Beasley, C.J.
1. Before dealing with the first point to be considered by this Full Bench, I propose to set out some of the facts of this case. At 1-34 A.M., on January 13, of this year, the Parcels Express train which left the Egmore Station at Madras at 10-10 P.M., arrived at Karunguzhi Station on the South Indian Railway. There it delivered six parcels. Five of these were handed over to the respective owners on production by them of the tickets relating to them at about 7 o'clock on the same morning. The sixth remained undelivered as no one claimed it.
2. It is described by T.S. Narayanaswami Ayyar (P.W. No. 28), the Assistant Station Master at Karunguzhi to whom all the parcels were delivered, as a bed parcel packed in a date leaf mat. The receipt of this parcel and the others was acknowledged by this witness in Ex. U. In order that parcels Could be carried by that train as luggage it is necessary for the senders to have passenger tickets and the number of each passenger ticket is entered on luggage ticket form which gives the particulars of its respective parcel. Exhibit W is the one which relates to the undelivered parcel. The passenger's ticket number therein is Third Class No. 4901. The tickets relating to the other five parcels were duly collected on the night in question. Passenger Ticket No. 4901 was not collected that night and has never been collected, thus raising a very strong inference that the sender of this parcel did not travel by train at all but only got the passenger ticket in order to enable him to send the parcel by the train and this is shown by the prosecution evidence. On the night of the 13th, a foul smell was detected coming from the store room in which the undelivered parcel had been placed and on the morning of the 11th this smell was found to come from the parcel. At 5-30 P.M. on the same day, namely January 14, the parcel was opened in the presence of the Railway Police Sub-Inspector of Chingleput, the Sub-Magistrate of Madurantakam, the Station Master and others and was found to contain the dead body of a woman. This was rolled in a date leaf mat and pieces of gunny and rolled round the body was a mattress.
3. The post mortem examination resulted in a medical opinion that the dead woman had been killed by manual strangulation, the hyid bone having been fractured. The majority verdict of the jury at the trial shows that the prosecution evidence identifying the dead body as that of a woman named Seethammal was accepted by them. This woman was the wife of Parthasarathy Ayyangar (P.W. No. 1). According to the prosecution evidence she left him on August 4, 1933, and joined the prisoner taking with her, her jewels and some silver vessels. The prosecution evidence is that Seethammal and the prisoner were living together thereafter at various addresses in Madras and in the statement made by the prisoner at the Sessions trial he admitted that he lived with her in a house at Muthukrishnier Street for four or five days and then want with her to No. 24 Peddunaicken Street and it is in this latter house that the prosecution case was that Seethammal was strangled to death on the night of January 11. In his statement he denied that he ever lived in a house in the Post Office Street as deposed to by one prosecution witness. The prisoner and Seethammal went to No. 21 Peddunaicken Street, on or about December 22, 1933. The prosecution evidence as stated by P.W. No. 2, the lessee of No. 24 Peddunaicken Street, P.W. No. 3 a tenant of a portion of the house and P.W. No. 6, a milk seller who was supplying milk to Seethammal and the prisoner and who used to deliver milk to the former at the top of the stairs which led to the room occupied by the couple each morning at 5-30 or 6, shows that Seethammal lived at that address with the prisoner until January 11, being last seen in that house at 6 or 6-30 P.M. on that date by P.W. No. 2 downstairs in the courtyard drawing water from a water tap, by P.W. No. 3 at 7 or 7-30 P.M., the same day and by P.W. No. 6, the milk seller, on the morning of the same date.
4. Thereafter Seethammal was never seen alive. On the morning of January 12, P.W. No. 6, the milk seller, went as usual to deliver the milk but found on going up the stairs that the door leading into the room was locked or secured from outside She then went downstairs and told P.W. No. 2 that she had been unable to find any one upstairs. At this time her account for milk supplied was unpaid. Later on she was paid by P.W. No. 2 who received and gave Rs. 4 on the morning of the 12th from the prisoner who, upon being questioned about what the milk woman had reported, said that he had taken Seethammal that morning to his sister's house at Saidapet to assist his sister who was in labour. The prosecution case was that this explanation for the absence of Seethammal was untrue and in his statement at the Sessions trial the prisoner himself gave it up because he there stated that Seethammal left him on January 4. The prisoner remained at Peddunaicken Street until January 13, when he went to another address and thereafter he pledged some silver vessels identified by the, prosecution as those taken away by Seethammal when she left her husband on August 4, 1933. Before this on January 4, 1934 he had pledged another silver vessel similarly identified by the prosecution. Efforts to trace the sender of the parcel containing Seethammal's body resulted in the discovery of P.W. No. 25, Munuswami, a cooly porter at the Egmore Railway Station, and P.W. No. 26, Jagannatha Thathachari, Assistant Parcel clerk at the Egmore Railway Station, the former of whom received the parcel from the accused at the Egmore Railway Station at about 9-45 P.M. on January 12, and with the assistance of another porter, not a witness in the case, carried it and weighed it in the weighing machine at the parcels office. The latter witness booked the parcel to Karunguzhi at the request of the prisoner. Both these witnesses identified the prisoner at an identification parade and at the trial.
5. The case for the prosecution therefore was that Seethammal was last seen alive in 24, Peddunaicken Street, where she was then living with the prisoner on January 11, and that on the evening of the next day the prisoner sent her dead body wrapped up in a parcel to Karunguzhi by train and that afterwards be pledged silver vessels and jewellery alleged to belong to Seethammal. In these circumstances, the prosecution contended that the jury were entitled to and ought to draw the inference that the prisoner had committed the murder, in the absence of any explanation from him which could be accepted as true accounting for her disappearance from No. 24, Pedduniacken, Street, and her reappearance as a dead body wrapped in a parcel and sent by the prisoner by train to Karunguzhi the medical evidence being that she had been strangled. As I have stated before, beyond the two contradictory statements made by him, his denial that he committed the murder, and in the Committing Magistrate's Court his statement that he knew nothing about Seethammal, there was no explanation with regard to why and when Seethammal left the house and why he sent off her dead body in a parcel, if he did so. The jury by a majority of 6 to 3 found the prisoner guilty of the offence of murder, and there being no mitigating circumstances present, he was sentenced to death.
6. It is now necessary to refer to a matter in the case which is the foundation for the first point covered by the certificate of the Advocate-General. When the parcel was opened, Seethammal's body was found to be wrapped up in a coir mattress and the case for the prosecution was that a mattress identified as similar to this was purchased during the morning of January 12, from one Sheik Nanu Sahib, a mattress seller in Madras whose servant was P.W. No. 10, Mahammad Kassim, and that the prisoner was its purchaser. The purchase price was Rs. 3. The purchaser paid only eight annas as he had no money with him then and asked that the mattress should be sent by a coolie and said that he would send the balance with the coolie. This coolie was Thayammal, P.W. No. 11. A cash bill, Ex. D-1 was given. In that bill neither the name nor the address of the purchaser is given. Prosecution witness No. 11's evidence was that on instructions from the purchaser she went to the fish market at Kondithope and there waited for him. After some time the purchaser came and took her to a house near the fish market where she deposited the mattress outside a house at about 12 noon, received the balance of the purchase price and took that back to the mattress shop. Although unable to give the number of the house or the street, this witness subsequently pointed out the house to the Police and it was No. 24 Peddunaicken Street where the accused was living on January 12. From this evidence it might be inferred by the jury that the purchaser of the mattress did not wish to let the vendor know where he was living, viz., in that house. Whilst P.W. No. 10 was being examined-in-chief at the Sessions trial, when asked the following question 'Subsequently did the Police come to you in connection with this case he answered.
About 10 or 11 days afterwards, about 4 P.M. this Inspector and another Iyer came with the accused and the accused pointed out the shop saying that it was in that shop that he purchased the mattress.
7. No objection to this evidence with regard to what the prisoner stated was taken by the learned Counsel for the prisoner--an Advocate of very large experience. This witness was then cross-examined by the prisoner's Advocate with regard to what the prisoner had said on that occasion. Prosecution witness No. 11 stated nothing about what the prisoner had said on this occasion in examination-in-chief but in cross-examination he said:
The accused himself mentioned me and said that it was a woman wearing a coral necklace.
8. No objection was taken by the learned Advocate for the defence to this answer She was also questioned by the Court on this matter. Prosecution-witness No. 42, S.R. Krishna Ayyangar, Inspector of Police, in cross-examination stated:
While we were coming out, the accused pointed out that woman with coral beads on her neck and said that was the coolie that carried my mattress.
9. In examination-in-chief he had stated that he and the prisoner and gone to the premises of the mattress seller and that the prisoner pointed out the premises, having taken the witness direct to that shop. As stated in the certificate of the Advocate-General, no objection was raised with regard to the admissibility of the evidence as to what was stated by the prisoner on that occasion. In my charge to the jury I referred to this matter as follows:
The evidence is that the accused came to the shop in a motor car, got out and pointed out to the Police: 'This is the shop, that is the man and this is the coolie woman who carried the mattress.' But the accused denies all this. This is not only the evidence of these two witnesses but it is also the evidence of the Crime Branch Inspector, Mr. Krishna Ayyangar, who gave evidence at the end.
10. In the opinion of the Advocate-General the reception of this evidence though without any objection to its admissibility being taken and my placing it before the jury in my charge to them are decisions on points of law which require further consideration. The second point raised in the certificate is that in my charge to the jury I failed to tell the jury that there was no evidence that Seethammal was ever in possession of the silver articles after she quitted No. 226 Post Office Street, on or about December 17, 1933, and that the jury ought to have been told that there was no evidence as to her being in possession of them subsequent to that date. This omission is according to the amended certificate of the Advocate-General, in his judgment a decision on a point of law under Clause 26, Letters Patent. The Crown Prosecutor gave notice that he intended to take a preliminary objection at the time of the hearing of this application to the Full Bench, the objection being that the application is incompetent as there was neither an error in a decision of a point of law decided by the trial Judge nor a decision on a point of law requiring further consideration and submitting that the Full Bench decision in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) has wrongly interpreted the words 'decisions on a point of law decided by the trial Judge' occurring in Clause 26, Letters Patent, which he contends is not warranted by the language and spirit of the Letters Patent. In view of this objection a Full Bench of seven Judges was formed to consider this preliminary objection of the learned Crown Prosecutor.
