The Queen, on the Pr... v. Eduljee Byramjee and...

No Judgineiit was delivered on this Petition, but the report of their Lordships,

which was confirmed by Her Xajesty in Council, was as follows :-

“The Lords of the Comni i t t~ , in obedience to Your Majesty’s said order of

refemwe. h a w taken the said Petition into consideration, and have heard Counsel

on behalf of the said Petitioners, and have likevise heard Your Majesty’s Attorney

and Solicit~r-General on behalf of Pour Majesty’s Crown, and their Lordships,

u ~ ~ d e r s t a n d ~ n g it to be Tour Majesty’s pleasure, that their ~ r d s h ~ p s ’ considerat~on

01 the niatters referred to them, by Your Xajesty’s said order of reference, sliould

be confined to the question, whether the inhabitants of Cape Breton are by law en-

titled to the constitution, purporting tu be granted to them by the Letters Patent

of 1784, mcntioned in the said Petition, do agree humbly to report their opinion to

Four Majesty, that the ~ n ~ i a b ~ t a n t s of Cape Breton are not so entitled.”

fNews’ Dig. tit. COLONP ; 11. PARTICULAR COLONIES j 4. Britidz. f fnr t f i America.

S.C. 6 St. Tr. (X.S.) 283, where the arguments are fully set out (293-303). Wit11

regard to the prerogative of the Crown as to the transfer on cession of territory,

see ~ ~ ~ n ~ ~ ~ ~ r or^^^^ v. Beoram &-a?+* 1815, 1 A.C. 332 ; L.R. 3 lnd. App.

102; Aans. Pad. Deb., vol. 347, p. 764 (debate on the A n g I o - ~ ~ e r ~ ~ r ~ Agree-

mer& Bill-aftervards 53 and 54 Vict. e. 32-confirming the cession of Eeligo-

land), and cf . the Turks and Gaicos Island Act, 18’73 (36 and 37 Vict. c. 6).]

[2761/ ON PETITlON FROM TZE S ~ ~ ’ ~ ~ ~ ~ ~ COVRT O F JUDICATURE

AT BOMBAY.

The QUEEN, on the Prosecution of the BOMBAY G O ~ ~ E R ~ ~ ~ ~ ~ ~ , against

EDTTWEE B‘YIZAMJEE and Sevenken Others” [April 2 and 8, 18461.

The Bombay Charter of the 8th Dee. 1823 ( g r a i ~ ~ e d in pursuance of the powers

conferred tu the Crown, by 4 Gw. IT., c. 7f), after proi-iding “ That in all

indictinents, informations, and criniinal suits and causes \vhatsoever, the

said Supreme Court of Judicature a t Bombay shall have the full and absolute

power and a i~ th~Ti ty o allow or deny the Appeal of the party ret tend in^ to

be aggrieved,” proceeds thus----“ And we do hereby also reserve to ourself,

our heirs, and successors, in our or their Privy Council, full power and

authority, upon the humble petition of any person o r persons aggrieved by

a Judgment o r determination of the Supreme Court of Judicature, a t Born-

bay, to refuse or admit his, her or their Appeal thereupon, upon such ternis

and under such l i ~ i ~ a t i o n s , restrictions, and regulations, as we or they shall

think fit, and to reform, correct, o r vary, such Judgment o r d e ~ ~ “ m i ~ ~ a t ~ o n

as to us or them shall seem meet.”

Upon a petition, praying for leave to Apped from a conviction for felony : held

by the Judicial Coniniitt~e of the Privy Council, that there vas no power re-

served t o the Crooln by the Charter, t~ allow Appeals in c r ~ m ~ n a ~ cases, such

Appeal being confined to civil cases only.

Reld also, that the Charter having been granted by the Crown by force of a n

Act of Parliament, must be construed with reference to the, powers conferred

by the Act, even though the prcmgative of the Crown were limited by such

construction : and that the Supreme Court alone has full and absolute power

to allow or deny permission to appeal in criminal cases.

No Appeal lies, in cases of felony, to the Queen in Council, from any

of the Gominions of the Crown of Great Britain, which are governed by the

law of England.

Semble.

* Prese&--Menlsers of the Judicial Committee : The Lord President (the Duke

of Buccleuch), the Trice-Chancellor Wigrain, the Right Eon. Dr. Lushinghon, and the

Right Bon. T. Femberton Leigh. P r i y Councinors-Assessors: Sir E. 13. East,

Bart., Sir A. Johnston. and Sir E. Ryan.

