Derbyshire, C.J.
1. This is an application made on behalf of Cyril Bertram Plucknett for leave to appeal to a Bench of this Court from a conviction for murder recorded against him in the Sessions of this Court on 16th June and a sentence of death for the offence of murder passed upon him on that date. The accused was tried before Sen J. and a jury of nine, five of whom were Europeans and four Indians. The applicant is described as an Anglo-Indian. He makes his application under Section 449, Criminal P. C. The history of the matter is this. On 2nd May this year the applicant was living in a room with a bath-room attached in a block of buildings at 27-B Central Avenue. At about ten o'clock that night the durwan, in the course of his rounds, noticed the door of the room of the applicant open and the light on. He went in and found there the body of a man afterwards identified as that of Edward Gordon Jones who was also an Anglo-Indian. Jones was still alive, but there were marks of blood on his person; he was unconscious. The durwan, after receiving instructions from his employer, proceeded to the thana and gave information to the officer on duty there that one Anglo-Indian man was lying on the floor of Eoom No. 1-B of 27-B Central Avenue, with blood marks on his person. The report in the diary is that he did not know what was-the matter. The report further is that Sub-Inspector Maitra left on enquiry. The report is signed by Sub-Inspector Maitra and in the margin is the signature of the durwan Mohamed Syeed written in Nagri script. The police visited the room in question. They found there Jones in an unconscious condition battered about the head. Jones was taken to the hospital where he died at half past six the next morning. The applicant was not seen in those rooms then, but he surrendered at about 12-30' the next day to a policeman at Howrah Bridge. The applicant was charged with causing the death of Jones before the Chief Presidency Magistrate. On 3rd June the Chief Presidency Magistrate committed the applicant to take his trial at the Sessions of this Court. On the same day the mother of the applicant swore an affidavit which was presented to the Chief Presidency Magistrate to this effect:
I was married to Edwin Coomb Pluoknett, deceased, in 1889. Mr. Plucknett was an Englishman, born in Essex, England. Cyril Plucknett, (i.e. the applicant) is my son.
2. No further steps consequent upon that, affidavit were taken by or on behalf of the applicant before the Chief Presidency Magistrate. On 13th June the applicant was put up for trial in the Sessions of this Court before Sen, J. No application was made by the applicant or on his behalf to the Court that he should be tried under any of the provisions which are applicable to cases where there may be a racial conflict. The applicant was defended by Mr. J.P. Mitter, Barrister, and Mr. Mitter challenged various members of the jury-both European and Indian. Counsel for the Crown also challenged the jurymen. Eventually a jury was provided of which five members were Europeans and four Indians. The trial lasted from June 13 to June 16. There were three charges against the applicant: (1) murder (2) culpable homicide not amounting to murder and (3) voluntarily causing grievous bodily hurt. They were all in respect of the death of Jones. On 16th June the jury unanimously found the applicant guilty of murder and the Judge sentenced the applicant to death. The trial in the Sessions Court was under the provisions of the Letters Patent of 1865. 01. 25 of the Letters Patent provides:
There shall be no appeal to this Court from any sentence or order passed or made in any criminal trial before the Courts of Original Criminal Jurisdiction, which may be constituted by one or more Judges of the High Court. But it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of the High Court.
3. Clause 26 of the Letters Patent provides:
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.
4. On 18th June, two days after the conviction, an application was made to the Court for the transcript of the shorthand notes of the Judge's summing up. On 20th June, a copy of such transcript was handed to those who had charge of the applicant's case. On 23rd June an application was made to me by Mr. Mitter stating that the transcripts which had been provided were not accurate and asking for the matter to be gone into. Going into the matter it appeared that the learned Judge who tried the case had gone through the transcript, made corrections in it and signed it. Thereupon, on my instructions, the applicant's legal advisers were provided with a copy of the transcript of shorthand notes without any alterations or corrections of any kind. That second transcript was in the hands of the applicant's advisers on 30th June. so that the applicant's advisers had both the transcript signed by the Judge and the transcript which was not signed by the Judge, by 30th June. Now, it is to be noted that the learned Judge did not reserve any point or points of law for the consideration of this Court. On 11th July, an application was made on behalf of Cyril Plucknett to the Advocate-General under Clause 26 of the Letters Patent for a certificate by him that there was an error in the decision of a point or points of law. On 22nd July the Advocate-General after having heard counsel on behalf of the applicant, refused such certificate. So that the applicant having no appeal under the Letters Patent had no further opportunity of having his conviction considered by a Court of law. On 25th July an application was made on behalf of Cyril Plucknett to this Court for leave to appeal under Section 449, Criminal P.C., and it was ordered that that application should be heard on 1st August, when it duly came before this Bench. Ch. 33, Criminal P.C., contains special provisions relating to cases in which European and Indian British subjects are concerned. The first Section is Section 443 which provides as follows:
(1) Where, in the course of the trial outside a presidency town of any offence punishable with imprisonment, the accused person, at any time before he is committed for trial under Setion 213 or is asked to show cause under Section 242 or enters on his defence under Section 256, as the case may be, claims that the case ought to be tried under the provisions of this Chapter, the Magistrate inquiring into or trying the case, after making such inquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce evidence in support of his claim, shall if he is satisfied (a) that the complainant and the accused persons or any of them are respectively European and Indian British subjects or Indian and European British subjects or (b) that, in view of the connexion with the case of both a European British subject and an Indian British subject, it is expedient for the ends of justice that the case should be tried under the provisions of this Chapter, record a finding that the case is a case which ought to be tried under the provisions of this Chapter, or if he is not so satisfied, record a finding that it is not such a case. (2) Where the Magistrate rejects the claim, the person by whom it was' made may appeal to the Sessions Judge, and the decision of the Sessions Judge thereon shall be final and shall not be questioned in any Court in appeal or revision. (8) Where the Magistrate rejects the claim, he shall stay the proceedings until the expiration of the period allowed for the presentation of the appeal, or, if an appeal is presented, until it has been decided.