11. The relevant clauses of the amended Letters Patent are Clauses 25, 26 and 41. The marginal note of cl.25 reads:
'No appeal from High Court exercising original jurisdiction; Court may reserve points of law.
12. The clause itself says that:
There shall be no appeal to the said High Court of Judicature at Madras from any sentence or order passed or made in any criminal trial before the Court of original criminal jurisdiction.....But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the said High Court.
13. Clause 26, the marginal note of which is 'High Court to review on certificate of the Advocate-General' reads as follows:
And we further ordain that, on such point or points of law being so reserved as aforesaid, or on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right.
14. Clause 25, therefore, directly prohibits any appeal to the High Court from its own criminal sections, but power is given to the Sessions trial Judge to reserve any point or points of law for the opinion of the said High Court. This latter provision clearly refers to cases where a submission on a point of law has been made to the Court whether by way of an objection to the admissibility of evidence or misjoinder of charges or any other legal question or to points of law raised by the trial Judge himself. Such point or points of law as have been reserved by the Judge are then considered by the High Court under Clause 26, which enables the High Court also on a certificate of the Advocate General to consider a point or points of law decided by the High Court Criminal Sessions trial Judge. The question before us is whether the words of Clause 26 are to be given their ordinary meaning, that is to say, that there must be a point of law and that point of law must be actually decided, or whether the meaning to be given to them is so wide a one as to include what is called 'matter of law' in Section 418 Criminal Procedure Code, that is, such misdirection or non-direction as would permit an appeal from a mofusil Court against the verdict of a jury. This would include not only an error in laying down the law but defects in summing up the evidence or in not summing it up or summing it up erroneously or any infringement of the law as laid down in Section 297, Criminal Procedure Code, which would also include errors of procedure. Mr. T.R. Venkatarama Sastri on behalf of the respondent contends that all matters which would entitle a person convicted at a Sessions Court by a jury to appeal to the High Court entitle him on conviction at the Criminal Sessions of the High Court to ask the Advocate-General for his certificate under Clause 26, Letters Patent.
15. This is not the first occasion on which a preliminary objection similar to that of the learned Crown Prosecutor has been taken, because in Queen-Empress v. O'hara 17 C. 642 the standing Counsel, Mr. Phillips, raised the same objection. This appears from p. 657*. He contended that under Clause 26, there must be a point of law that point of law must have been decided. In dealing with the question of whether there had been a decision he contended:
Secondly, there was no decision. What a Judge may say inadvertently in his charge and which is afterwards looked into and said to contain a point of law, is no decision. No notice is taken of what the Judge may have said till after the case is over. It is not necessary for me to say that nothing that a Judge says in a charge is not a decision; but under Clause 26, the matter must be a matter raised and decided consciously and not inadvertently.
16. The question raised by the standing Counsel the Full Bench did not consider it necessary to decide, although they stated that in their opinion it was clear that in a case of misdirection such as there was there and of improper reception of evidence such as had taken place, the Court should exercise its powers of review. On p. 667 Pages of 17 C.--[Ed.], Petheram, C.J., says:
In the view we take of the case, it is unnecessary to deal with the argument for the prosecution as to the powers of the Court acting under Section 26 of the Charter.
17. In Emperor v. Peary A.I.R. 1909 Cal. 142 : 50 Ind. Cas. 348 : 20 Cr. L J. 300 : 23 C.W.N. 426 (F.B.) the standing Counsel, Mr. Das, raised the objection that under Clause 26, Letters Patent, the Advocate-General has no power to grant a fiat for a misdirection on a question of fact. He argued that there is a distinction between the law applicable to Sessions trials at the High Court and that governing the procedure of mofusil Criminal Courts. Sanderson, C.J., in his judgment expressed no opinion upon the point raised by the standing Counsel as it was not necessary to do so because on the merits no sufficient case was made out for the Court to interfere. In Reg. v. Pestonji Dinshaw 10B.H.C.R. 75 Mr. Scoble for the Crown contended that under Clause 26, Letters Patent, there must be some point of law decided. The exact scope of Clause 26 nevertheless remained undefined by the Full Bench except that it was held that non-direction by a Judge is not a matter upon which the Advocate-General should grant a certificate under Clause 26, Letters Patent. I next come to C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249. In that case before the Full Bench the same preliminary objection as that raised in this case was taken and a direct decision upon the point was given. The Full Bench held that a mistake made by the trial Judge in stating the law to the jury is a misdirection and amounts to a decision of a point of law. Wallace, J., who delivered the judgment of the Court (Eddy, J., dissenting), held that the words 'decision of a point of law' are not confined to the point of law specifically put up and decided by the trial Court. They include, in his opinion, all matters decided or which fall to be decided by the trial Judge in the case. They include his conclusions arrived and stated, whether right or wrong. They also include what he does not state. In his view the word 'decision' includes every mental conclusion on which the charge or judgment is based whether stated correctly or misstated. It includes directions, misdirections and non-directions to a jury. Misdirection includes not only error in laying down the law by which the jury are to be guided but also a defect in summing up the evidence or in not summing it up or in summing it up erroneously, such error and defect being in all cases an infringement of the law laid down under Section 297, Criminal Procedure Code, which applies to all Criminal Courts including the Sessions of the High Court. Therefore in his opinion a trial at the Criminal Sessions of the High Court is on the same footing as one in the mofusil and gives the prisoner the right of appeal or review on all points in respect of which he could claim the same remedy on conviction by a mofusil Sessions Court. In the course of his judgment, Wallace, J., says:
It seems absurd to argue that a judgment which stated nothing or stated nonsense would not be a decision. The Judge in his judgment or charge as read or pronounced is deciding all the time. For example if he omits altogether to sum up the law, he has decided that it is not his duty to sum it up.
18. With all respect to Wallace, J., I am unable to see how an omission to sum up the law can be a decision upon a point of a law although it might be an error. He then continues:
If he admits and discusses certain evidence he has decided to admit it, even though neither party raised the question of its admissibility. If he states that the defence case is so and so, he has decided that it is in fact so and so. Clearly the word 'decision' includes every mental conclusion on which the judgment or charge is based, whether stated or not stated, whether stated correctly or misstated.
19. He further holds that the words 'point of law' are the same as what is called 'matter of law' in Section 418, Criminal Procedure Code. It is true that these observations may be taken to be general since the point for consideration in that case was whether a mistake in laying down the law of the offence charged to the jury was a misdirection and amounted to a decision on a point of law. But even though these observations were not necessary for the decision of that point, they must be considered here as I am bound to say that they appear to me to go far beyond what is intended by Clause 26, Letters Patent. According to Wallace, J., 'decision' includes that which was not staled to the jury. It includes an omission to put certain evidence before the jury, but I must observe that it is not the duty of a trial Judge to put every piece of evidence before the jury nor is it his duty to read out the whole of the defence statement. Yet according to Wallace, J., if he has omitted to refer to any piece of evidence or to any part of the statement made by the prisoner at the Sessions trial, it is open thereafter to an ingenious Counsel to select such omissions and ask the Advocate-General to certify that there has been a decision on a point of law which is or may be erroneous. In my view this cannot be intended by Clause 26, Letters Patent. In Emperor v. Cohen & Bateman 2 Cri. App. Rep. 197 Channel, J., in discussing Section 4(1), Criminal Appeal Act, says:
A mistake of the Judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground' so that the appeal should be allowed according as there is or is not a miscarriage of justice.
20. It would be fair to include also, in the above statement of the position by Channel, J., an omission to refer to a piece of evidence or to a part of the prisoner's statement made to the Court and there are doubtless many other matters of a similar nature. Suppose for example the Judge in his charge to the jury makes no reference to a piece of evidence because he has forgotten about it, how can it possibly be said that he has come to any decision with regard to it and where is the point of law involved? Eddy, J., who delivered the dissenting judgment in the Full Bench case, refers to Emperor v. Cohen & Bateman 2 Cri. App. Rep. 197 in support of his view which is that a point of law referred to in Clause 26 means a point of law submitted to and decided by the trial Judge or any direction as to the law given by him in the course of his summing up to the jury. In his view it is essential that first of all, there must be some point or points of law and, secondly, a decision thereon; and that is what Clause 26, Letters Patent says. A decision must mean a conclusion arrived at. It is true that a person may come to a conclusion in his own mind and, although he does not state it because it is not necessary to state it, it is none the less a conclusion. A person may decide in his own mind to do something and in pursuance of that decision may do it, but what has to be considered here are not cases such as that but what the meaning of 'decided' is in relation to a point of law.
21. When a Judge in his charge to the jury states the law to them he is probably deciding the law. It is his duty to state the law and he consciously states it; but when it is contended that the reception of inadmissible evidence, where no objection is taken as to its admissibility and the Judge's mind is never directed to the question of its admissibility and he has never been asked to say whether it is admissible or not, is a decision of a point of law, in my view it is stretching the meaning of the word 'decision' beyond reasonable limits. The Judge has not even come to a mental conclusion upon the matter. Similarly if he refers in his charge to the jury to this same evidence again without any objection, I am of the same opinion, namely, that he cannot have decided the question of its admissibility. What he has done utmost is inadvertently to refer to what is already in evidence and he has, if it is inadmissible, been guilty of an error which, if it id sufficiently serious, may have resulted in a miscarriage of justice and on that ground the trial may be vitiated but not on the ground that there has been an error in the decision of a point of law. Wallace, J., is of the opinion that, if such matters as he sets out in his judgment, are not 'decisions' upon 'points of law' within Clause 26, Letters Patent, the accused has no remedy. With this view I am unable to agree because it seems to me clear that he has a remedy under c. 41, Letters Patent, which enables an appeal to be carried to the Privy Council from any judgment, order or sentence of the High Court made in the exercise of original criminal jurisdiction provided that the said High Court shall declare that the case is a fit one for such appeal or in any criminal case where any point or points of law have been reserved for the opinion of the High Court in the manner before provided in the Letters Patent, i.e., Clause 25, by any Court which has exercised original jurisdiction provided that the High Court declares that the case is a fit one for such appeal.