496

REG. v. EDULJEE BYRAMJEE [1846] V MOORE, 271

The first was the Petition of Eduljee

Byramjee, a tenbmaker, late of Bombay, but now a prisoner a t Singapore, under-

going sentence of transportation, presented [277] 011 behalf of himself and eight

Parsees, also undergoing sentence of transportation at Singapore, and praying that

Her Majesty would be graciously pleased to direct the issue of a free pardon to the

Petitioner, and the other convicted parties, or that Her Majesty would be pleased to

refer the matter of the Petition, and the case of the Petitioner, with the circumstances

of the trial, to the consideration of the Judicial Committee of Her Majesty’s Privy

Council, t o report thereon, o r that Her Majesty would be pleased, by and with the

advice of Her Privy Council, to make such order for the admission and prosecution

of an Appeal from the Judgment of the Supreme Court; and that Her Majesty

would in like manner be pleased to make an order for the production of true and

exact copies of all evidence, proceedings, judgments, decrees, and orders, had or

made in the prosecution in the Supreme Court, and of the Judges’ notes of the

evidence taken before the Court, and of the reasons given by the Judges of the

Court, and also the evidence taken before the Chief Magistrate of Bombay, by the

direction of the Chief Justice of the Supreme Court, and all papers in the possession

of the Right Honourable the Earl of Ripon (the then President of the Board of

Control), and the Secretary of State, relating to the t r ia l and the case of the Peti-

tioner, and fo r the taking any necessary evidence; and that Her Majesty would be

pleased to reform, correct, or vary such Judgment, [27$] and make such former or

other order in the forms, as to Her Majesty might seem meet.

The Petition set forth, that an indictment was preferred in the Supreme Court

of Judicature a t Bombay, in the second sessions of the year 1844, against the Peti-

tioner and seventeen other persons, Parsees, for the murder of a Parsee, named Mun-

cherjee Hormusjee. That the Petitioner and sixteen others were charged as acces-

sories to the murder. That the trial took place o n the 17th July 1844, and lasted

ten days, before Sir Henry Roper, Chief Justice, and Sir E. Perry, Puisne Judge,

and a jury of Europeans, when the jury returned a verdict of guilty against ten,

including the Petitioner, and acquitted the remainder of the parties charged. That

the Petitioners presented a Petition to the Judges of the Supreme Court, for leave

to Appeal to Her Majesty in Council, against the direction of the Chief Justice, and

the verdict and conviction founded thereon, upon the grounds and under the cir-

cumstances therein specially set forth. That such Petition was not conzplied with

by the Judges, but that the extreme penalty of the law was carried into effect against

one of the parties charged, and the remainder were sentenced to be transported

for life to Singapore.

The principal allegations contained in this Petition were verified by affidavit.

The second Petition was presented on the part of upwards of six thousand in-

habitants of Bombay, and after setting forth, in substance, the circumstances con-

tained in the first-named Petition, prayed that Her Majesty would be pleased to

exercise her prerogative of mercy, in favour of such of the convicts as she might

deem entitled t o remission of their sentences, and to grant them pardon.

[279] Both Petitions were referred by the Crown to1 the Judicial Committee of

Her Majesty’s Privy Council, and now came on for hearing.

Mr. Hill, Q.C., and Sir John Bayley, in support of the first Petition.-The jurisdic-

tion of Her Majesty in Council, to entertain Appeals in criminal suits in India, is

undoubted. Aga

iklahomed Kurboolie v. T h e Queen (4 Moore’s P.C. Cases, 239). Both these cases were

upon indictment.-[Sir E. Ryan : These are cases in which the Appeal was allowed

by the Court below, which differs from the present application.]-The Charter of

Justice of Bombay ( e ) , gives a right of Appeal, in all indictments, informations, and

There were two Petitions in this matter.

Pooneekooty MoodeZiar v. T h e King (3 Knapp’s P.C. Cases, 384).

( c ) The following are the clauses relating to the Criminal Jurisdiction, and the

right of Appeal to the Queen in Council, as contained in the Charter, or Letters

Patent, of the 8th December 1823, for establishing the Supreme Court of Judicature

a t Bombay.

“ And it is our further will and pleasure, and we do hereby grant, order, ordain,

and appoint, that the said Supreme Court of Judicature, a t Bombay, shall also be a

Court of Oyer and Terminer, and Gaol delivery, in and f o r the town and island of

497

V MOORE, 280 REG. v. EDULJEE BYRAMJEE [1846]

criminal suits, and expressly reserves to the Crown, the power t o refuse or admit a n

Appeal, from any Judgment or [280] determination of the Supreme Court, upon such

restrictions and regulations, a s the Crown shall think fit [281] to impose. The

Statute 7th and 8th Vict., e. 69, also provides f o r the admission of Appeals from any

judg-[282]-ments, sentences, decrees, or orders, of any Court of Justice, within any

British colony or possession abroad, although such Court should not be a Court

of Error, or a Court of Appeal, within such colony or possession. It is true that

the Bombay Charter gives the Supreme Court the power to allow or deny Appeals,

but the Crown has expressly reserved to itself the power to refuse or admit an Appeal,

even though denied by the Supreme Court. It never could be meant, that the

Supreme Court should have the power of saying, peremptorily, that its decisions,

in criminal matters, should not be reversed, which it would in effect do, by refusing

leave to Appeal. Such Appeal is an incident to the powers of this Court, which stands

in relation to Colonial Courts, as the Queen’s Bench does to the inferior Courts in

this country. In R e Ames (3 Moore’s P.C. Cases, 409), leave was granted here to

appeal from a criminal proceeding in Jersey, which being found to be contrary

t o an express Ordinance, in force1 in Jersey, [283] such leave was afterwards

rescinded. Mr. Baron Parke, in delivering judgment, says, “ W e are not disposed

to say, tha t we have not the power so t o have done; as Her Majesty is the1 head of

justice, and we are sitting here, not merely as a judicial body, but as Privy Coun-