5. Section 444 provides:
For the purposes of Section 443, 'complainant' means any person making a complaint or, in relation to any case of which cognizance is taken under Clause (b) of Section 190, Sub-section (1) any person who has given information relating to the commission of the offence within the meaning of Section 151.
6. Then follows a Proviso that certain per. sons including a Public Prosecutor, public servant or a police officer shall not be deemed to be a complainant by reason only of the fact that a report under Section 173 relating to a case has been made by or through him. Section 449 provides:
(1) Where (a) a case is tried by jury in a High Court or Court of Session under the provisions of this Chapter, or (b) a case which would otherwise 'have been tried under the provisions of this Chapter is under this Code committed to or transferred 'to the High Court and is tried by jury in the High Court, or (c) a case is tried by jury in the High Court in a presidency town and the High Court grants leave to appeal on the ground that the case would, if it had been tried outside a presidency town, have been triable under the provisions of this Chapter, then notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters Patent of any High Court, an appeal may lie to the High Court on a matter of fact as well as on a matter of law. (2) Notwithstanding any. thing contained in the Letters Patent of any High Court the Local Government may direct the Public Prosecutor to present an appeal to the High Court from an original order of acquittal passed by the High Court in any such trial as is referred to in Sub-section (1). (3) An appeal under sub-section (1) or Sub-section (2) shall, where the High Court consists of more than one Judge, be heard by two Judges of the High Court.
7. The application here is made under Sub-section (1), Clause (c). Section 190, Sub-section (1)(b), provides:
Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate and any other Magistrate specially empowered in this behalf may take cognizance of any offence (b) upon a report in writing of such facts made by any police officer.
8. Section 154 provides:
Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall beentered in a book to be kept by such officer in such form as the Local Government may prescribe in this behalf.
9. Section 4, Sub-section (1), Criminal P.C., provides as follows:
European British subject means (i) any subject of His Majesty of European descent in the male line born, naturalized or domiciled in the British Islands or any Colony, or (ii) any subject of His Majesty who is the child or grandchild of any such person by legitimate descent.
10. It is contended by the applicant that in this case the complaint was made by a durwan - Mahomed Sayeed - an Indian British subject and that by reason of the provisions of Section 154 the information which he gave to the police at the police station constituted a complaint, That being so, the accused and the complainant were respectively European and Indian British subjects so that the matter comes within the provisions of Section 443, and would, if it had been tried outside the presidency town, have been triable under the provisions of Oh. 33 and therefore under Section 449(i)(c) leave can be obtained in this Court to appeal against the conviction and sentence both on matters of fact as well as on matters of law. The applicant has, in the first instance, before he cam bring into operation the provisions of Ch. 33, to show that he is a European British subject with, in the meaning of Section 4, Criminal P.C. I have already mentioned that an affidavit was sworn to by Mrs. Florence Plucknett, the mother of the applicant and filed in the Police Court on 3rd June but that no further steps were taken consequent upon that affidavit. Affidavits have been filed before us by Edwin Robert Plucknett, a brother of the applicant, Wilfred Trevor Plucknett, another brother of the applicant, Mrs. Florence Plucknett, and Dhirendra Kumar Das, with regard to the status of the applicant. With regard to the establishment of that status, in my view, it is for the applicant and those acting on his behalf to establish the fact in the same way as any other fact is established, namely to the satisfaction of the Court, according to law. The petitioner in his petition stated that he was born on 18th December 1910 at Jubbulpore and was the son of Edwin C. Plucknett, now dead, and Florence Plucknett. His brother Edwin Plucknett in an affidavit said that those facts were correct. Wilfred Trevor Plucknett, another brother of Cyril Plucknett, in an affidavit stated that Cyril was his brother of the same parents and filed a copy of his mother's marriage certificate. He stated that his father, E.C. Plucknett, was a European British subject. He annexed to his affidavit a certificate granted by the East Indian Railway to his father wherein his nationality was given as a European, That was a discharge certificate from the East Indian Railway in which after the word 'caste' comes the word 'European'. Mrs. Florence Plucknett states in her affidavit as follows:
I was married to Edwin C. Plucknett at St. John's Church, Mirzapore, Cyril Bertram Plucknett is my son of the aforesaid marriage and was born on 18th December 1910. I have learnt from my deceased husband and also from my sister-in-law Louisa Eleanor Plucknett bora on 9th March 1874 (who is an invalid residing at Bangalore) that my husband and my father-in-law Captain Thomas Plucknett were Englishmen bom in England.