22. The earlier part of this clause entitles a prisoner, provided that he has got a certificate of fitness of the High Court, to go direct to the Privy Council in all cases except where the Judge has reserved any point or points of law under Clause 25. In Reg v. Pestonji Dinshaw 10B.H.C.R. 75 it was held that non-direction by a Judge is not a matter upon which the Advocate-General should grant any certificate under Clause 26, Letters Patent. If that opinion is correct, which in my view it is, there is that distinction between an appeal from a mofusil Criminal Court and a criminal trial at the High Court Sessions, and it is also stated that on an appeal from the mofusil the High Court has a much wider sphere of action. There are cases in which the wrong admission of evidence was dealt with by a Full Bench as a matter arising under Clause 26. One of these is Emperor v. Narayana Raghunath Patki 32 B 111 : 6 Cri. L.J. 164 : 9 Bom. L.R. 789 : 2 M.L.T. 414 (F B.) which related to the admission of a confession. But I gather that there had been a ruling of the trial Judge during the course of the trial that the evidence was admissible and this of course would be a decision. But it was also held in the same case that a decision by a Judge as to whether or not a confession is voluntary is not a decision on a point of law but, on a question of fact. The observation of Wallace, J., in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) however, would express the contrary opinion. In Queen-Empress v. O'hara 17 C. 642 the Judge read to the jury a statement (which had been objected to and had not been admitted in evidence) saying that he would read it and it would do no harm and it was held that the improper reception of such evidence constituted a decision erroneous in point of law calculated to prejudice the prisoner. This was a case certified by the Advocate-General under Clause 26, Letters Patent. This is not actually an authority against the learned Crown Prosecutor's contention here. On p. 667 Page of 17 Cal.-[Ed.] in the course of the judgment it is stated:
We think that to lay before the jury these statements, not admitted nor admissible in evidence was in itself a decision erroneous in point of law.
23. In Emperor v. Upendranath Das A.I.R. 1915 Cal. 773 : 30 Ind. Cas. 113 : 19 C.W.N. 653 : 21 C.L.J. 377 : 16 Cri. L.J. 561 (F.B.), as before stated, the Full Bench declined to give a ruling upon a similar preliminary objection to that in this case, but the Full Bench did state the opinion that no error of law is committed by a Judge who refrains from directing the jury as to exceptions which had neither been raised nor relied upon by the accused and had no basis in evidence on the record; and it was stated by Mookerjee, J., that mere non-direction is not necessarily misdirection and by the same Judge that the expression 'lay down the law' in Section 297, Criminal Procedure Code, does not signify 'lay down the whole law on the subject irrespective of the facts of the particular case before the Court.'
24. From the judgment of the latter Judge, with whose opinion I agree, it is clear that the summing up should be strictly confined to the evidence adduced and the mode of application of law to such evidence and not to questions which do not properly arise at all. I refer to this as it has a strong bearing upon the second point raised in the certificate of the Advocate-General. Holmwood, J., on p. 394 Page of 21 C.L.J.--[Ed.], stated that he had no doubt that:
No error of law is committed by a Judge who refrains from directing a jury as to exceptions which have neither been raised nor relied upon by the accused and have no basis in evidence on record.
25. It is true, of course, that what was being considered by the Full Bench, there were the exceptions to Section 300, Indian Penal Code, but these opinions are certainly useful ones as showing that the failure of a Judge to put to the jury a case not raised at all by an accused nor relied upon by him and haying no basis in evidence on the record is not a misdirection to the jury.
26. In considering the scope of Clauses 25 and 26, Letters Patent, it is important to remember that on the dale of the amended Letters Patent, there was in England a statute (11 and 12 Vict., Chap. LXXIII), out of which there came the Court for Crown Cases Reserved: and it is reasonable to suppose that the Crown had in mind that statute when it enacted Clauses 25 and 26 of the amended Letters Patent. I say this because Section 1, Vict. 11 and 12, Chap. LXXIII has somewhat similar words to Clause 25. By that section power is given to the trial Judge or Recorder of a Court of Quarter Sessions or Justices of the Peace before whom a criminal case shall have been tried in his or their discretion, to reserve any question of law which shall have arisen on the trial for consideration of the Judges. Upon such question being reserved the Judge is to state a case setting out the question or questions of law which have been so reserved. The Court before whom these questions came was the Court for Crown Cases Reserved. Section 5 gives the Court of Queen's Bench the power to reverse judgments on writs of error issued upon the fiat of the Attorney-General. The history of writs of error in criminal cases is contained in Stephen's 'History of the Criminal Law of England' Vol. 1, commencing at p. 308. Formerly these were issued entirely as a matter of favour. The defendant brought his writ of error. The Attorney-General admitted that there was error. The Court accepted his admission and the conviction was set aside. But in the third year of Queen Anne's reign Courts decided that they would not be content with the Attorney-General's admission of error but would judicially determine whether error existed or not. Then in cases of misdemeanour writs of error were granted as a matter of justice but in cases of felony and treason exclusively as a matter of favour.
27. It would appear that this method of review in criminal cases was very rarely used and only errors apparent on the face of the record were capable of being reviewed and the record on the date when Sir James Fitz James Stephen published his 'History of the Criminal Law of England,' namely, 1882, took no notice either of the evidence or of the direction given by the Judge to the jury. This appears on p. 309. On p. 312, in the footnote it is stated that the writ of error in Orion's case (1881) March and in Bradlaugh v. Queen (1878) 3 Q.B.D. 607 : 38 L.T. 118 : 26 W.R. 410 : 14 Cox C.C. 68 were the only writs of error in criminal cases which had been decided for a considerable time. In the three cases referred to in argument before us, viz., Ex parte Newton 119 E.R. 323. Ex parte Lees 120 E.R. 718 and Rex v. Wilkes 98 E.R. 329 the errors were all errors apparent on the record. In Bradlaugh v. Queen (1878) 3 Q.B.D. 607 : 38 L.T. 118 : 26 W.R. 410 : 14 Cox C.C. 68 it was again an error on the face of the record. It was there held that in an indictment for publishing an obscene book it is not sufficient to describe the book by its title only, for the words thereof alleged to be obscene must be set out, and if they are omitted, the defect will not be cured by a verdict of guilty and the indictment will be bad either upon arrest of judgment or upon error.
28. It is clear that in all the cases referred to in argument there what were being considered were some errors appearing in the indictment. In Orton's case (1881) March, (vide the foot-note to p. 309 in Stephen's History to the Criminal Law of England) the main question was whether cumulative punishment could be awarded for two offences charged in separate counts of the same indictment. In my view, it is clear that writs of error dealt entirely with points of law apparent on the face of the record such as an indictment. Therefore on the date of the Letters Patent there was in England a very restricted right of review in criminal cases, that is to say, on points of law reserved by the trial Judges and cases stated by them covering such points and writs of error with the fiat of the Attorney-General dealing only with errors of law on the then record, such cases being extremely rare. What was the intention of the Crown when Clauses 25 and 26, Letters Patent, were enacted? It seems to me only reasonable to suppose that an endeavour was being made to give a similar power of review in the case of trials at the Criminal Sessions of the High Court although the contention of the Crown here concedes that a slightly greater right of review has been given in that, instead of writs of error dealing only with errors appearing only in the indictment, the Advocate-General is entitled to give his certificate in respect of a point or points of law submitted during the trial to the Court which the Court has not reserved for the opinion of the High Court bat given a decision thereon the contention of the Crown being that when points of law are raised during the trial and submissions made thereon the Judge had the alternative either of giving a ruling upon the point or points of law submitted or of reserving the point or points for the consideration of the High Court and that Clause 26, so far as the Advocate-General's powers are concerned, relates only to the before-mentioned point or points of law not reserved but decided, although it is conceded by the Crown that mis-statements of the law in laying it down in the charge to the jury are also included. In my view, this contention is right. Having regard to the then existing powers of review in criminal cases in England, I can see no warrant for the contention that the Crown intended to give a right of first appeal similar to that from a mofusil Criminal Court; and I am satisfied that the view taken by Wallace, J., that there is such a right is incorrect though the decision in G.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) on the main question is no doubt right.
29. In connection with the contention that there is a right of first appeal in such cases similar to that from a mofusil criminal trial, I must observe that this view does not appear to have been the one generally taken because, as far as I have been able to ascertain, since 1881, before which date there are no records, only three cases have come before the High Court under Clause 26, Letters Patent. I am of the view that neither of the points raised in the certificate of the Advocate-General here are within the purview of Clause 26, Letters Patent. With regard to the first point, although the admissibility of evidence is without doubt a question of law, there was no decision thereon at the trial. If the evidence was inadmissible then it was an error of law but I am unable to see how there was a decision upon a point of law. It was open to the learned Counsel for the prisoner either during the charge to the jury or afterwards to make a submission with regard to the admissibility of the evidence and indeed it was his duty to do so if in his opinion the evidence was inadmissible unless he thought that in view of the other evidence in the case, its admission did not materially prejudice his client. Turning to the second point, I am quite satisfied that this does not come point was first set out in the Advocate-General's certificate, it was exceedingly difficult to understand what the alleged point of law was, much less so, how there had been any decision with regard to it. The Advocate General was allowed to amend his certificate and has done so by adding the words:
and in my judgment the facts and circumstances mentioned above are and constitute a decision on a point of law under Clause 26, Letters Patent.
30. After some difficulty Mr. Venkatarama Sastri formulated the following contention, namely that it is the duty of the trial Judge to tell the jury upon whom the onus of proof rests and that in a criminal case the onus, subject to certain exceptions, is always upon the prosecution. With this contention no one will quarrel. He then contended that I ought to have told the jury in my charge that the Crown had to prove that Seethammal was in possession of the silver vessels during the time when she was living in 24, Peddunaiken Street and that the prosecution evidence only showed that she was last in possession of them when she was living with the prisoner at 2/26, Post Office Street, which she left in his company on or about December 17, 1933, and that the jury would be entitled to say that it had not been proved that Seethammal had these articles with her down to the time of her death. The answer to this contention and it is one which is so obviously given in the statement of the prisoner at the trial that it is difficult to see how, with all respect, the Advocate-General could have overlooked it, is that this question was never in issue in view of the prisoner's a own case. I must here again refer to the case for the Crown with regard to these articles. It was that they had been taken away by Seethammal from her husband when she left him in the previous August and after her death were pledged by the prisoner and indeed one of them was a week before her murder. The prisoner did not dispute the pledging of the silver vessels but he denied that they were Seethammal's and said that they belonged to him. In his statement made to the Court he said:
There were also certain silver articles with me such as silver plate, silver cup, panchapatram, etc., which were presented to me by my father-in-law's people. I was keeping these jewels and other things for my own use. They are all my own,
31. And later on:
As I have pledged these silver articles etc. which (sic) that I had pledged such and such jewels at such and such place. They are articles of my own.