Bombay, and the limits thereof, and the factories subordinate thereto: and shall

have and be invested with the like power and authority, as Commissioners, or

Justices of Oyer and Terminer, and Gaol delivery, have, or may exercise, in that

part of Great Britain called England, to enquire, by the oaths of good and sufficient

inen, of all treasons, murders, and other felonies, forgeries, perjuries, trespasses,

: a d other crimes and misdemeanours heretofore had, made, done. or coixunitted, or

which shall hereafter be had, done, or committed, within the said town and island

of Bombay, or the limits thereof, or the factories subordinate thereto.” [The Charter

then proceeds to give authority to the Court to issue a precept t o the sheriff to

sumiiion juries and witnesses, with power to pnnish for contempt, etc.] ‘‘ And to

proceed to hear, examine, try, and determine the said indictments and offences,

and to give judgments thereupon, and to award execution thereof. And in all

respects to administer criminal justice in such or the like manner and form, o r as

nearly as the condition and circunistances of the place and the persons will adiiiit

of, or as our Courts of Oyer and Terminer and Gaol delivery do or may in that part

of Great Britain called England, due attention being had to the religion, manners,

and usages of the native inhabitants.

‘‘ And whereas cases may arise, wherein it may be proper to remit the general

severity of the law, we do hereby authorize and empower the said Court of Oyer

and Terminer and Gaol delivery to reprieve and suspend the execution of any capital

sentence wherein there shall appear, in the judgment of the said Court, a proper

occasion for mercy, until our pleasure shall be known. And the said Court shall,

in such case, transmit to us, under the seal of the said Court, a state of the case,

and of the evidence, and of the reasons for recommending the criminal to our mercy,

or for such reprieve or suspension, as the case may be: in the mean time, the said

Court shall cause such offender to be kept in strict custody, or deliver him or her

out to sufficient bail or mainprise, as the circumstances shall seem to require.

‘‘ And it is our further will and pleasure, and we do hereby direct, establish, and

ordain, tha t if any person or persons shall find him, her, or themselves aggrieved,

by any Judgment or determination of the said Supreme Court of Judicature a t

Bombay, in any case whatsoever, it shall and may be lawful for him, her or them to

Appeal to us, our heirs o r successors, in our or their Privy Council, in such manner,

and under such restrictions aiid qualifications as are hereinafter mentioned, that is

t o say, in all Judgments o r determinations made by the said Supreme Court of

Judicature a t Bombay, in any civil cause, the party or parties against whom, or

t o whose immediate prejudice, the said Judgment or determination shall be or tend,

iiiay by his o r their humble petition, t o be preferred f o r that purpose, to the said

Court, pray leave to Appeal to us, our heirs or successors, in our or their Privy

Council, stating in such petition the cause or causes of Appeal. And in case such

leave to Appeal shall be prayed by the party or parties who is or are directed to

498

.

REG. 21. EDUI,JEE Y;YRA%IJEE r1846-j V MOQF&E, 284

cillors, and the matter of the former Petition was referred to us

generally,” So, here the matter is referred generally. - [The Right Eon.

T. Pemberton Leigh: Is this merely a Petition for leave to Appeal?]---The

Attorney-~eneral: More than that is prayed for : the exercise of th0 Royal mercy ;

but your Lordships cannot advise on that part. of the Petition. It could never

have been intended to refer to your Lordships, sitting as the Judicial Committee

of the Privy Council, an application to Her Majesty, to grant a free pardon.-[The

Right Hon. T. Peniberton Leigh: In the Petition of the Bailiff and Royal

Court of Guernsey (nmte, [ 5 Moo. P.C.] 491, referred by the Crown, to the Committee

for the affairs of Jersey, the reference pias larger than was intended, but we re

ported oiily upon the law of the case, namely, the legality of the acts done.]-Mr.

Bill: Enough appears on the face of the Petition, to authorize your Lordships to

report to the Crown generally.--[Dr. Lushington : Their Lordships a re of opinion,

that it vas not intended by the reference, to refer to them any question, whether

mercy should be extended by the Crown to the Petitioners; you will, therefore, confine

yourself to two questions: first, whether there i s any power in the Judicial Com-

mittee, Lo advise Rer Majesty to permit, an Appeal; and, secondly, if they have such

power, whether they mould exercise a proper discretion, in so ad.irising.]-Mr. Eill :

This is a Charter granted by the Crown, by virtue of [a%] the Statute 4 Geo. IV.,

pay any SUM of money, or to perform any duty, the said Court shall, and is hereby

enipowered to award, that such determination or Judgment shall be carried into

execution, or that sufficient security shall be given for the performance of the said

Judgment or ~e te r rn i i ia t io~~ as shall be most expedient to real and substantial justice.