11. The affidavit of Dhirendra Kumar Daa, merely stated that an affidavit was filed by Mrs. Florence Plucknett on 3rd June when, according to him, he made an application before the Chief Presidency Magistrate on behalf of the aforesaid prisoner claiming to be tried as a European British subject. But of that application having been made there is no record in the order sheet of the Chief Presidency Magistrate. When these proceedings began on 1st August, it was noticed that although there was the bap. tismal certificate of Cyril Plucknett, there was no birth certificate of Cyril Pluoknett. I enquired the reason for this and I was told by Mr. Mitter that he had recently learnt that there was such a certificate in the offices of the Diocesan Registrar in Esplanade Bow in Calcutta. I suggested that he should get it. The Registrar of the Diocese, Mr. Clough, a Barrister of this Court, who came into Court, offered that if there was such a certificate in his custody he would get it. He doubted whether any birth certificates were kept in his registers. The Court was adjourned from 12 o'clock till 2.30 to give the applicant's legal advisers an opportunity of procuring this certificate and certain other documentary evidence which, Mr. Mitter said, were required. Mr. Mitter stated that there were certain letters and certain documents in the offices of the Port authorities adjacent to the Court. The Court thereupon issued a subpoena and directed the Registrar of the Original Side to see if the documents specified by Mr. Mitter happened to be in that particular office and to have them brought to the Court. Those documents, which included two registers of the Bengal Pilot Service and certain correspondence between the Government of India and the Government of Bengal and persons interested in the Pilot Service between the years 1865 and 1875 were brought to the Court and made available for the use of the applicant. The Registrar of the Diocese was unable to produce the birth certificate which Mr. Mitter had referred to. A search confirmed the view expressed by Mr. Clough that such birth certificates were not kept by the Diocesan Registrar.
12. Mr. Mitter then proposed to put in evidence certain photographs said to be the photographs of the applicant's father, E.C. Plucknett and his grandfather, Thomas Plucknett. To prove these photographs Mrs. Florence Plucknett was called and gave evidence. Her evidence was that she was married to Edwin Coomb Pluoknetfe who sometimes was called Edwin Charles Plucknett, that he was the son of Thomas Plucknett who was a pilot, that she was married to her husband near Allahabad on 29th September 1897 at St. John's Church, that Cyril Bertram Plucknett was her son born on 18th December 1910 and that Edwin Coomb Plucknett was his father. She stated that she never knew Thomas-Plueknett; he died when her husband was quite a baby, but her husband's sister gave her a photograph stated to be that of Thomas Plucknett along with the family Bible which she produced and that this sister-in-law was Louisa. She also produced a group photograph of heiself, her husband and children taken in 1912. She stated that Louisa was older than her husband, but has not been heard of for many years. She was last heard of in Bangalore in 1926. She said that her husband was three years older than herself and that he had told her that he was born in Essex in England in 1876: that on the back page of the Bible the entries of the birth of her family were made by her husband when he received the Bible from his sister Louisa, that she knew one of her husband's brothers Edward who died in 1934, and who lived at Asansol as. a Guard on the Railway. She also produced a photograph of a woman who, she said, was the wife of Thomas Plucknett. Her name was Mary; her surname was unknown. It was suggested that a statement in an affidavit by the accused or one of his relatives was sufficient to prove that the accused was either the child or the grandchild of a European subject of His Majesty born, naturalized or domiciled in the British Isles or any colony within the meaning of Section 4 and the case in Gallaghar v. Emperor : AIR1927Cal307 was cited. At page 54 of the report the judgment of Sanderson C.J. set out as follows:
Gallaghar has filed an affidavit, in which he states that he was born on 3rd September 1899 in Bombay and that he is the legitimate son of Michael Patrick Gallaghar and Ruth Constancia Gallaghar; to that affidavit is attached a certified copy of the certificate o{ marriage, which showa that Michael Patrick Gallaghar and Ruth Constancia Jones were duly married at St. Thomas' Church, Middleton Row, Caloutta, on 4th July 1897, that the parents of M. Patriok Gallaghan were Martin and Ann Gallaghar and the parents of Ruth Constancia Jones were John and Constancia Jones.