32. It was not the prisoner's case that he left 24, Peddunaicken Street, before the January 12 or 13. The question was to whom did these articles, identified in Court as the pledged articles and admitted by the prisoner to have been pledged by him, belong Seethammal's husband had identified them as belonging to him. The question as to whether or not they were in 24, Peddunaicken Street was never in issue in view of the prisoner's case. He said that the articles were his, that they were with him and that he had been using them. The point now put forward was one which was not raised by the prisoner by way of defence and it appears to me to be unsound to contend that nevertheless the Jury should have been invited by me to disbelieve the prisoner's admission that these articles were with him and, as it were, contradict him on that point and that instead the jury should have been directed that they were entitled to infer that they were left behind in 2/26, Post Office Street, when Seethammal and the prisoner removed themselves from there to 24, Peddunaicken Street which was never the case of the prisoner. I am wholly unable to see how this was even a non-direction as to the question of onus; and I am satisfied that this is not a decision on a point of law within Clause 26 Letters Patent.
33. An objection was taken to the learned Grown Prosecutor's preliminary objection and that was that the certificate of the Advocate-General is conclusive with regard to all matters it contains except his opinion with regard to the error. It was contended that his certificate is final and conclusive and that the Court is not competent to say that there is no point of law or a decision upon it within Clause 26 if the Advocate-General certifies that there is. Mr. Venkatarama Sastri argued that the Advocate-General's judgment in Clause 26 relates to the error in the decision of the point or points of law and not to whether a point or points of law has or have been decided. But in his amended certificate, the Advocate-General has added the words, 'which are in my judgment decisions on points of law.' I am quite unable to see why the High Court is limited in its powers to a consideration of whether the Advocate-General's judgment is wrong with regard to the error and has no power to consider his judgment on the other points. During the course of his judgment Mr. Venkatarama Sastri was asked whether the Advocate-General could convert a question of fact into a 'point of law' decided merely by stating that it was a point of law in his certificate; and to this question no satisfactory answer was forthcoming. The Advocate-General derives his powers of certification from Clause 26 and Clause 26 alone. His powers are limited to points of law decided. If there is no point of law or no decision upon it, then he has no jurisdiction to grant a certificate; and I cannot accept the contention that the High Court is nevertheless bound to entertain the reference where the Advocate-General has mistaken a question of fact for a point of law or mistakenly thought that there has been a decision upon it. The High Court only gets its powers of review in such cases from Clause 26 and, if the High Court reviews questions which are not points of law or points of law which have not been decided, it is exceeding its powers of review. During the argument another question was put to Mr. Venkatarama Sastri, namely, suppose the . Judge reserves a point under Clause 25 erroneously believing it to be a point of law whereas it is a question of fact', would the High Court be bound to entertain the reference which on the face of it is one on a question of fact, merely because the trial Judge has reserved that point? I understood Mr. Venkatarama Sastri to agree that the High Court would not be bound to do so. If this is so, I am quite unable to understand why it, should be contended that the Advocate-General is in any better position. Both he and the trial Judge derive their powers from Clauses 25 and 26, respectively. I am, therefore, of the opinion that the Advocate-General's judgment not only as regards the error but as regards there being points of law decided is open to be questioned by the High Court; and, for the reasons I have already given on the main question, neither of the points set out by the Advocate-General in his certificate are points of law decided within the meaning of Clause 26, Letters Patent, and that therefore we cannot entertain this criminal miscellaneous petition.
Ramesam, J.
34. In this case the accused was tried for the offence of murder under Section 302, Indian Penal Code, before my Lord the Chief Justice of this Court assisted by a jury. The jury by a majority of six to three brought in a verdict of guilty. My Lord accepting the verdict of the majority, sentenced the accused to death. Thereupon the accused applied to the learned Advocate-General and obtained a certificate which purports to be a certificate under Clause 26, Letters Patent. On the basis of the Advocate-General's certificate the accused applied to this Court for a review of the case. The matter accordingly came up before a Full Bench of seven Judges.
35. The facts of the case, so far as they are relevant for the purpose of this judgment, are stated in the judgment of my Lord the Chief Justice and it is unnecessary to repeat them. The Crown Prosecutor has taken a preliminary objection that the certificate given by the Advocate General does not satisfy the requirements of Clause 26, Letters Patent, and gives no jurisdiction to this Court to review the case. He contends that there must be a point or points of law decided by the Court of Original Criminal Jurisdiction, and where there is such a point of law decided by the Court, the Advocate-General may certify that there is an error in the decision or that the point or points of law should be further considered; but the Advocate-General can give no certificate if there is no decision by the Court of Original Criminal Jurisdiction on a point or points of law. In Queen-Empress v. Shib Chandra 10 C. 1079 an objection of this kind was taken by Mr. Phillips who appeared for the Crown, but the judgments delivered in the case do not relate to this point but proceed to deal with the merits of the case. Again in Queen-Empress v. O'hara 17 C. 642 a similar objection was taken by the standing Counsel who appeared for the Crown. Petheram, C.J., in delivering the judgment of the Full Bench observed:
In the view we take of the case, it is unnecessary to dealt with the argument for the prosecution as to the powers of the Court acting under Section 26 of the Charter. We take it to be clear that in a case of misdirection such as this and of improper reception of evidence such as took place in the present case, this Court may and ought to exercise powers of review.
36. In an earlier part of the judgment the question was discussed whether an omission by the Judge to advise the jury according to the rule that an accomplice is unworthy of credit unless he is corroborated in material particulars would be a ground for interference and the learned Chief Justice observed:
We are not prepared to say that the Court might not feel bound even on the ground of such an omission alone to review the case under Clause 26, Letters Patent. This difficult question, however need not be decided in the present case.
37. In Reg. v. Peston Dinshaw 10 B.H.C.R. 75 Counsel for the prisoner asked the presiding Judge to Rule (hat there was no case to go to the jury but the learned Judge refused to do so holding that there was certainly a case to go to the jury. At the close of Counsel's address his junior Counsel by his direction asked the learned Judge to reserve under Clause 26, Letters Patent, for the opinion of the High Court a certain point of law, but the learned Judge declined to do so saying that he did not think there was then any , question of law to be reserved. The Advocate-General who gave the certificate appeared in support of the conviction. He stated that he gave the certificate on the representation of the Counsel but he did not admit as a fact that a direction alleged to have been given had in fact been given. Thereupon the Court suggested that the certificate might be amended which was accordingly done. After amendment the certificate stated that the Judge did not instruct the jury on a certain point of law, and did tell the jury that there was no point of law to be reserved for the opinion of the High Court. Westropp, C.J., observed:
The allegation in that certificate that the Judge refused to reserve the point of law states no error in law.... The first part of this allegation, viz., that the Judge did not instruct, etc., is an averment of an omission and no more on the part of the learned Judge, It simply puts forth a non-direction by him, not a misdirection.
38. After referring to some of the authorities the learned Chief Justice quoted Baron Parke in M'Alpine v. Manganlal 3 C.B. 496 : 15 L.J.C.P. 298 who said:
That which you complain of here is a non-direction which cannot clearly be made the subject of a bill of exceptions.... It is misdirection and not non-direction that is the proper subject of a bill of exceptions.
39. Again he quotes Crompton, J., in Sedly v. M'Gawan 7 Ir. C.L. Rep. 434 who said:
The Judge is not by law compelled to charge at all though in many cases it may be right and expedient to do so. The exception should be for misdirection, not for non-direction.
40. Then the learned Chief Justice referred to two cases, Queen v. Elahee Bux 5 W.R. 80 Cri.; B.L.R. Sup. 459 and Queen v. Narain Achari 8 W.R. 80 Cr., which were relied upon by Counsel for the defence stage. The extracts which I have quoted above show sufficiently that this Court on an inquiry following the grant of a certificate has jurisdiction to say that the Advocate-General's certificate is misconceived and should not have been granted on the ground that there is no decision on a point of law involved in the case, and if it conies to that conclusion the petition may straight away be dismissed without any further consideration of the merits of the case. Having regard to the terms of Clause 26, Letters Patent, no other conclusion is possible. If this conclusion is sound in law, the question whether the Advocate-General's certificate is competent should be argued on a preliminary objection raised by the Crown Prosecutor or should be decided after the case is opened by the Counsel for accused, is not of much material importance. The proper procedure to be followed should, I think, be this. The Counsel for the accused should first open the case. If this is done, we will be giving practical effect to what is implied in the dictum of Jenkins, C.J.
That the certificate has been granted and we therefore have to deal with the case.
So much relied on by Mr. Sastri, for quite a different purpose, namely, to show that we have no alternative but to hear the whole case when once a certificate has been granted. Prima facie the certificate is entitled to weight as containing the considered opinion of the Advocate-General and that as a matter of practice the Counsel for the accused should as usual in cases of appeal have the first hearing. The objection that the certificate is incompetent was never argued at first as a preliminary objection in any of the cases where the point was pressed on behalf of the Crown. However, this matter is not of much material importance. I must overrule the objection urged by Mr. Sastri.
41. In the result, I would hold for the reasons stated above, the case should be heard with respect to the first point raised in the Advocate-General's certificate in accordance with the provisions contained in Clause 26, Letters Patent.
Curgenven, J.
42. This Bench has been formed to consider, the correctness of the former Full Bench's opinion reported in G.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 which the learned Crown Prosecutor gave notice that he would contest, the substantial questions being what is meant by a point of law, and by a decision of a point of law, in Clauses 25 and 26, Letters Patent. Mr. T.R. Venkatarama Sastri for the petitioner has raised an even more fundamental point, whether the opinion of the Advocate-General upon these points can be questioned by the Court. In the view I take of the answers to be given to the former questions, this latter point does not arise in the circumstances of the present case. The two points taken by the learned Advocate-General are: (1) that my Lord the Chief Justice admitted certain evidence and directed the attention of the jury to it in his charge, and that the admissibility of this evidence requires further consideration: (2) That the correctness or a certain direction given to the jury with regard to the possession by the deceased woman of certain articles at the time of her death requires further consideration.