(‘ Provided always, that where the said Court shall tkinlr fit to order the Judg-

ment or determination to be executed, security shall be taken from the other party

or parties for the due performance of such Judgment, or Order, as we, our heirs o r

succeswors, shall think fit to make thereupon. And in all cases we will, and require,

that security shall also be given to the satisfaction of the said Court for the payment

of all such costs as the said Supreme Court of Judicature. at Bombay, may think

likely to be incurred by the said Appeal, and also for the performanee of such Judg-

ment. or Order as me, our heirs. or successors, shall t*hink fit to give or make there-

upon ; and u p m such order or orders of the said Court thereupou made being per-

formed to their salisfaetion, the said Court shall allow the Appeal, and the party or

parties, so thinking him, her or themselves aggrieved, shall be a t liberty to prefer

and prosecute his, her or their Appeal to us, our heirs or successors, ill our or their

Privy Council, in such manner and form, and under such rules, as are observed in

Appeals made to us from our plantations or Colonies, or from our Islands of

~i iernsey, Jersey, Sark or Alderney.

‘‘ And it is our further wilI and pleasure, a i d we do hereby direct and ordain,

that in all such cases the said Supreme Court o f Judicature, at Bombay, shall certify

and transniit, under the Seal of the sard Court, to us, our heirs or successors, in our

o r their Pr iT Council, n true and exact copy of all evidence, pro~eedii~gs, judg-

ments, decrees, and orders, had or made in such causes appealed, as f a r as the same

h a w relation to the matter of Appeal.

r‘ And it is our further will and pleasure, that in all indict*ments, informations,

and criminal suits and causes whatsoever, the said Supreme Court of Judicature,

a t Bombay, shall have the full and absolute power and authority to allow or deny

the Appeal of the party pretending t o be aggrieved, and also to award, order, and

regulate the terms upon which Appeals shall be allowed in such cases in wliieh the

said Court may think fit to allow such Appeal.

(‘ And me do hereby also reserve t o ourself, our heirs and successors, in OUT or

their Privy Cauneil, full power and authority, upon the humble petition of any

person or persons aggrieved by a Judgment or determination of the Supreme Courk

of Judicature, a t Bombay, to refuse or admit his, her or their Appeal. thereupon,

upon such ternis, and under such limitations, restrictions, and regulations, as %-e

or they slzafl think fit, and to reform, correct, or vary such Judgment or ~ e t e r n i i n a ~

tion, as to us or them shall seem meet.” [See now letters patent of 28th December,

1865, establishing the Eigh Court of Bombay, Art. 41 (Stat. R. and 0. Re.i. iv.

p. l lg) . ]

499

__. _lll _________ _ _ - - - _-

V WrOOEE, 286 REG, v. EDCILJEE BVRAMJEE [31846]

e, 71 j and even if there were no reservation in the Charter to admit Appeals, not

otherwise provided for, the power of the Crown to admit Appeals would not have

been parted wi th ; for the Crown has no power to denude itself of any prerogai.ive

necessary to the adminiskration of justice. It has no more riglit to weaken its power

to give protection to the subject, than the subject has to diminish or qualify his

allegiance. The rights of tJ10 sovereign and the rights of the subject aro strictly

correlative. Nothing appears in the Charter to warrant a conclusion that an

Appeal cannot lie here, in a criminal proceeding. The Crown can o d y be bound by

express words. If a question is reserved by a Judge, upon the t r ia l of a prisoner,

for the opinion of the fifteen Judges, they advise the Crown, in their discretion,

to grant a free pardon. Their powers are limited, as in this Court, to advise the

Crown. Then why should not this Court advise a free pardon? Enougti appears from

the Petition to justify such an exercise of t?ie prerogative.-[The Right Ron. T.

Peiaberton Leigh : Is there any instance in which we have dealt with evidencc settled

by the verdict of a jury, and considered whether it was well founded or notPf-The

Court sat as a jury in Cowm-jee v, ~ ? ~ o ~ ~ ~ o ~ (arste, [S Xoo. P.C.1 f65), and Cowie

v. Remfry (mtte, 15 Xoo. P.C.] 232); and in Gahmiz v. Lafitte (3 Moore’s P.C. Cases>

352 ; and see Le Brefojz Y. E?mis, 4 Moore’s P.C. Cases, 323), though the verdict was

sustained. yet the damages were cut down ; this Court thereby exercising the highest

discretion.+Dr. Lusliington : Eas any instance oceurred where an Appeal has beerr

granted by the Courts in India, in the case of a felony‘?l]--;?ione. The only criminal

cases appealed [285] from India were Boon~ekooty ~ o o ~ e ~ ~ r v. The Kltng [3 Itnapp,

