EMPEROR Vs. NAZAR MAHOMED

JUDGEMENT

(1.) By Section 2 of Act XI of 1846 it was enacted that the administration of criminal justice within the territory referred to by the Act should vest in the Agent to the Governor of Bombay and by Section 3 it was enacted that it should be competent to the Governor-in-Council to prescribe such rules as he might deem proper for the guidance of the Agent and to define the authority to be exercised by the Agent in criminal trials and what cases he should submit to the decision of the Sudder Foujdaree Adawlut. By Section 4 it was enacted that upon the receipt of any criminal trials referred by the Agent under the Rules which might thereafter be prescribed by the Governor-in-Council the Sudder Foujdaree Adawlut should proceed to pass a final judgment, or such other order as might after mature - consideration seem to the Court requisite and proper, in the same manner as if the trial had been sent up in ordinary course from a Sessions Judge. Under Section 3 of the Act the Governor of Bombay on the 17th of March 1854 prescribed certain rules for the civil and criminal administration in the villages of six Mewasi Chiefs mentioned in the Schedule to the Act of 1846. Chapter III of those Rules relates to the criminal administration. Rule 35 provides that the absolute jurisdiction of the Agent in criminal cases shall extend to fine and imprisonment for five years and sentences involving a punishment beyond that period, or of a greater severity, must be submitted for the confirmation of the Sudder Foujdaree Adawlut. Rule 37 provides that the Agent will obey all injunctions and orders of the Sudder Foujdaree Adawlut and Rule 43 that if the punishment deemed to be suitable by the Agent shall exceed his own absolute jurisdiction, he shall record the punishment he would award, but shall forward the case in original to the Sudder Foujdaree Adawlut, which Court shall proceed to take cognizance of the case and to pass such sentence or orders as they may think proper and the instructions conveyed to the Agent from the Superior Court would be carried into effect by him. Rule 44 provides that the Sudder Foujdaree Adawlut shall be empowered to call for the Agent s proceeding in any case, on petition being made to that Court by any party against whom a sentence may have been passed by the Agent and the Sudder Court may thereafter proceed according to the provisions of Section 4 of Act XI of 1846. Rules 43 and 44 are thus Rules which provide for cases in which the Agent shall, under the first Rule of his own motion and under the second Rule upon requisition by the Superior Court, submit the case for the decision of that Court. The power to call for and deal with a case given to the Superior Court implies a direction that the Agent shall refer in compliance with the requisition. Section 4 of the Act of 1846 lays down what shall be done by the Sudder Foujdaree Adawlut upon the receipt of any criminal trial referred by the Agent under the Rules. The Sudder Court may proceed to pass a final judgment or such other order as may seem to the Court requisite and proper. This procedure is imperative in relation to any case received from the Agent. Such cases may under the rules either be referred by the Agent of his own motion or on requisition by the Court empowered under the Rules to make such requisitions. The Rules framed by the Governor-in-Council must be read as a whole and although Rule 35 states that in a particular class of cases the Agent shall have absolute jurisdiction, that is not inconsistent with, but subject to, the provision in Rule 44 that the Sudder Court on petition by any party convicted by the Agent may call for the proceedings and pass a decision thereon. It is immaterial whether the power of the Superior Court is called appellate or revisional, the result is that that Court, now the High Court, may take cognizance of any case on the petition of a convicted party and if it thinks fit send for the proceedings and pass a fresh decision. In our opinion, therefore, Rule 44 is not ultra vires.

(2.) The case was then heard by Batchelor and Shah JJ. on the 4th April, 1917, when their Lordships delivered the following judgment.

(3.) We are satisfied that these convictions must be affirmed. They rest in the main upon the evidence of the injured man Ahmed, his mother Sultanbi and the witness Abdul. We see no reason to think, having regard to the circumstances of the case and the time which elapsed between the offence and the first description of it, that these witnesses invented any of the names of the accused.