43. Point No. (1).--Whether or not the evidence in question was admissible was undoubtedly a 'point of law,' since if decided at all it had to be decided in accordance with the terms of the Evidence Act, Under Section 298(1)(a), Criminal Procedure Code, it is one of the 'questions of law' which the Judge has to decide, and I am unable to distinguish between a 'question of law' and a 'point of law' in this context. Was that point of law 'decided?' The expression may be used in a stricter or in a broader sense. In the stricter sense it may be said that no point of law has been decided unless it has been formally raised, or expressly brought into issue, and formally and expressly adjudicated upon by the Court. In the broader sense a point may be said to have been decided whenever the Court acts in a manner appropriate only upon a certain view of the law in its application to the facts. For instance, if it is a question of the admissibility of a piece of evidence which has been admitted, upon the stricter view the point of law will only have been 'decided' if the admissibility of the evidence has been contested and the Court has ruled that it is admissible; upon the broader view, the admission of the evidence to the record, even without dispute, will constitute a 'decision' by the Court, because the question of admissibility is one for the Court to decide, and, the Court has acted as though it had decided it in the one way and not in the other.
44. I do not obtain much help from the language of Clauses 25 and 26, Letters Patent, in deciding this question. Under Clause 25 the Court of Original Criminal Jurisdiction may reserve any point or points of law for the opinion of the High Court. Under Clause 26 the Advocate-General is empowered to certify that there is.
an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered.
45. Some guidance as to what is a 'point of law' for the purposes of the Advocate-General's certificate may perhaps be obtained from the consideration that it should be ejusdem generis with a 'point of law' reserved by the trial Court. But what amounts to a decision is not, I think, indicated by the terms of these clauses, and we must construe the word upon such general principles, and with the help of such analogies, as would seem to apply. In particular, regard must be had to the duty of a Judge in trying a case with the help of a jury. To advert first to the stricter construction, it cannot, I, think, be a necessary condition that the point of law has been raised by one of the parties and what is so urged resisted by the other; because such a point may have been raised suo motu, by the Court, and then decided. Section 293, Criminal Procedure Code, makes it the duty of the Judge to decide, for example, all questions of the admissibility of evidence, and this duty is laid upon him whatever may be the attitude of the parties. Suppose he disallows a question on the ground that the answer would be inadmissible in evidence. Can it be said that his action amounts to a decision if it is taken at the instance of a party, and does not amount to a decision if it is spontaneous? Since the law clearly empowers and obliges a Judge who tries a case by jury to decide questions of law irrespective of whether or not they are expressly raised, I cannot accept such a test.
46. The further question then is whether to restrict the terms 'decide' and 'decision' to cases in which it appears that the Court applied its mind to the point of law, and performed the intellectual operation of deciding it, or whether to extend them to other cases, in which, while it is doubtful or even improbable that any such process took place, yet the effect was the same. To give an illustration, if Judge says to the jury 'there is evidence which I consider to be admissible under Section 27, Evidence Act...' he would be in express terms deciding a point of law, Would he be deciding it if the omitted the words italicised? If we are to limit the meaning of 'decide' in the manner suggested, the answer will be 'yes' if in fact he bad made up his mind that the evidence was admissible and 'No' if he had not done so. If the record fails to throw light, upon the matter, it can only be settled by the Judge himself. If his reply be that he considered the question of admissibility and thought the evidence admissible, the convicted person will have redress under the clause, bat he will have no such redress, if the admissibility of the evidence received no consideration.
47. It may be conceded that, unless sufficient reason to the contrary appears, words should be given their ordinary meaning; and, if this discussion were taking place in the realm of psychology and not of law, it would doubtless to all important to ascertain precisely the nature and extent of the mental operations involved before determining whether a point had been 'decided.' But in law it is sometimes necessary to treat the apparent as if it were the existent, and to construe a man's intentions by his acts. I am not much influenced therefore by the dictionary definitions of the word, if there are principles of judicial procedure which demand that it should be given a more extended meaning. I think that such an extension is required by the following consideration.
48. The whole purpose of correctly deciding points of law is that the proper materials may be laid before the jury to enable them to arrive at their verdict. It is to secure this object that nothing but admissible evidence must be admitted, and that, where the verdict has to depend upon the application of a provision of law to the facts, that provision must be correctly explained. It follows that we are not concerned with what passed through the Judge's mind, but with what he does and what he says. In other words, the record of what took place at the trial must be accepted as the sole test. The jury, for whose guidance points of law are decided, can have been influenced only by what so took place, and in dealing with this matter we must, I think, put ourselves in the position of the jury and inquire in what manner their minds are likely to have been affected. If the Judge has succeeded in conveying to them a correct impression of the law by which they should guide themselves, if he admits and lays before them only such evidence as the law declares to be admissible, then he has correctly decided for them a point of law. If he has conveyed an erroneous impression, or allowed them to act upon inadmissible evidence, then he has incorrectly decided the law, whatever be the cause of his error, and whether he has in his own mind a correct notion of the law or not. Similar considerations lead, I think, to this further conclusion that where something is said or done which would be right upon one view of the law and wrong upon another, the law must be taken to have been decided in the one way, and not in the other. For it is the duty of the Judge to decide the law, and if what he does has all the consequence of a conscious decision it makes no difference to the jury or to the Crown or to the accused whether that consequence is intended, or whether it is produced by inadvertence or any other cause. It is only the result that matters, and if implicit in that result is a certain view of the law in its application to the facts, the Court must be deemed to have taken that view, and to have decided the point of law accordingly. I think this principle is commonly enough recognized in dealing, for example, with second appeals. Where an issue involves a point of law, and there is a finding given, we infer that the point of law has been decided in consonance with the terms of that finding and we do not concern ourselves with whether the Judge was awake to the necessity of applying the law or whether his action was produced by a failure on the part of one of the parties sufficiently to direct his attention to the point or is attributable to a mere disregard of the law or to negligence. For the purposes of Section 100, Civil Procedure Code, the finding is all that we need look at in order to settle whether 'the decision is contrary to law.'
49. So in a criminal trial, where the Judge has given a certain direction to the jury and that direction can only be justified upon a certain view of law, it must be taken, 1 think, that the Judge has decided the law in that manner, and not otherwise. It cannot be said that the point of law involved remains undecided. This has indeed been conceded before us in the special case of a misstatement of the law by the Judge, in laying it down to the jury, to whatever cause that mis-statement may be due--for an example, reference may be made to the previous Full Bench. Unless we put this construction upon the Judge's action, reading a decision into it where a decision fell to be made, we shall become involved in serious practical difficulties. Are we to limit a 'decision' to something of which the record contained express proof that it was 'decided' in the sense of a conscious mental operation? That would be to exclude cases in which it seems probable that there was in fact a decision, although the Judge has not expressly recorded it. If on the other hand, we are to include such other cases, we should have to make inquiry into the working of the Judge's mind although, so far as the consequences were concerned, the state of his mind was not what mattered. It is, I think, a universal rule--I can at least call to my mind no exception in this country--that all questions of fact or of law, of substantive law or of procedure, which arise for decision in any appellate, revisional or other proceedings of like character, whether out of a criminal or of a civil cause, are to be decided upon the record under scrutiny, unsupplemented by extraneous matter.
50. It would be very, unusual, in such circumstances, to take into consideration a statement by the Judge as to what took place in Court. To go further and take into consideration what passed through his mind, when that could not, be ascertained from the record, would be unique departure from accepted principles. Yet we should be faced with the need for such an inquisition, whenever the matter was in doubt, before the certificate of the Advocate-General, that a point of law had been decided, could be entertained. The wider construction of 'decided' offers no such difficulties, because we need only examine the record to ascertain how the matter involving the point of law was dealt with, and the 'decision' will emerge. It may be objected that such a construction would unduly widen the scope of Clause 26, and would lead to points of law being raised after the trial which were never raised during it. This latter objection is certainly true, but I am not sure whether, having regard to the duty laid upon the Judge by Section 298, Criminal Procedure Code, it is a very valid one. That duty, it must be remembered, is absolute, not contingent upon the issue being raised by the parties. How, for instance, would the matter stand in the case of an undefended accused? As regards the scope of the clause, I agree that Wallace, J., in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) goes too far, and, if I may say so with respect, confounds an erroneous decision of a point of law with an infringement of a provision of law, such as misdirecting as to fact. But where, in my view, an erroneous decision is implied in the action taken, I think that the clause should be taken to cover it, on the principle that substance should be preferred to form, and that the effect on the jury is the same, by whatever causes produced.
51. For these reasons, I think that, so far as the first of the learned Advocate-General's points is concerned, this Court should accept jurisdiction and proceed to determine the point of law involved.
52. Point No. 2.--The point involved is one of misdirection of fact, not of law. Such a misdirection may be an infringement of a provision of law (Section 297, Criminal Procedure Code), and therefore, an error in law, but I do not agree with Wallace, J. that an error in law is necessarily an erroneous decision upon a point of law. As Eddy, J. inquires, what is the point of law decided? Now Clause 26 confers jurisdiction not only upon the Advocate-General to certify the case but also upon the Court to review it. One condition is common to the jurisdiction of each; the Advocate-General must find a point of law, which in his view has been wrongfully, or doubtfully decided, the Court must find a point of law, for it has finally to determine it. Whatever may be the powers of the Court to control the Advocate-General, it clearly has no basis of action if in its view no point of law to be determined has been laid before it. On this ground I would decline to entertain point No. (2).
Cornish, J.
53. In my opinion the objection taken by the learned Crown Prosecutor to the maintainability of this application is well founded. The Advocate-General's power to issue a certificate under Clause 26, Letters Patent, is exercisable at his discretion, and it is clear upon authority that its exercise by him is not subject to the control of the Court. But there is no sanction in the Letters Patent for the proposition advanced in the argument that his certificate is conclusive upon the question of a point of law having been decided. It was not, as I understood the argument, maintained that if a Judge purporting to reserve a point of law under the power given by Clause 25 should erroneously have reserved a question of fact, the High Court would be bound to consider it as a point of law.
54. There is no apparent reason why the certificate of the Advocate-General should in this respect stand in a better position than the case reserved by the Judge for the consideration of the High Court. Clause 26 limits the power of the Advocate-General to certify with regard to a point of law decided; it does not say that he may certify with regard to a point of law which the Judge ought to have decided but has failed to decide.