3841 and Aga I ~ a ~ ~ o ~ e ~ garboot& T’, The Qzteefz [4 Moo. P.C. 2391, which were

indictments for inisdemeanours,

The A t t ~ r n e y - ~ e n e r a l (Sir F. Thesiger,) and Mr. %‘igrani, Q.C., for the Crown,

and the Ea& India Compang..-It is contrary to the policy of the Criminal Law in

England, t o allow an Appeal in cases of felony, and nothing can be found in the

Charter of Bombay vhich gives such power. No mention is made of criminal sui&

or information, in the reservation to the Crown, to refuse o r admit an Appeal. If

a party here is improperly convicted, the only redress that can be had, is by

application to the Crown for a pardon. Evexi with regard to a question of law, that

may arise upon the trial, the prisoner has no right of appealing to the fifteen Judges ;

it can only be dons by the Judge, who presides a t the trial, reserving the point. If

then there exists no right of Appeal in criminal cases in. England, it must follow, that

none i s given by $his Charter to Bombay, where the English law preTTails. The

ease of Be Arizes [3 Moo. P.C. 4091, establishes, that no Appeal lies from a criminal

proceeding in Jersey. Poo?t,eekooty ~ ~ 0 0 ~ ~ ~ ~ ~ ~ Y. ZTlte X k g [3 Knapp, 3541 was

an indictment for forgery, which vas a misdemeanour by Statute, in India; and

in Aga ~ ~ a ~ o ? ~ e ~ Kurbool~ v. The Queen [4 Moo. P.C. 2391, the Appeal here was

strictly confined to a question of lam. In each of these cases., the Suprenie Court

had granted, under the Charter, leave to Appeal; here they refused it, and t l~e i r

refusal is, by the terms of the Charter, a b d u t e . X t would be most mischievous to

grant this application, the object being to Appeal from a conviction fDr felony.

12861 The Right Bon. Dr. Lushington (June 26, 1847).-In the mon& of A ~ g u s t ,

in the year 1844, eighteen natives of Bombay were tried before the Chief Justice,

assisted by a Puisne Judge. One of the prisoners, Burjorjee Jamsetjee, was charged

with the wilful murder of a Parsee, named Muncherjee Rorniusjee. He was found

guilty, and execufxd. The seventeen other prisoners were charged as accessories

t o the murder, and were convicted and transported.

Two Petitions, one signed by one of the individuals convicted, and another

respectably and numerousIy signed by certain inhabitants of Bombay, were pre-

sented t o Ner Majesty. Those Petitions set forth, at. great length, the circumstances

attendant upon the trial, and prayed for the exercise of Her Majesty’s prerogative

in favour of the oonvicts, or that an Appeal might be allowed. Her Majesty has

been pleased to refer the Petitions, above mentioned, to us, not for the pnipose of

advising a@ to the exercise of Her prerogative of mercy, but as containing, together

with the afEdavits in support of them, a full statement of all t13e facts, and for tlte

purpose of enabling us to advise, whether the persons convicted can be pel-mitied to

500

REG. ?I. ~ R U L J ~ ~ B ~ ~ ~ ~ J ~ E E18461 V BOORE, 287

Appeal, under the circumstances, set forth in those atfidavits and those Petisions,

from the sentence of the Court.

Those Petitions did not allege that any error appeared on the face of the record,

but they complained of the direction of thei Judge? the evidence, and the verdict.

Now if this question were to be decided by the law of England, it is notorious,

that, no prisoner convicted of felony could claim a new trial, or a right of Appeal,

in this sense. A writ of error i s another question, E2871 which it is no& necessary

for us to discuss in this case. The usual practice, where the Judgment is not post-

poned, is, if any objection be tdcerr a t the trial, which the Judge pirho tries the

prisoners does nat admit io be valid, but deems worthy of consideration, to reserve

it for the opinion of the fifteen Judges. If the majority think the objmtioa ought

to have been sustained, the Judge who tried the prisoner, reports to the Secretary

of State, and the pre~"ogat~~7e of the Crown is exercised in such a max~ner as the

advisers of the Grown think meet. The prisoner has no legal right, in the proper

sense of the term, to demand a re-consideration by a Court of Law, of the verdict,

or of any legal objection raised at the trial. Then i f this be so by the laiv of

England, if the tr ial bad taken place bere. the question to be considered is, whether

the prisoners, being natives of Bombay, and British subjects, and the offence being

committed and tried there, have, by the law prevailing a t Bombay, any other, and

w h a t right.

It appears from the Charter of Bombay, which was granted under the authority

of an Act of Parliament, that the Supreme Court was constituted a Court of Oyer

and ~ e r m ~ n e r , and Gaol delivery, to a d m ~ n i ~ e r C iminal Justice in such, or the

like manner, or form, or as nearly as the condition a i l d circumstai~ces of the place

and person will admit, as our Courts of Oyer and Terminer, and Gaol delivery, may

or do in England, due attention beiiig had tdo the religion, manners, and usages of

the native inha~~tazi ts . So far it would swm, that the same law would bo a p p ~ i c a b l ~

to c o n ~ ~ c t i o n s for felonies, whether tried in ~ n g l a n d or Bombay, and conseque~tly

the Petitioners would have no legal right to an Appeal or rehearing.

