JUDGMENT

Dalal, J C - Five men have separately appealed from their conviction by the special Sessions Judge of Lucknow of offences under Section 409 and under Section 120-B. for conspiracy to commit that offence. They were all convicted at the same trial. Embezzlement was committed of railway stores known as brass boring. When brass is worked in shops, pieces drop out which are of no use in the works and must be sold as metal. This waste brass was collected at a workshop known as shop No. 10 and sent to the stores for storage and subsequent sale. Hay was Assistant Controller of Stores. Maharaj Kishan was Depot Stores Keeper, Raj Narain was a Ward Keeper in charge of the metal Godown and Debi Dayal was Traffic Clerk whose duty was to send consignments from the railway stores to their destination. These are four of the appellants. The fifth appellant Chhedi Ram is one of the merchants who is stated to have given bribes. The other merchant in whose favour embezzlement was committed by the servants of the company was the approver Maiku Lal.

2. [The learned J.C. discussed questions of fact and evidence and proceeded:]

3. Embezzlement therefore and conspiracy for that purpose are proved.

4. The question for decision is, which of the appellants was a party to the conspiracy and the fraud. On behalf of one of the appellants who is a European British subject it was argued by Mr. Bahadurji that the trial by the Sessions Judge with the help of assessors was vitiated by the fact that proceedings were not taken under Chapter XXXIII of the Code of Criminal Procedure. The question here does not arise whether Hay was entitled or not to be tried under the special provisions of that Chapter. The procedure is laid down in Section 443 of the Code of Criminal Procedure. It must be adopted by a person who desires the benefit of the Special provisions. Where in the course of the trial, outside the Presidency-town, of any offence punishable with imprisonment the accused person, at any time before he is committed for trial under Section 213, claims that the case ought to be tried under the provisions of this Chapter, the Magistrate inquiring into 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 about certain matters, record a finding that the case is a case 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. If the application is rejected the person aggrieved may appeal to the Sessions Judge under Clause (2) of the same section and the decision of the Sessions Judge in the matter cannot be questioned in any Court in appeal or even in revision. The foundation must be laid by a claim that the case ought to be tried under the provisions of Chapter XXXIII. That foundation was never laid in this case. The application of F.S. Hay and J.A. Ireland (who was acquitted by the lower Court,) ran as follows:

(1) That the applicants are being tried under the above noted Sections (409, 109 and 120-B.I.P.C.) by the Hon'ble Court.

(2) That the applicants understand that the Hon'ble Court is going to commit the case to Court of Session.

(3) That the applicants are European British subjects and claim to be tried as such according to the provisions of the Code of Criminal Procedure.

5. It will be noticed that no mention is made of the provisions of Chapter XXXIII. The mere fact of a person being a European British subject does not entitle him to the benefit of Chapter XXXIII, which is devised for the benefit both of a European British subject and an Indian British subject. An Indian British subject has certain privileges just as a European British subject has under that Chapter. The distinctive rights of a European British subject are detailed in Chapter XL1V-A, which also deals with the distinctive rights of an Indian British subject. The de