13. The learned Chief Justice stated that 'there was sufficient proof that Gallaghar was a European subject within the meaning of the Criminal Procedure Code.' I caused the file relating to the case of Gallaghar to be obtained. I find that the affidavit which was before the learned Chief Justice is not set out in full in the law reports. Gallaghar stated:
I was born on 3rd September 1899 in Bombay and am a legitimate son of Michael Patrick Gallaghar and Ruth Constancia Gallaghar. My father Michael Patrick Gallaghar was born in County Golway, Ireland, and came out to India attached to the old 95th Derbyshire Regiment. My father married my mother in Calcutta at the St. Thomas' Church on 14th July 1897. I enlisted in the Army as an European on the 23rd day of January 1918.
14. A copy of the discharge certificate was set out. That affidavit is much more specific than the passage in the report and contains statements easily verifiable. It will be noticed that Gallaghar was able to state the place in the British Isles from which his father came. In this case I asked Mrs. Plucknett if she could say in what part of Essex her husband was said to have been born. She could not say that; she had not heard. That vagueness combined with the fact that an attempt has been made by the applicant to rely upon his descent from Thomas Plucknett as being born in the British Isles leads me to doubt the evidence of Mrs. Plucknett which I believe was given in good faith. I am satisfied that Cyril Plucknett is the legitimate son of Edwin Coomb Plucknett and Florence Mary Plucknett. Was Edwin Coomb Plucknett the legitimate son of Thomas Plucknett? A certificate of baptism of Edwin Coomb Plucknett has been put in and that states that he was baptized on 24th January 1885 at Chinsura and was the son of Thomas Edwin and Mary Plucknett. The abode of the child was Chinsurah and the abode of the father and the mother was in Calcutta and the profession of the father was stated to be that of a pilot; further, that he was born on 6th September 1876, some eight or cine years earlier.
15. Mr. Mitter produced from the Port Office, amongst other documents, a book which is called the 'Register of Marriages and Baptismal Certificates of the Bengal Pilot Service.' In it are entries relating to persons in that service. There is an entry in that book on 12th March 1862 which records 'T. Plucknett.' Then in the next column 'Thomas Plucknett and Mary Louisa Mahon.' Then in the column meant for the names of children 'Harry Mendham'; 'date of birth: 22nd July 1861.' That is an entry made over seventy-five years ago presumably by a person who is now dead. It appears to be an entry made in the ordinary course of book-keeping. A clerk of the Port Office who is under the control of the Mercantile Marine Department stated that these books were kept for the purposes of family pension fund matters. It appears from that entry that that was an entry made regarding the contingent liability of the Pilot Service in respect of the child. Harry Mendham and I can only infer from that that Thomas Plucknett and Mary Louise were married. In my view the applicant is the legitimate grandson of Thomas Plucknett who was a pilot in the Bengal Pilot Service about the year 1862.
16. The question is what was the status of Thomas Pluoknett, a pilot? From another book produced from the Port Office showing the names of officers in the Bengal Pilot Service, it appears that T. Plucknett joined the Bengal Pilot Service on 18th September 1853, that there was a casualty on 24th October 1862 and that T. Plucknett was dismissed. It appears from the affidavit of Edwin Robert Plucknett, brother of the applicant, that Captain Thomas Plucknett died in 1877, was buried in the Lower Circular Road Cemetery and that the inscription on the tombstone is: 'In memory of Captain Thos. Plucknett, died 7th Feb. ruary 1877, aged 39 years erected by his friends.' It would appear therefore that when Thomas Plucknett joined the Bengal Pilot Service in 1853 he was 15 years of age. It was contended on behalf of the applicant by Mr. Mitter that at that time only European British subjects were admitted to the Bengal Pilot Service and he relied upon certain bundle of papers which had been produced from the Port Office as showing that fact, because there was a correspondence relating to the matter. He argued therefore that Thomas Plucknett must have been a European born in the British Isles. But on a perusal of those papers it appears that the contrary is the fact. There was a memorial from certain persons, whose names were signed, dated 1st February 1883, addressed to the Right Hon'ble the Earl of Kimberley, Secretary of State for India, entitled 'The Memorial of the Board of direction of the Eurasian and Anglo-Indian Association.' In it the memorialists asked:
That young men born and educated in India may be admitted to the Pilot Service as heretofore, but that, if such young men are to be excluded from the Pilot service on the ground of want of proper training in seamanship, arrangements may be made by Government for providing the youth of this country with suitable training ships as is done for the youth of England.