I n the charter, however, will be found several iin-[288]-portant clauses touching

Appeals, which require great attention, and more especially that clause which

relates par t icu~arly to criminal cases. It is in the words following: "And it is

our further will and pleasure, that irr all indictments, informations and criminal

suits and causes whatsoever, the said Supreme Couri, of Judicature a t Bornbay shall

have full and absolute power and authority, to allow or deny the Appeal of n party

pretending to be aggrieved, and also t o award, order and regulate the terms upon.

which the Appeal shall be allowed, in sucfi cases in which the said Court may think

fit to allow such Appeal." Now, however exLensive the right of Appeal in criminal

cases may be$ the Supreme Court has full and absolute power aiid authority to

allow or deny that Appeal. Presuming, therefore, for the present, that the words

of this clause would sanction the granting of an Appeal of whatsoever kind, in cases

of felony, a ~ p l i c a t ~ o n for leave to Appeal was niade to the Suprenie Court, and was

by that Court refused. If an appeal then can now be granted, it must be on other

grounds thm the clause in the Charter ; for according to the clause already cited,

the rejection of the application to Appeal in the Supreme court must be considered

final.

This brings us tso the Consideration of the clause which immediately follows,

and which is in the following terms : And we do hereby also reserve t o ourselves,

our heirs and successors, in our or their Prii-y Council, full power and authority,

upon the humble petition of any person or persons aggrieved by the Judgment or

d e t e r ~ ~ ~ a t ~ o n of the Supreme Court of Jud~cature a t Bonibay, to refuse or admit

his, her or their Appeal thereupon, upon such terms and under such l i ~ ~ i t a t ~ o n s ,

restrictions, and regulations, as %-e or [289J they shall think fit, and tai reform,

correct or vary such Judgment o r determination, as to us o r them shall seem meet."

The first question which arises upoil this clause is one of c o ~ s i d ~ r a ~ l e i ~ p o r t ~

same; and i t is this, whether it applies a t all tu tile preeeding clause, or, in other

words, whether the Crown has reserved to itself, by force of the latter clause, the

right of Appeal in criminal cases, including, of course, felonies-far there is no

express limitation. Of the power of the Crown "co create or reserve such right there

can be no doubt, because the Act of Parliainent enables the Crown to grant such a

501

V ~ O O ~ E , 290 REG. 2r. EDULJEE B Y ~ ~ ~ ~ J ~ ~ [1846]

Charter, for the administration of justice in Bombay, as it may think fit. But in

considering Tobether the Grown has done so or not, it i s not unimportant $0 re-

member, that not only in England, but t l i ~ o u ~ h o u t the dominions of the Cxonn of

Great Britain, governed by the law of England, no right of Appeal in felonies has

ever existed. Kor are we aware that in any one single instance the Crown has ever,

by the exercise of its prerogative, granted leave to Appeal in any such case.

Under such c i r cu~ns ta~~cc~ , we think that it i s nQt probable that the Crown, in

granting this Charter, intended to make so extraordinary a deviation from the

oidinary practice, and we are the more strongly inclined to this opinion from 8

consideration of the consequences which must incvitably follow. Where persons

charged with the commission of felonies have been convicted, it is natural that they

should resort to every possible means to escape from the penalty of the law, or to

put off to the latest moment, the execution of the sentence. Conse~uently, it is to be

expected, that appl~cations in almost every case for [ZQO] leave to Appeal, (suppos-

ing by Appeal is meant a new trial, o r an eiitire rehearing,) would be made to the

Supreme Court. As that Court is sitting upon the spot, no great delay or mischief

niight follow from the postpo~~e~nent of the execution of the sentence, till that ap-

plication was heard and disposed of. But if the Crown has really, by this Charter,

reserved to itself the right of granting an Appeal in such cases, what are the in-

evitable consequences? To cause execution to be done, would be, in effect, to pre-

vent the right of granting an Appeal vested in the Crown, and to take away from

the prisoner convicted, the right of laying his case before his Sowreign, and of

obtaining a re-consideration of it. For it must be remembered, that if a re-

consideration, by way of Appeal, be reserved to the Crown, the right of applying

for it must be reserved also. But if this were really the state of the law, we doubt

whether any Court, or uny authority, would think itself justified in ordering execu-

tion to be done, till there had been an opportunity given to the prisoner, of apply-

ing to the Crown, for a re-consideration of the case, according to the right reserved

to the Cro-wn, and the prisones. Xany very evil conse~ueiices must necessarily

follow from this state of things. A long period must elapse b2fore an application

to the Crown could be made, and its decision cortld be known. And eventually,

where the leave to Appeal was refused (and it must be presumed, that this would

generally be the case}, execution would follow zhe sentence, after so long an interral,

that all benefit to be expected from a public example mould be lost; and to this it

may be added, that in a great majority of cases, the convicts themselves would be

kept in a state of miserable suspense, [E!Q tir suffer in the end the same igno~ninious

death to which they were seztenced.

