as to certain evidence which it is unnecessary now to deal with, and he thereupon came to the conclusion, first of all, that the conviction must be set aside. Then he had the duty to determine what should be done. His powers in that respect were powers under s. 423 of the Code. What he had power to do on an appeal from a conviction was to " reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court," or " alter the finding," and so forth. What he did was this