Judgement

Appeal (No. 1 of 1924) under art. 41 of the Letters Patent of the High Court from a decision of a Full Bench (September 26, 1923) upon a question of law arising upon the trial of the appellant for murder, the said question having been certified by the Advocate-General, under art.26 of the Letters Patent, for the further consideration of the Court.

The appellant was tried before Page J. and a special jury at the Criminal Sessions of the High Court upon a charge of murder punishable under s. 302 of the Indian Penal Code. He was convicted, and upon August 17, 1923, sentence of death was passed upon him.

The evidence given at the hearing, so far as material, appears from the judgment of the Judicial Committee, and is shortly-stated in the headnote.

Upon the application of the appellant the Advocate-General granted a certificate under art. 26 of the Letters Patent that in his judgment " whether the alleged direction and the alleged omission to direct the jury do not in law amount to a misdirection should be further considered by the said High Court.” The certificate stated (inter alia) "It has been further represented to me that the learned judge charged the jury and in such charge, which was taken down in shorthand completely, said as follows Therefore in this case if these three persons went to that place with a common intention to rob the postmaster and, if necessary, to kill him and if death resulted, each of them is liable, whichever of the three fired the fatal shot. If you come to the conclusion that these three or four persons came in to the post office with that intention, to rob and if necessary to kill and death resulted from their act, if that be so, you are bound to find a verdict of guilty. I say if you doubt that it was the pistol of the accused which fired the fatal shot that does not matter. If you are satisfied on the other hand that the shot was fired by one of those persons in furtherance of the common intention, if that be so, then it is your duty to find a verdict of guilty. "

The case was argued before a bench consisting of Mookerjee, Richardson, Ghose, Cuming and Page JJ., who on September 26, 1923, delivered judgment and ordered "that the application made by the prisoner under cl. 26 of the Letters Patent do stand dismissed."

Mookerjee J., after a full examination and discussion of the authorities in India, also certain English and American decisions, said "the balance of reason and authority is, in my opinion, against the limited construction placed by Stephen J. on s. 34 of the Penal Code in Emperor v. Nirmal Kanta Roy (I. L. R. 41 C. 1072.), and I must hold accordingly that the first point specified in the certificate of the Advocate-General, namely, that a direction erroneous in law was given, cannot be sustained." The learned judge, upon an examination of the whole case, was of opinion also that the learned trial judge in charging the jury had made no omission amounting to misdirection.

The other learned judges delivered separate judgments arriving at the same conclusion.

The appellant preferred a petition to the High Court praying for a certificate that the case was a fit one for leave to appeal to His Majesty in Council against the above order of the Full Bench, also against his conviction and sentence by the Sessions Court.

The petition was heard by Mookerjee and Chatterjee JJ., who made an order declaring "that the case was a fit one for appeal to His Majesty in Council under cl. 41 of the Letters Patent of 1865." The learned judges in delivering judgment upon the petition referred to the divergence of judicial opinion in the Superior Courts in India as to the true interpretation of s. 34 of the Penal Code, and to the importance of that question in the administration of criminal law in India.

1924. July 25. De Gruyther K.C. and Wallach for the appellant.

Dunne K.C. and Kenworthy Brown for the Crown.

The arguments appear sufficiently from the judgment of the Judicial Committee.

Oct. 23. Th