For all tliese r:asous, and especialiy because the reservation of the right of

granting an Appeal would be to create an miomaly, unknown where the law of E-ixig-

land prevails, we think the strong probability is, that the clause reserving to the

Grown the righb of granting an Appeal, after refusal by the Supreme Court, was

not ii~tended to apply to cases of felony.

Howewr powerful this reasoning may be to our minds, we still, however, fully

admit that if such be the clear and undoubted meaning of the Charter, we must

give effect to its provisions, however injurious we niay conceive tlie consequences

to be. To ascertain the meaning of thiy clause, we must loolr a t the whole Charter,

a t what precedes and at what succeeds, and not merely a t the clause it-self.

It is first to be observed that the clause in question does not contain one of the

words used in the preceding clause, by which criminal cases were designated. There

is not one word of " ~ n d i c t ~ ~ e n t s , i i i forn~~tio~is , or criminal suits," There is no ex-

pression directly referring to, and snbjecting to further Appeal, the full and

absolute power of allowing or denying Appeals in criminal cases conferred upon

the Supreme Court. And yet if such had been the intention of the Charter, it would

be natural to suppose that when such a power had been given to the Supreme Court

in such very strong ternis, the right of reviewing their decisions, i f it were intended

to be reserved, would have been expressed in language directly noticing the absolute

power just before given, and in terms admitting of no doubt, establishing a control

over that, as regards which, prima facie, by the plain meaning of @92] the words,

they were not to be subjected to any control or reIrision whatever. IVe do not find in

this reserving clause, that which we should have expected to find, if it applied to the

502

REG. 21. EUULJEE EYBARlJEE [1846] V XQBRE, 293

preceding one, but we do find that from the coni i~nence~i i~~~t to the end, i - c 1s peculiarly

applicable to civil cases, and that every expression in it may be satisfied by confining

it to civil cases only.

In the clause, of which the abstract in the margin is, "Appeal to King in

Council," it is directed that, " any persoxi aggrieved by the . ~ u d ~ e n t o r determina-

tion of the Xuprenie Court in any case tvhatever, may Appeal to the Crown or to

the Privy Council, in the manner and under the restrictions and qualifications "

mentioned. The parties aggrieved are to petition the Supreme Court, which Court

is empowered to award that such Judgment or determination shall be carried into

execution, or sufficient security given for the performance of it. Various other

regulations are added, which being connplied with, the Suprenne Court is bound to

allow an Appeal, and the parties are pern~itted to prosecute it in the same manner

as Appeals from the colonies. The clause now conmerited on is clearly confined to

civil cases only. Upoii coiiipariqg it with the resersring clause, we find that the

nnaiter over which the power of the Crown to grant Appeals is reserved, is expressed

and descr~bed by the very terms which are used with respect to Appeals in civil

cases. We are inclined, therefore, to hold that as the reserving clause is fully satis-

fied by confining it to civil cases, that constructioii is conforniable with the general

usage where the English law prevails.

In the p r e c ~ i n g clause in this Charter, the Court of Oyer and Terminer is

authorised to suspend the exe-[2$t$J-cution of any capital offence until the pleasure

of the Crown be known, where there shall appear, in the judgment of the Court,

proper occasion for the exercise of niercy. If the power o€ granting an Appeal in

capital cases was reserved to the Crown, and consequently the right of applying for

it, notw~thstanding the refusal of an Appeal by the Court, would not il hare been

almost necessary to have given the Court, in such case, a power to suspend th2

execution of its sentence, if not to the criininal a right to require such suspension;

till he might avail himself of his reserved right to apply to the Crown, not for

mercy, but by way of Appeal?

For these reasons, i f in this case it were necessary to support the advice we

intend to give to Her Xfajesty, upon the ground that the reserving clause does not ex-

tend to Appeals in capital cases, ive should be disposed to come to that conclusion. If,

however, we should have formed an erroneous opinion in this respect, we think, ~ p o n

the s u ~ p ~ ~ ~ ~ t i o n that the reserving clause does eaterid to felonies, that wc should noc

advise Her Majesty to allow this Appeal. We conceive a power to grant an Appeal

i s confined by the words of the clause to a " Judgment or det,ermination " of the

Supreme Court; and that all, even in this view of the case, which could be done,

would be to allow an Appeal for the purpose of ascertainiiig whether the "Judg-

rnerie or de t e~"min~ t~on 'I of the Court was erroneous in point of lew with reference

to the indictment, or, in other words, whether there tpas error upon the face of

the record, as in England. We do not think that by any construction the Crown

cau grant an Appeal as to the verdict itself. We conceive that we could not go

over again the merits of the case. That we have not, [2$4] and could not have, any

materiaIs for such an i ~ i ~ e s t i g ~ ~ t ~ o ~ . And that to presume that it was intended that

a new trial should take place, is I i n ~ ~ ~ ~ r r a n t e d by the words of the Charter, and

would be ail anomaly in the legal proccedinp of this country. The present appli-

cation i s not. against the '' J u d p e n t 01' detemiination " of the Court, but it is an

app~ication against what was done on the trial, and against the verdict.