55. The language of Clause 26, Letters Patent is plain enough; and, but for the judgment of Wallace, J., in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249. I think there would be no difficulty in saying that the words 'decision of a point or points of law decided by the Court of original criminal jurisdiction' mean a point or points of law which arose at the trial and on which the Judge has given a decision. But Wallace, J., has held that there is no real distinction between the expression 'point or points of law' in Clause 26 and the words 'matters of law' in Section 418, Criminal Procedure Code. And from this he has concluded that every dereliction of duty imposed by Section 297 of the Code upon the Judge in charge to the jury, whether it be in the shape of a misdirection or non-direction which would give a right of appeal under Section 418, is equivalent to a decision of a point of law within the compass of Clause 26.
56. With great respect, I think that the learned Judge was in error in resorting to Section 418 of the Code to find the meaning of Clause 26 of the Letters Patent. It is a fallacious mode of interpretation to construe one enactment in the light of another not in pari materia, not having the same scope, and expressed in different terms: gee Maxwell on Statutes, Edn. 7, p. 34; Craise's on Statute Law, Edn. 3, p. 122 and the cases there cited. The language and scope of Clauses 25 and 26 of the Letters Patent differ entirely from those of Section 418 of the Code. The section gives the right of appeal to the High Court; whereas Clause 25 begins by ordaining that there shall be no appeal to the High Court from a sentence or order passed in the exercise of the ordinary criminal jurisdiction of the High Court. Besides, not every matter of law which would support an appeal under Section 418 would amount to a decision of a point of law. For instance, it is a matter of law in the sense that Section 281 requires it, that the jury shall be sworn. And if by inadvertence one of the jurors was not sworn and the mistake was not discovered until the trial had ended, no doubt this would suffice to support an appeal on the ground of a mistrial; but I fail to see how it could be said that the trial Judge had decided a point of law. For the same reason I am of opinion that non- direction by the Judge, though it might be a failure of duty on his part would not be a decision of a point of law.
57. Clause 26 directly limits the Advocate-General's power of certification to 'a point or points of law decided by the Court of original criminal jurisdiction.' The ordinary meaning of this limitation is that there must have actually been a decision by the Judge of the point or points of law certified by the Advocate-General for the further consideration of the High Court. This was evidently the meaning which Sir John Wallis (then Wallis, J.) thought should be given to Clause 26 in Kumaraswami Pillai v. Emperor (2l), at p. 437 Page of 35 M.--[Ed.] where he says:
The Advocate-General's certificate has been granted under that part of Clause 26 which empowers him to certify that a point or points of law which has or have been decided by the said Court shall be further considered. The certificate purports to have been granted upon certain representations made to the learned Advocate-General and does not show whether the written judgments of the Court were before him. They are before us and we have to satisfy ourselves in the first place as to what was actually decided... with reference to each of the points of law and as to whether the decision was erroneous.
58. Indeed it is difficult to understand how the Advocate-General can be expected to certify that a point of law has been in his judgment erroneously decided or that the decision requires further consideration unless there has been an actual decision. A point of law may be decided without being the subject of a formal ruling by the Judge. If the Judge has misdirected the jury on the law or on what is admissible evidence there is no difficulty in concluding that what the Judge has told the jury has been decided by him to be the law of legal evidence. It is evident from his direction to the jury. But it seems to me to require recourse to a fiction, not warranted by Clause 26, to say that a point of law which has lain dormant throughout the trial has been decided by the Judge. I am unable to find upon the record that the points of law certified by the learned Advocate-General or further consideration were points of law decided by the learned trial Judge. The first point, though it is discoverable in the record, was not the subject of a decision by the Judge, and of the (second point there is no trace in the record. For these reasons I think that the application for a review must fail.
Burn, J.
59. This is an application under Article 26 of the Letters Patent, for review of the judgment in S.C. No. 5 based on the learned Advocate-General's certificate that in his judgment two matters require to be further considered by this Court. The learned Crown Prosecutor has taken a preliminary objection that the certificate granted by the learned Advocate-General is itself incompetent, and that consequently this Court has no jurisdiction to consider the matters of law set out in the certificate. The learned Crown Prosecutor's objection is based upon the terms of Article 26 of the Letters Patent. The material portions of the clause are as follows:
On its being certified by the said Advocate-General that in his judgment... a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case or such part of' it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right.
60. The learned Crown Prosecutor contends that 'a point of law' in this passage must mean some proposition of law which has arisen in the trial, which has been presented to the Judge for consideration (whether on the representation of Counsel on either side, or of the Judge's own motion) and upon which the Judge has made an express pronouncement of law. In the present case, the first of the two points certified by the learned Advocate-General as requiring further consideration is whether certain statements, said to have been made by the accused while in the custody of the Police, were admissible in evidence. The second point is to the effect that the learned trial Judge omitted to direct the jury properly in regard to the absence of any evidence of possession by the deceased woman of certain silver articles during the period between December 17, 1933, and January 11, 1931. As regards the first point it is not contended for the accused that any objection was taken during the trial to the admission of the evidence, or that any question as to its admissibility was raised; such a contention would be impossible in view of the fact that of the eight statements set out in the certificate, six were elicited by the learned Advocate for the accused in the cross-examination of the (sic) the prosecution witnesses. As regards the second point it is not contended for the accused that there was any evidence about the possession of the silver articles by any one other than the deceased woman during the period after December 17; the suggestion is only that the learned trial Judge ought to have pointed out to the jury that there was no evidence about the possession of these silver articles after December 17, 1933, and that his omission to do so may be a 'misdirection or non-direction amounting to an error of law.' In these circumstances, according to the learned Grown Prosecutor's contention, it cannot be said that the learned trial Judge decided any point or points of law, and if that is so there is no point of law which can, under Article 26, Letters Patent, be further considered by this Court.
61. For the accused Mr. T.R. Venkatarama Sastri makes a two-fold reply. In the first place he offers a counter-objection to the entertainment of any such preliminary objection raised by the learned Crown Prosecutor. Reduced to the briefest possible statement, the counter-objection is to this effect: the Advocate-General is the sole judge of the facts necessary to be established before he can give his certificate, and when once the Advocate-General has granted a certificate, this Court has no jurisdiction to examine the grounds on which the certificate has been granted, but must proceed forthwith to review the case, or so much of it as may be necessary, and finally decide the point or points of law raised in the certificate. In the second place his contention is that even if this Court has jurisdiction to go into the question whether there has or has not been a decision by the trial Judge of a point or points of law, what was done by the learned trial Judge in S.C. No. 5 did in fact amount to a decision of both the points of law mentioned in the Advocate-General's certificate.
62. Mr. T.R. Venkatarama Sastri's counter-objection is supported by a lengthy argument based upon cases in which the power of the Attorney-General in England to issue a fiat or a certificate has been exercised. With respect, I do not think it is necessary, strictly speaking, to discuss the powers of the Attorney-General in England. The only power of the Attorney-General which, as it seems to me is, at all relevant to the matter before us, is the power of certifying for a second appeal to the House of Lords from the decision of the Court of Criminal Appeal. Under Section 1(6), Criminal Appeal Act of 1907, if the Attorney-General certifies that the decision of the Court of Criminal Appeal:
involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought
Then the Director of Public Prosecutions or the Prosecutor, or the defendant may appeal to the House of Lords. It has been observed by Lord Sumner in Thompson v. King (30) that:
The certificate of the Attorney-General, which is the condition precedent to an appeal to your Lordship's House from a decision of the Court of Criminal Appeal, is granted in his discretion and is the subject neither of review nor of criticism
63. On this and similar dicta, Mr. T.R. Venkatarama Sastri bases his contention that when the Advocate-General has granted his certificate under Article 26, Letters Patent, this Court must go on to consider the point or points of law mentioned in the certificate and cannot say that the Advocate-General's certificate is itself incompetent. It is, however, to be observed that the wording of Section 1(6), Criminal Appeal Act of 1907 is very different from the wording of Article 26, Letters Patent, and I am of opinion that the learned Crown Prosecutor is in a strong position when he contends that since Article 26 has been specially enacted to define the powers of the Advocate-General in connection with criminal trials before this High Court, the general provision in Section 114(2), Government of India Act, cannot be read as giving him wider powers in the same matters. This question must, therefore, be considered only in relation to the terms of Article 26 of the Letters Patent. If this is so I am quite unable to see why it should be supposed that this Court has no power to deal with such a preliminary objection to the Advocate General's certificate as the one raised by the learned Crown Prosecutor in this case. It is not disputed that this Court can, after a review of so much of the case as may be necessary for the purpose, hold that the trial Judge has committed no error in his decisions on points of law. Why then it should be supposed that this Court is unable to hold that the trial Judge had not in fact decided any point of Jaw, I cannot at all understand. I would therefore, overrule the counter-objection raised by the learned Advocate for the accused, and hold that it, is quite within the competence of this Court to entertain the learned Grown Prosecutor's preliminary objection.
64. The real problem is whether the preliminary objection is well founded. As to this, I respectfully agree with all that my Lord the Chief Justice has said. With due deference to the judgment of Wallace, J., in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249. it appears to me that the expression 'a point of law' in Article 26 must have the same meaning as it has in Article 25 of the Letters Patent. Just as it is not possible for the trial Judge to reserve a point of law under Article 25 without knowing and stating what the point of law is, so, in my opinion, it is impossible to say that the trial Judge has decided a point of law for the purposes of Article 26 unless the point of law as such has been definitely and precisely put before him. The point of law may have been raised by Counsel for the prosecution or defence, or it may have been raised by the Judge himself, but unless it has been expressly raised in such a way that it can be said to have been presented to his mind for decision, it cannot be held without doing violence to the ordinary meaning of words, that there has been a decision of a point of law. The word 'decision' according to any dictionary, connotes a positive act, and in my opinion it is not permissible, by means of any legal fiction, to turn it into a word with a negative meaning, or even with no meaning at all. With all respect it appears to me that Wallace, J., in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249. has used language which deprives the word 'decision' of all meaning. In fact, he has gone further; he has made 'decision' identical in meaning with 'omission to decide.' I cannot (I say it with deference) subscribe to the proposition that because it is the duty of the trial Judge to decide what evidence is admissible and what is not therefore the Judge has decided that every jot and tittle of the evidence found on the record is admissible.