17. The next paper in this bundle is a copy of a letter from Mr. W.C. Madge, Secretary to the Eurasian and Anglo-Indian Association, to the Secretary to the Government of India, Home Department, dated 21st May 1879 in which the writer submits 'for the consideration of His Excellency the Viceroy' the following representation on the recent exclusion of Anglo-Indian and Eurasian lads, who have been educated in 'this country, from the Bengal Pilot Service.' It goes on to say:
For more than twenty-five years it has been the practice of the Government of Bengal to admit young men to the Pilot Service from the public schools of Calcutta and if inquiry were made into the matter, it would be found that men of this class have done good service to the public, have won the esteem of their fellows, and have been highly spoken of by former Heads of the Marine Department. The names of Messrs. Bartlett, Cleghorn. Cearns, Cox, Smart, Spencer, and Keymer may be mentioned as those of Eurasians, most of whom have been educated in the country, and all of whom have taken the highest rank in the Pilot Service for personal character, physical energy and professional skill.
18. Further in the letter occurs this passage:
In an address delivered to the pupils of St. Xavier's College in December last, His Honour the Lieutenant-Governor of Bengal declared that the Bengal Government had at one time been willing to admit into the Pilot Service young men who had been educated in Calcutta, but had afterwards been compelled to bring young men out from training ships in England, because young men in Calcutta were unwilling to enter the service. The Board hereupon addressed His Honour the Lieu tenant Governor, and, after representing certain facts, ventured to solicit from the Bengal Government a statement of the qualifications considered necessary in pilots.
19. The tenor of that letter was repeated in the one dated 9th May 1882 from Mr. Madge, to the Assistant Secretary to the Government of India, Department of Finance and Commerce. It appears clear therefore that for more than twenty-five years previous to May 1879, that is from before 1855, boys had been admitted into the Bengal Pilot Service from the public schools of Calcutta. Also in the memorial of 1st February 1883, the names of such pilots are set out and amongst them are the names mentioned in the letter. Edmond Bartlett was admitted in 1820. T. Bartlett in 1824, Keymer in 1827, Cearns in 1835, another Cearns in 1843, and Cox in 1843. All the names mentioned in the letter were those of Eurasians or Anglo-Indians, It appears to me that Mr. Mitter's argument, that because Thomas Plucknett was in the Bengal Pilot Service, he must be a European British subject, fails. Nothing appears to be known as to the origin of Thomas Plucknett. One would expect that his descendants would know what part of the British Isles he came from, if he came from there. But there is no information on that point. From the family Bible that has been produced it is clear that a son, Harry Mendham Plucknett was born in 1861 and he must have grown up to years when he could discuss these matters with his father before his father died. One would expect that if Thomas Plucknett came from some part of the British Isles, Harry Mendham Plucknett would have known about it and he would have passed it to his brothers and Edwin Coomb Plucknett would have known that. But there is no information on that matter. It seems to me that owing to the absence of that information showing that he came from the British Isles and having regard to the fact that he entered the Pilot Service at the age of fifteen when boys from schools here had been admitted into that service, it is more likely that he was a boy who was born in Calcutta, it may be of British parents or it may not be. But to my mind it is not established that he was born in the British Islands. In fact there is no evidence that he was. Mrs. Plucknett said that she had heard from her husband that her husband was born in Essex. But she could mention no place in Essex as his birth place. That statement seems to me to be extraordinary if it is correct. One cannot accept it for other reasons. It is said that Edwin Coomb Plueknett was born in 1876 - it is suggested in Essex. Now, his father Thomas Plucknett died in 1877 and he died in Calcutta and from the inscription appearing on his tombstone it would appear that he was not too well off as that memorial was erected not by his family but by his friends. He had been dismissed from the Pilot Service in 1862. He may have had and probably had other employment. In those days it was a long voyage to England and an expensive one and under the circumstances it seems to me to be unlikely that his wife would go to England the year before for confinement which resulted in the birth of Edwin Coomb Plucknett.