It may be argued that the @ram could not, even by Charter., part with its pre-

rogative, But it must be reooliecrxl that this i e a c m e in which the Crown grants

a Charter by virtue of an -4ct of Parliainent, and that Charter, we conceive, must be

considered as granted iii the execution of the powers which were granted by that Act

of Parliament.

A very similar case occurred upon a fermer occasion, t h o ~ ~ l ~ not with respect

to a criminal came. I niean the case of CwzidEie~ v. Byl70in (2 Knapp, p.C. 72).

The very same argunient which WAS used by XI-. Nil1 was used by Mr. Justice Colt-

man, who was then Counsel for the Petitiouer. It was this :-" An Act of the Parfia-

iiient of Great Britain decla'red that all laws passed by the ~ ~ ~ s ~ ~ t ~ ~ e of Gailadx

should be ~i a1id and binding within the colony, and directed, that the Colonial Court

of Appeal should be subjected to such Appeal as it w i i b previous to the- passing of

the Act, and also to such further and othsr provisions as might be made in that

503

But we find no such power given.

V MOORE, 295 REG. 1). ALLOO PAROO [I8471

behalf by any Act of the Colonial Legislature:-Held, that an Act having been

passed by the Colonial Legislature limiting the right of Appeal to causes where the

sum in dispute was not less than S500 sterling, a petition for leave to Appeal, in

a cause where the sum was of less amount, could not be received by the King in

Council, although there was a [295] special saving in the Colonial Act of the rights

and prerogatives of the Crown.”

The Counsel f o r the

Respondent was not heard, but i t was observed, ‘‘ It is not necessary to hear Counsel

on the other side. The King has no power to deprive the subject of any of his

rights, but the King, acting with the other branches of the Legislature, as one of

the branches of the Legislature, has the power of depriving any of his subjects in

any of the countries under his dominion of any of his rights. This Petition must

thereupon be dismissed.”

It was, therefore, held, that though there was a reservation of the right of the

Crown, yet as the Act in Canada was made in pursuance of an Act of Parliament

of Great Britain, the powers contained in that Act did take away the prorogative

of the Crown. So we apprehend this Charter in India, being granted in pursuance

of an Act of Parliament here, i f by the true construction of the Charter the pre-

rogative of the Crown is in any way limited, it must be said to be limited, not by

the Act of the Crown itself, but by the Act of the Crown acting under the authority

of Parliament.

It is for these reasons that their Lordships are of opinion (and perhaps other

reasons might be given arising from a consideration of the peculiar circumstances

of the case), that they must humbly advise Her Majesty, that the prayer of the

Petition cannot be granted.

[Mews’ Dig. tit. CROWN, A. PREROGATIVES GENERALLY. S.C. 3 Moo. Ind.

App. 468. As to appeals in criminal cases from Indian High

Courts to Privy Council, see letters patent (i.) of 28th Dee. 1865, art. 41 (Stat.

R. and 0. Rev. iv. p. 119, Bombay); (ii.) of 28th Dee. 1865, art. 41 (ib. p. 94,

Calcutta); (iii.) of 28th Dee. 1865, art. 41 (ib. p. 107, Madras); (iv.) of 17th

March, 1866, art. 32 (zb. p. 130, North-Western Provinces). See also In r e Mac-

Gren (1893), A.C. 346 (special leave to appeal granted by Judicial Committee

although leave had been refused by Indian High Court), and note to 1% r e Ames,

1841, 3 Moo. P.C. 4131.

Ia that case the Judgment was given in but few words.

~29s-J ON PETITION FROM THE SUPREME COURT O F JUDICATURE AT

BOMBAY.

The QUEEN, on the Prosecution of the BOMBAY GOVERNMENT, against SAMUEL

STEPHENSON, ALLOO PAROO, and Others * [June 23, 18471.

Under the Bombay Charter of Justice, the Supreme Court a t Bombay is invested

with full and absolute power to allow or deny an Appeal in criminal cases,

and no power is reserved to the Crown, by such Charter, t o grant leave to

appeal in such cases [5 MOO. P.C. 300, 3041.

The case of ch.ristkn v. Cor?% (1 p. Williams, 329) observed upon [5 Moo.

P.C. 3021.

This was a Petition for leave to Appeal from a Judgment of the Supreme Court

of Judicature at Bombay, whereby the Petitioner, Alloo Paroo, and two others,

were found guilty of felony, as accessories before the fact, to the burning of a ship,

called the Belvidere. The indictment was preferred in the Supreme Court against

* This and the preceding case being decisions upon the same point, it is thought

advisable to place them together.

Present : Members of the Judicial Committee,-Lord Brougham, Lord Lang-

dale, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

Privy Councillors,-Assessors,-Sir A. Johnston, and Sir E. Ryan.

504