65. The question whether the Judge has decided that any particular item of evidence is admissible, is a question of fact; if in fact the Judge has not decided a particular point, I am not prepared to admit that by some legal fiction he must be deemed to have decided it. Wallace, J., seems to have been very much influenced by his fear that even if the Judge disregarded the law altogether, or omitted or refused to sum on the accused would have no remedy. That fear, I need hardly say, is quite unfounded in fact; no Judge will ever behave in the way Wallace, J., describes. And, as several of my learned brethren have pointed out, it is unfounded in law also, since such conduct on the part of a trial Judge would enable (I might say, would compel) this Court to grant a certificate for appeal to the Privy Council under Article 41 of the Letters Patent. I agree with all my learned brethren that the second point certified by the learned Advocate-General never arose, nor could it have arisen, for the consideration of the learned trial Judge. That point therefore cannot be considered by this Court under Article 26 of the Letters Patent. As for the first point, since we know that the question of the admissibility of the evidence was not in fact raised before the learned trial Judge and was not in fact decided, I would hold that we are precluded from considering it. This application ought therefore to be dismissed, on the simple ground that the learned trial Judge did not in fact decide either of the two points or questions, or matters, of law referred to in the certificate of the learned Advocate-General.
Pandrang Row, J.
66. This application for review is made under Clause 26, Letters Patent of 1865 by virtue of a certificate granted to the prisoner under the same clause by the Advocate-General. A preliminary objection has been raised on behalf of the Crown to the certificate as well as to the application for review based thereon, and, in short, it is to the effect that both are incompetent because, there has been no decision on a point of law by the trial Judge. There can be no doubt that our decision on this preliminary objection must depend upon the correct interpretation of Clause 26, Letters Patent, which alone gives the Advocate-General power to grant a certificate, and gives us power to review the case. That clause contains the entire law on these subjects, and if reference has to be made to any other provisions of law or to the practice of Courts it can only be for the purpose of ascertaining the true import of Clause 26, Letters Patent. The relevant part of this clause runs as follows:
And we do further ordain that...... on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law.
67. The meaning is clear, and but for the elaborate argument addressed to us it would be unnecessary to lay stress on what is obvious. Even in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249. the majority judgment which was strongly relied upon by the Advocate for the prisoner it was held that Clause 26 applies only if the trial Judge has decided a point of law. Wallace, J., who pronounced the judgment of the majority of the Bench said:
It is next argued that the error must be in the decision of a point of law and that the section (Clause 26, letters Patent) only applies if the Judge has decided a point of law. That, of course, is so; but when it is further argued that the point of law must have been specifically put up and decided as a point of law I am unable to agree. There is no direct authority on the point.
68. It was nevertheless contended by the Advocate for the prisoner that we have no power to declare that a certificate granted by the Advocate-General is incompetent either on the ground that there is no point of law or on the ground that there was no decision, but that we are bound, even if we are of opinion that there was no decision, on a point of law, to go on with the case, or as he put it, 'to examine the matter.' It was, however, conceded by him that we are not wholly powerless in the matter, for he agreed that after hearing the application for review on the merits it would be open to us to say that there was no decision on a point of law and that we have therefore no power to review the case. His contention then comes to this, namely, that the objection cannot be raised or decided as a preliminary objection but only after the application for review is heard on the merits. In other words, it means that the judgment of the Advocate-General expressed in the certificate that a point of law has been decided by the trial Judge cannot be questioned by the other side and that it entitles the person to whom the certificate is granted to have his application for review argued on the merits, though the Court which hears the application is not bound by that judgment end can pronounce the certificate to be incompetent or misconceived and decline to pronounce any decision on the merits on the ground that no point of law had been decided by the trial judge.
69. It has to be mentioned in this connection that no objection was taken at the outset by the Advocate for the prisoner to the raising of the preliminary objection on behalf of the Grown, and that he was not prevented from referring to such part of the case on the merits as he thought necessary for the purpose of supporting his argument that there was a decision on a point of law. Even if this objection is well founded no harm has been done by the course adopted in the hearing. I am however of opinion that the Court is not bound to hear the application for review on the merits fully before pronouncing the certificate to be incompetent or misconceived, so long as no bar is placed on such reference to the merits of the case as is thought necessary for the purpose of supporting the certificate. It is a mere matter of procedure, and in the absence of any statutory enactment prescribing the procedure to be observed in the hearing of applications for review under Clause 26, Letters Patent, it is open to this Court to follow such procedure as it thinks fit, so long as it does not offend against the fundamental principles of justice, equity and good conscience. I may add that preliminary objections to certificates by the Advocate-General have been allowed in the past to be raised on behalf of the Crown without any objection being taken thereto in this High Court as in other Courts. The objection taken in the present case at a late stage must, in my opinion, be overruled.
70. I conclude therefore that the Advocate-General has power to give certificate under Clause 26, Letters Patent, only if a point of law has been decided by the trial Judge, and that in deciding whether a point of law has been decided by the trial Judge in this case the opinion or judgment of the Advocate-General is not binding on us, and that, it is open to us may, even incumbent upon us, to arrive at our own judgment in the matter. We have first to see what the certificate says about this matter. As it was originally given it did not even state that there has been any decision of a point of law, or that any point of law had been decided by the trial Judge; the words 'decision,' and 'decided,' were not to be found in it. Apparently, in order to amend this defect or to rectify this omission the Advocate-General amended his certificate during the hearing of this application and at the instance of the Advocate for the prisoner. The amended certificate no doubt contains the word 'decisions' in two places, but it does not, in my opinion, show with sufficient clearness what the 'decisions' were. Omitting whatever is not absolutely necessary for our present purpose, the amended certificate is to the following effect, (the amendments being enclosed in brackets):
1. Whether the alleged statements of the accused while in the custody of the Police........ are admissible tinder Section 27, Evidence Act... or... under Section 8, Evidence Act (or any other provision of law) and whether the fact that no exception was taken to the reception of this evidence during the trial, and the fact that some of these statements were elicited by Counsel for the accused... affects the point as to their admissibility, and the points of law arising out of the reception in evidence of these statements and the placing of the same before the jury (which are in my judgment decisions on points of law) require further consideration.
2.... In my judgment, whether there is an error of law or a misdirection or a non-direction amounting to an error of law by reason of the learned Chief Justice not directing the attention of the jury to the question, whether in the circumstances of the case the jury would draw a presumption under Section 114, Evidence Act, as to the continued possession of the articles by the deceased down to the date of her death, requires further consideration (and, in my judgment, the facts and circumstances mentioned above are and constitute a decision on a point of law under Clause 26, Letters Patent).
71. The certificate does not say clearly what points of law were decided and what the decisions were. The reason for this want of clarity is obvious; as a matter of fact, the trial Judge had not decided any of the points mentioned in the certificate, using the words 'decide' 'decision' in their ordinary sense. There was no decision by the trial Judge that the statements in question were admissible evidence or that a presumption under Section 114, Evidence Act, did or did not arise for consideration by the jury. There is nothing in the record of the trial from which it can be said that there was any decision on the points referred to in the certificate. It is not alleged that such an inference could be drawn from anything said by the Judge during the trial. What is alleged by the Advocate for the prisoner, and that is apparently what was meant by the Advocate-General, is that because the statements in question are found in the record of the evidence given at the trial, and some of them are mentioned in the charge to the jury (though without the least reference to their admissibility) the trial Judge roust be deemed in law to have decided that the statements were admissible evidence, and that because the trial Judge omitted to say anything about the presumption under a. 114, Evidence Act, he must similarly be deemed to have decided not to say anything about it. Actual decisions there were none; the record does not disclose them, and we have the statement of my Lord who was the trial Judge that he did not decide these points at any time during the trial. As observed by Westropp, C.J., in Reg v. Pestonji Dinshaw 10B.H.C.R. 75 Page of 10 B.H.C.R. [Ed.]:
The statements of the Judge, who presides at a trial, whether it be in a criminal or a civil case, is, as to what has taken place at the trial, conclusive. Neither the affidavits of by-standers, nor of jurors, nor the notes of Counsel, nor of shorthand writers, are admissible to controvert the notes or statement of the Judge: Rex. v. Grant (1835) 3 N & M 106 : 5 B & Ad. 1081, Everatt v. Yonells (1834) 4 B & Ad. 681 : 1 N & M 530 and Gibbs v. Pike (1842) 9 M & W 351 : 1 D (N s) 409 : 12 L.J. Ex. 257 : 6 Jur. 465 : 60 R.R. 749
72. The learned Chief Justice then quotes certain observations by Coleridge, J. and Martin, B. in Reg. v. Aaron Miller (1859) 27 L.J. (N.S.) 121 which lend support to his observations. It is needless to repeat them here or to labour this point further; it has not been pressed before us that there were any deliberate or conscious decisions by the trial Judge on the points in question. The argument pressed is that something undone and something else done should in law be deemed to be decisions by the trial Judge. The point of law regarding the admissibility in evidence of the statements was never present to the mind of the trial Judge: nor was it present to the minds of the Counsel appearing on either side. What happened was that the statements were spoken to by some of the witnesses, and some of them were mentioned, without any reference to their admissibility, in the charge to the jury. If objection had been taken at any time, and nevertheless the statements had been received as evidence or referred to as such in the charge, a decision that they were admissible could be inferred. By saying this I do not of course mean that what is not admissible in evidence becomes admissible if no objection is taken. What I mean is that, though the omission to object does not alter the law regarding the admissible and inadmissible evidence, it is an important and material factor to be taken into consideration in deciding whether there was or was not a decision about the admissibility of the evidence.
73. An objection means the Judge's mind was directed to the point of admissibility, and even though no oral decision is pronounced thereon, the reception of the evidence objected to is itself an actual decision. When no objection is taken it is impossible to infer that there was an actual decision, when no decision is pronounced and the Judge himself is not aware of having decided the point of admissibility. Then again, mere mention of some of the statements in the charge to the jury is no doubt a decision to mention them, but is not necessarily a decision that they are admissible evidence merely because the Evidence Act lays down that a judgment should be based only on relevant facts. As regards the second point relating to the non-direction about the presumption under Section 114, Evidence Act, the position is the same, if not actually worse, from the prisoner's point of view; this second point did not even arise for decision in view of the defence set up by the prisoner during the trial. A non-direction on a point which did not arise for decision in the case cannot, in my opinion, be said to be or constitute a decision on the point.