20. One other matter appears to me to be interesting and it is this, that Edwin Coomb Plucknett was, according to the baptismal certificate to which I have referred, baptised at Chinsurah in 1885, some eight or nine years after he was born. If he had been born in England, the probabilities are that he would have been baptised in England and there would have been no need for his baptism at Chinsurah. There is one other matter which appears to bear that out. In the family Bible which was produced by Mrs. Plucknett there is set out in the front fly leaf the names of the children of Thomas Plucknett. Harry Mendham Plucknett is recorded to have been born on 22nd July 1861, at 20 minutes to 3; Charles Section Plucknett on 16th September 1867 at 91/2 A.M.; Edward Symons Plucknett on 19th June 1869 at 3 P.M.; Louisa L. Plucknett on 9th March 1874 at 5-45 A.M.; and Edwin Coomb Plucknett on 6th September 1876 at 6 A.M. Harry Mendham Plucknett was born in this country apparently. There is no record here of Edwin Coomb Plucknett being born in England and it seems to me very likely that if he had been born in England that fact would have been recorded in the family Bible. For these reasons, I am unable to accept the evidence that Edwin Coomb Plucknett was born in England. I am further unable to accept the evidence that Thomas Plucknett was born in England. It seems to me as far as the record can show that both Thomas Plucknett and his son Edwin Coomb Plucknett were born in this country. Therefore the applicant is not the child or grandchild of a subject of His Majesty of European descent in the male line born, naturalized or domiciled in the British Islands or any colony. That being so, he is not a European British subject within the meaning of Section 4, Criminal P.C., and does not come within the provisions of Chap. 33 of that Code. Therefore he is not entitled to those privileges and his claim to have his appeal admitted fails for that reason.
21. Mr. Mitter on the second day's hearing asked that the hearing of this application should be postponed for another fortnight for the purpose of allowing him to obtain evidence from England relating to the birth of Thomas Plucknett : possibly that would include enquiries as to the birth of Edwin Charles Plucknett. I was of the opinion that the application should be refused. The question of using the status or the alleged status of Cyril Bertram Plucknett for the purposes of Chap. 33 of the Code had clearly been considered by the legal advisers of the applicant on 3rd June of this year when the applicant was before the' Chief Presidency Magistrate. It was dropped; no steps were taken under Chap. 33 or under Section 528-A or Section 275, Criminal P.C. Had those steps been taken on 3rd June or thereabouts ample material would have been available if in existence for the purpose of raising this plea. But those steps were not taken and I can only conclude that they were not taken for good reasons. It seems to me that those steps not having been taken it would be wrong now to interfere with the course of justice and delay the administration of justice if such a plea were admitted at this time. The applicant throughout these proceedings has had every opportunity of bringing such evidence before this Court. In my opinion it would not be right for this Court to postpone the hearing of this appeal to admit of further delay. I enquired of Mr. Mitter whether there was in fact any racial prejudice in this case. Mr. Mitter said that he was not able to point to any. I myself have been through the record of the evidence in this trial and I am not able to point to any either. This application appears to me to have been brought as a last despairing effort to bring the proceedings once again before the Court although the provisions of law do not allow of it. In my opinion this application must be refused.
Costello, J.
22. I entirely agree with the judgment which has just been delivered by my Lord the Chief Justice. In my opinion there is no evidence before the Court which gives any real indication whatever as to the origin of Thomas Plucknett, the grandfather of the present applicant. Moreover, as the learned Standing Counsel pointed out, even if there had been some evidence to show that Thomas Plucknett himself was born in England that would not be sufficient to bring the applicant within the provisions of Section 4, Criminal P.C., as regards the definition of 'European British subject' which appears in Sub-section (i) of that Section. The definition is as follows:
(i) any subject of His Majesty of European descent in the male line born, naturalized or domiciled in the British Islands or any Colony, or (ii). any subject of His Majesty who is the child or grandchild of any such person by legitimate descent.
23. That means that in order that the applicant should bring himself within the four corners of that definition, he will have to show that his grandfather was of European descent. This point was touched upon in Alexander Ruffe v. Emperor (1912) 6 P.R. 1912 Cr., which was decided in the Punjab Chief Court where in the course of the judgment at p. 198 we find this:
It is true that the appellant did prefer a claim before the Committing Magistrate, to be tried as an European British subject, but it is equally dear from his written statement, filed in support of that claim, that he is not an European British subject as defined in Section 4(i), Criminal P.C. His father was an Indian subject of His Majesty, and the mere fact that appellant was born at Constantinople does not make him an European British subject.
24. Then follows this passage:
There is no evidence on the record to show that he or his father or grandfather was domiciled in the United Kingdom or in any of the European, American or Australian Colonies or Possessions of His Magesty or in the Colony of New Zealand or in the Colony of the Cape of Good Hope or Natal. We are, therefore, of opinion that his claim to be triet as an European British subject was rightly rejected by the committing Magistrate.
