I G SINGLETON Vs. EMPEROR

JUDGEMENT

(1.) The appellant I.G. Singleton has been convicted by the Sessions Judge of 24-Parganas in agreement with the unanimous verdict of the jury on charges under Section 409 and 409/120- B of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 9 months under Section 409, I.P.C., no separate sentence having been passed under Section 409/120-B, I.P.C.

(2.) The facts of the case alleged against him on behalf of the prosecution are set out in sufficient details in the summing up of the learned Judge and it will serve no useful purpose by recapitulating them here. The charge under Section 409, I.P.C. alleged that on the 27th February, 1924, the appellant being a public servant in the employ of the Customs Department committed criminal broach of trust in respect of 34 bags of peacock feathers over which he had dominion as such public; servant. The charge under Section 409/120-B, I.P.C., averred that on the same data he conspired with one Basanta Singh to commit the aforesaid offence of criminal breach of trust.

(3.) The appellant claimed a right of appeal on matters of fact as well as on matters of law under the provisions of Section 449 (1), Criminal P.C. That claim was opposed on behalf of the Crown. It appears that on appearing before the Magistrate who held the enquiry preliminary to commitment the appellant asserted his right to be tried as a European British subject, and upon that the Magistrate evidently being satisfied that he was one, passed an order that he was to be dealt with under Section 443, Criminal P.C. It is not clear whether this claim on the part of the appellant included a claim to be tried according to the provisions of Chap. 33 of the Code, but there is a clear mention of Section 443, Criminal P.C., in the order which the learned Magistrate passed on the occasion. On behalf of the appellant it has been contended that the appellant was entitled to be tried under the procedure laid down in Chap. 33 as the information upon which the case against him originated was laid by Sub-Inspector A.T. Haider who presumably is a British Indian subject and that, therefore, the case came within Section 443 (1) (a), Criminal P.C. In this connection some reference was also made to the fact that the appellant was committed to the Court of Sessions along with one Basanta Singh and it was urged that that would bring the case within Section 443 (1) (6), Criminal P.C. On behalf of the Crown it was pointed out that the fact that Sub-Inspector A.T. Haider was the informant would not, by reason of the proviso to Section 444, Criminal P.C., help the appellant nor the fact that Basanta Singh was a co-accused with him in the indictment under which the commitment had been made. While I entirely agree with the contention put forward on behalf of the Crown in this respect and while also I am disposed to think that the distinction between a claim to be tried as a European British subject and a claim to be dealt with under the provisions of Chap. 33 was not properly appreciated by the enquiring Magistrate, and that there is hardly any foundation for the appellant's claim to be tried under the provisions of Chap. 33, I find it difficult to hold that that right can at this stage be disputed by the Crown, in the face of the clear order which the learned Magistrate recorded in the order sheet and which I have already alluded to. It is true that in the order of commitment itself the learned Magistrate only referred to the fact that the appellant had claim-ed to be triad as a European British subject and also to the seriousness of the offence as justifying the course he was adopting, but in my opinion it is not safe to draw from this the conclusion, that it was aver intended that the appellant was not to get the benefit of the order which the Magistrate had already passed in his favour. The Crown did not take any steps to get the order sot aside or corrected. I hold, therefore, that the appellant's appeal lies and must be dealt with on matters of facts and matters of law, as contemplated by Section 449(1), Criminal P.C.