74. It is clear to my mind that there was in this case no decision by the trial Judge of any of the points mentioned in the certificate, using the word 'decision,' in its ordinary sense about which there is, and can be, no doubt. The word is a popular, and not a technical word, and its meaning can be found in any dictionary. When one speaks of any point decided by a Judge or of a decision by a Judge on any point one means a concluded opinion arrived at after applying his mind to it. It cannot possibly include anything of which the Judge is not even aware or conscious; mere inadvertence is not a decision whatever be the importance of the point not adverted to. Decision even by one who is not acting as a Judge necessarily implies some process of deliberation or ratiocination, however short, and the mind must necessarily be aware of it. What a decision is, is a matter of psychology and not of law as such, and perhaps this is the reason for the lack of any judicial interpretation of the word, except in G.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) referred to already.
75. The actual point decided in the above case was that there had been a serious misdirection by the trial Judge in his charge to the jury on a point of law, viz., the ingredients of one of the offences for which the prisoner was tried. That such a misdirection is a decision on a point of law is clear, and is not disputed by the Grown Prosecutor. It is obvious that a Judge, when he states to the jury what the ingredients of the offence charged are, has consciously decided in his mind what they are and expresses his concluded opinion thereon. In the judgment of Wallace, J. in that case, with which three other learned Judges agreed, are however, to be found certain general observations of the nature of obiter dicta on which much reliance is placed on behalf of the prisoner. These observations fall under two heads: viz, (1) the meaning of the word 'decision' and (2) the meaning of the words 'point of law.' If I may say BO, and I say it with the greatest respect, the observations under the first head are a mixture of what is unquestionable and what is questionable. For instance, Wallace, J. says:
The word 'decision' is not restricted to matters actually stated at the Bar for the direct decision of the Court, It includes all matters decided or which fall to be decided by the trial Court in the case.
76. The first of these two observations is, in my opinion, not open to doubt, otherwise a misdirection as regards the ingredients of the offence charged would not be a decision if no question regarding the same was raised at the Bar. The second observation is not sufficiently clear to me; if the first word 'it' refers to the word 'decision' in the earlier sentence, I fail to see how a decision can include matters decided; a decision and the subject or matter decided are two different things. If, on the other hand, the word 'includes' means 'refers to', I cannot agree that the decision may refer to matters which fall to be decided though not actually decided. The learned Judge goes on to say that a Judge's decisions:
Also include what he does not state, since a decision not to state is equally a decision.
77. Of course, if we assume that there is a decision whatever be its purport--there is a decision: in this sense, no doubt, a decision not to state is a decision. But does it follow that mere non-stating and no more is necessarily a decision? A decision is a decision, whatever may be its subject-matter or purport but is this self-evident proposition of any assistance in finding out whether in any particular case and on any particular point there was a decision? I think not. The further observation that if a trial Judge:
Admits and discusses certain evidence, he has decided to admit it, even though neither party raised the question of its admissibility,
78. Demands more detailed consideration. If the evidence is 'admitted' after a conscious conclusion has been come to by the trial Judge on the question of its admissibility no doubt he has decided a point of law. But if the Judge by pur-inadvertence fails to prevent the introduction of certain evidence by reason of his mind not being directed by himself or by one at the Bar to the question of its admissibility, can it be said that he has decided that question? In short, when he has given no thought to it can it be said that he has decided it? In the case of an ordinary man the only possible answer is there can be no decision of any point without any thinking about it. Is a Judge in a different position from the ordinary man in this respect? Prima facie one would be inclined to say that there would be more and not less thinking before a Judge comes to a decision than an ordinary man. It is urged, however, that the duties imposed on a Judge trying a criminal case with the aid of a jury by Sections 297 and 298, Criminal Procedure Code; makes all the difference. It is no doubt his duty inter alia:
To decide the admissibility of evidence'; and 'also in his discretion, to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties.
79. The argument based on this is that if the Judge omits to do his duty, in this matter, such omission, even though it was really due to inadvertence, must be deemed to be a decision that whatever evidence was actually given at the trial was admissible in law. It is further argued that because it is the duty of the Judge to sum up the evidence he must be deemed to have decided that every particle of evidence which he mentioned in his charge to the jury is admissible in law. These arguments rind support in the further observation of Wallace, J., that the word 'decision' includes non-directions to the jury even in the summing up on facts. The reason given is that if this is not so, then, even, if the Judge entirely omits to sum up or if he refuses to decide the point specifically put up to him, the accused has no remedy. This reason presupposes that Clause 26, Letters Patent, was intended to provide a remedy in such cases; otherwise, the absence of a remedy for the accused would not be relevant to the consideration of what is meant by the words 'decision' and 'decided' found in that clause which alone defines and provides the remedy by way of an application for review based on a certificate by the Advocate General.
80. A consideration of the relevant clauses of the Letters Patent shows that the only appeal, unrestricted in scope, allowed by the Letters Patent in criminal cases is the appeal referred to in the first sentence of Clause 41, i.e. to His Majesty in Council, that the right of such appeal to the High Court is negatived in express terms by Clause 25, and that the only remedy available in the High Court in cases of the present kind is only a limited right to have such points of law as are either reserved by the trial Judge, and or such points of law which have been decided by the trial Judge and certified by the Advocate-General, determined by the High Court by way of review, after which determination the High Court can alter the sentence of the trial Judge, and pass such judgment and sentence as shall seem right. I have not been able to discover anything in the Letters Patent from which it can be inferred that any remedy wider in scope than the words in Clause 26 would warrant was intended to be provided by it; in any case, it is clear that a right of appeal of the same amplitude as is given by Section 418, Criminal Procedure Code, was not intended to be given by Clause 26. Letters Patent. The assumption to the contrary underlies most of the reasoning in C.K. Narayana Ayyar v. Emperor (1930) M.W.N. 249 (F.B.) and most of the arguments addressed to us by the Advocate for the prisoner.
81. The language used in Clause 26, Letters Patent, is, in my opinion, clear and unambiguous, and it is not necessary even if it were permissible to seek any light from the state of the law in England regarding the Attorney-General's right to grant writs of error in criminal cases, and to discover by way of analogy the scope of the Advocate-General's right to grant certificates under Clause 26, Letters Patent. It is enough to say that the Attorney-General's right to grant writs of error, though originally recognised as being entirely within his discretion and the writ of error was then final and accepted by the Court without question was after Paty's case in 1705, made subject to the control of the Court both as regards the grant and the effect thereof, so far as misdemeanours were concerned, and that such writs of error, being confined to errors apparent on the record which consisted only of the arraignment, the plea, the issue and the verdict, could not be granted in respect of evidence wrongly admitted or misdirections in the charge to the jury. Proceedings by writ of error granted by the Attorney-General in England, and proceedings by way of review in certificate by the Advocate-General here, are so different from each other that no argument by analogy can be based on a comparison of the two.
82. The observations of Wallace, J. under the second head are to the effect that the words 'point of law' mean the same thing as the words 'matter of law' found in Section 418 Criminal Procedure Code, i, e., such mis-direction or non-direction as would permit an appeal under that section, and that therefore even a defect in summing up the evidence and indeed any infringement of the law laid down in Section 297, Criminal Procedure Code, would constitute a decision on a point of law. It may be there is not much difference between 'point of law' and 'matter of law,' though the latter seems to connote a wider category than the former, but the conclusion that wherever an appeal lies on a matter of law under Section 418, Criminal Procedure Code; there must have been a decision of a point of law is based really on the earlier observations as to the meaning of the words 'decision' and 'decided.' If these observations are right, it would no doubt, follow that even a defect in summing up the evidence in the charge would be a decision on a point of law, because it is the duty of the Judge to sum up the evidence properly and a failure to perform the duty is alleged. Whether the defect is material and amounts to misdirection is a point to be decided on the merits; for according to this view of what 'decision' means, any defect or any alleged defect however slight in summing up the evidence is a decision on a point of law; and whether that decision is wrong is to be determined only after a hearing on the merits. In dealing with the preliminary objection raised in this case we have only to determine whether there was a decision on a point of law, and not whether, if there was a decision, it is wrong. We cannot question the certificate or its propriety on the ground that the decision was right or that there was no need for any direction on the point. If the interpretation given to the word 'decision' by Wallace, J. is correct, no distinction can be made between the two points covered by the certificate of the Advocate-General at the present stage without hearing the application for review fully on the merits.
83. With the greatest respect, I find myself unable to accept this interpretation of the word 'decision' as correct, and I am clearly of opinion that there was no decision by the trial Judge on any of the points mentioned in the Advocate-General's certificate that the certificate is therefore misconceived, and that, in any case, we have no power or authority to determine these points under Clause 26, Letters Patent, Whether there were decisions on these points is a matter of fact and not of law, and I am convinced, even apart from what was stated by my Lord the Chief Justice that there were, in fact, no decisions by him on these points. In matters of fact we have no right, it seems to me to assume anything to have happened if we are convinced that it did not happen, in order to enable us to exercise a jurisdiction which otherwise we do not possess. This may appear at first sight to be a narrow view of our jurisdiction under Clause 26, Letters Patent, but if the words used in it are themselves such as would justify only that view, we cannot and should not take a wider or more liberal view. Our duty is to act according to the law as it stands and not according to our notions as to what it should be; otherwise, we shall be making the law suit our opinions instead of making our opinions suit the law.
84. If Clause 26, Letters Patent, had been intended to confer a right of appeal of the same scope as Section 418, Criminal Procedure Code, which, however, I seriously doubt the intention would have been made clear by employing the words 'misdirection' or 'error of law,' the legal significance of which was well known, instead of the words 'decision' and 'decided.' The intention of the clauses in the Letters Patent which relate to appeal or review in criminal cases tried in the High Court is clear; there was to be no right of appeal to the High Court, but only to His Majesty in Council; the High Court could, however, review the case for the purpose of determining such points of law as may be reserved by the trial Judge or such points of law decided by the trial Judge which are certified by the Advocate-General, Where there are no decisions on points of law by the trial Judge the obvious remedy is to apply to the trial Judge to reserve the points of law for the opinion of the High Court under the last sentence of Clause 25, Letters Patent, or under Section 434, Criminal Procedure Code; instead of availing himself of this obvious remedy, the prisoner chose to apply to the Advocate-General for a certificate and the Advocate-General chose to grant a certificate in respect of points which had not been decided by the trial Judge. The argument, therefore that the prisoner is left without any remedy under Clause 26, Letters Patent, when there has been no decision by the trial Judge is thus without force: The prisoner had a remedy but he did not avail himself of it. Whether the remedy is still available to him is not forms to say. I am, however, convinced that the remedy which he seeks in this application is misconceived and does not exist. I would, therefore, dismiss this application.