25. Mr. J.P. Mitter on more than one occasion in the course of his argument in this case admitted or rather conceded that the provisions of the various Sections in Ch. 33, Criminal P.C., were never intended to apply to a case such as the present. That Chapter was only designed to apply to cases of racial distinction where there is a real clash between a European as defined in the Code on the one side and an Indian on the other, or vice versa. Mr. J.P. Mitter has quite clearly and definitely stated that it is only by bringing himself literally et verbis within the words of the relevant Section of Ch. 33 that he could possibly hope to succeed on this application. That being the position, and having regard to the course of events subsequent to the trial and conviction of Cyril Bertram Plucknett, in my opinion, it behaves this Court to scrutinise with the greatest care and meticulousness the basis of the arguments put forward by Mr. Mitter. The foundation of a right to obtain an appeal against the verdict and sentence given at a trial in the Sessions in this Court contrary to the normal rights of a convicted person as laid down in the Letters Patent of this Court depends primarily and fundamentally upon the status of the applicant. I am quite clearly of the opinion that the status of Cyril Bertram Plucknett is not such as enables him to take advantage of the exceptional privileges and rights provided for in Ch. 33, Criminal P.C. In addition to the question of status Mr. Mitter endeavoured, rather prematurely, to surmount a number of other obstacles which, in my opinion, would still have stood in his way even if he-had succeeded in establishing on behalf of his client the necessary condition precedent as regards status. Section 449, Criminal P.C.: (which provides for the abnormal procedure we are now considering) so far as is relevant for our present purposes, says:
Where a case is tried by jury in the High Court in a presidency town and the High Court grants, leave to appeal on the ground that the case would, if it had been tried outside a presidency town, have been triable under the provisions of this-Chapter, then notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters. Patent of any High Court, an appeal may lie to the High Court on a matter of fact as well as on a matter of law.
26. The chronology of the various steps taken in this case, as outlined by my Lord, shows that at every stage there was unwarrantable delay. I would only refer to the fact that Mr. J.P. Mitter stated in answer to a question pub by me that as early as the 30th June (if not before, which seems highly likely) he was armed with all the documents required for the purpose of seeking assistance, on behalf of his client from some legal authority. So far from utilizing that position however he delayed no less than 11 days before he even attempted to obtain a fiat from the Advocate-General of Bengal which would have enabled him, if granted, to bring before this Court matters of law to be reviewed by this Court. It was not until 25th July that the application out of which the present proceedings arise was made to my Lord, the Chief Justice. One can only deduce from the chronological history of this matter that Mr. J.P. Mitter, as indeed he has admitted before us, never really had any confidence that an application of this kind in the circumstances of this case could possibly be successful, because otherwise one would have expected that proceedings under Section 449 would have been the first means resorted to, having regard to the fact that Cyril Bertram Pluoknett was lying under a sentence of death, for if an application under Section 449 had been successful, it would not merely have been a matter of this Court reviewing the decision of the trial Judge on question of law, but the appellant would have had the right to have the whole case reconsidered by this Court on matters of fact as well as on matters of law. As I have stated, having regard to the circumstances, particularly having regard to the fact that the applicant bases his whole case upon the fortuitous circum. stance that it happened to be an Indian durwan who went to the police station and stated that an Anglo. Indian was lying in a certain house with blood marks on his person, it is, in my opinion, not only incumbent upon us, but imperative that we should look very carefully at the precise provisions of Section 449. I have read out the provisions so far as they touch upon this case and it seems to me that this Court can only grant leave to appeal as laid down in Sub-section (1)(c) on the unique ground that the case would, if it had been tried outside a presidency town, have been triable under the provisions of this Chapter, that is to say Ch. 33. Now, the conditions which have to obtain for a case to be tried under Ch. 33, in a place outside a presidency town are specified in Section 443 where it says:
(1) Where in the course of the trial out side a presidency town of any offence punishable with imprisonment, the accused person, at any time before he is committed for trial under Section 213 or is asked to show cause under Section 242 or enters on his defence under Section 256, as the case may be, claims that the case ought to be tried under the provisions of this Chapter, the Magistrate inquiring into or trying the case, after making such inquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce evidence in support of his claim, shall if he is satisfied: (a) that the complainant and the accused persons or any of them are respectively European and Indian British subjects, or (b) that, in view of the connexion with the case of both an European British subject and an Indian British subject, it is expedient for the ends of justice that the case should be tried under the provisions of this Chapter, record a finding that the case is a case which ought to be tried under the provisions of this Chapter, or if he is not so satisfied, record a finding that it is not such a case.
27. Picking out the dominating part of that Section we get this: Where in the course of the trial outside a presidency town of any offence punishable with imprisonment, the accused person claims that the case ought to be tried under the provisions of this Chapter, the Magistrate inquiring into or trying the case, after making such enquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce evidence in support of his claim, shall if he is satisfied, record a finding that the case is a case which ought to be tried under the provisions of this Chapter, or if he is not satisfied, record a finding that it is not such a case. Although there are three cases, which I do not propose to examine in detail, Martindale v. Emperor : AIR1925Cal14 , A.H. Turner v. Emperor : AIR1925Cal673 and Queen-Empress v. Grant (1888) 12 Bom. 561, which seem to take a contrary view I am bound to say, with all possible deference and respect to the learned Judges who dealt with those cases, that there seems to be two fundamental conditions precedent for the trial of a case outside a presidency town under the provisions of Ch. 33, namely that the accused person shall claim that the case ought to be tried under the provisions of Ch. 33 and that the Magistrate shall make an enquiry and record a finding that the case is a case. which ought to be tried under the provisions of the Chapter. In the present case, as my Lord the Chief Justice has pointed out, the question of the status of Cyril Bertram Plucknett was mooted before the learned Chief Presidency Magistrate. There is an affidavit by the pleader who appeared in the Police Court on behalf of the accused, whose name is Dhirendra Kumar Das, in which he says:
On the 3rd day of June 1988 I made an application before the Chief Presidency Magistrate on behalf of the aforesaid prisoner claiming to be tried as an European British subject and in support of that filed an affidavit by Mrs. Florence Plucknett.
28. No doubt an affidavit by Mrs. Florence Plucknett was filed before the learned Chief Presidency Magistrate and a note of that fact was made by him on the order sheet. We find under date 3rd June 1938 order No. 6: 'One prosecution witness examined. Charge explained to the accused and committed to Sessions.' There had previously been 20 witnesses examined on behalf of the prosecution. The order concludes 'mother of the accused swears an affidavit regarding the parentage of the accused.' As against the statement made on oath by the pleader, there is a definite contradiction in the affidavit filed in these proceedings by Sarashi Kumar Brahmachari, Inspector of Police who was the officer in charge of the Bow-bazar Police Station. He says:
The investigation of the case was conducted under my supervision and I was present throughout the proceedings before the committing Magistrate. I also attended the High Court during the trial.
29. Paragraph 6 of that affidavit says:
With regard to the contents of para. 2 of the petition I have inspected the record relating to the marriage of the petitioner kept at the Church of our Lady of Happy Voyage, Howrah, wherefrom it appears that the petitioner was described as an Anglo-Indian at the time of the said marriage which was solemnized on the 26th day of August 1935,
30. Then in para. 7 the Inspector states:
With regard to the statements contained in para. 3 of the said petition I do not admit the same. The only step taken in this direction was that an affidavit was sworn to by the mother of the petitioner.... Thereupon the learned Chief Presidency Magistrate made the following record in the order sheet.
31. He then set out the order to which I have already referred. Then he continues that the learned Magistrate recorded no finding that he, Cyril B. Plucknett, was a European British subject. Then he says:
I crave reference to the original affidavit and the order sheet which form part of the records of this Hon'ble Court. And at the trial the petitioner did not claim to be tried as a European British subject. On the contrary he exercised the right of challenging the jurors so far as Europeans were concerned.
32. It seems perfectly clear from the order recorded by the learned Chief Presidency Magistrate that the accused never claimed that the case ought to be tried under the provisions of Chap. 33 and most certainly the learned Magistrate did not make any enquiry into the status of the accused and, accordingly, he did not record any finding as to whether the case was a case which ought to be tried under the provisions of Chap. 33 or whether it was not. Moreover, it seems perfectly plain and beyond dispute that when the case came on for trial at the High Court Sessions no claim even then was put forward that this was a fit matter to be dealt with under the provisions of Chap. 33 and the official records kept by the Clerk of the Crown show that the composition of the jury was arrived at not 'by exercising the special rights given to persons who claim to be tried as European British subjects, but by exercising the ordinary right of challenge which is invariably exercised by counsel for the defence in criminal cases in the Sessions in this High Court. I am therefore definitely of the opinion that what to my mind are the fundamental conditions precedent to any proceedings under Section 449, Criminal P.C., were never fulfilled. In so far as any kind of claim was put forward on behalf of the accused when he was before the learned Magistrate that he was a European British subject, it was done at the most in a very half-hearted manner and certainly was not persisted in either before the Magistrate or relied upon at the Sessions in any sense whatever. In those circumstances, in my view this matter does not come within the ambit of the provisions of Chap. 33 at all. Moreover, if it could by any process of casuistry be said that the necessary claim was made in the initial stages of the proceeding, in my view any rights which the accused person might have had in consequence of that nebulous claim, were eventually waived by him. In this connexion I only proposed to refer to one case, Queen-Empress v. Grant (1888) 12 Bom. 561 which although was heard long before the present provisions of Chap. 33 came into existence, does indicate that it is possible for a European British subject to waive his right to be dealt with as such.
33. There is one other matter on which I desire to say a few words because it was argued by Mr. J.P. Mitter at very great length, and that is this. Even upon the hypothesis that the applicant could conceivably be held to be a European British subject within the strict terms of the definition of Section 4, Criminal P.C., there still remains the question whether that European British subject had an antagonist, if I may use the expression, in the shape of a complainant within the meaning of the definition of that expression given in Section 444, Criminal P.C. That Section says:
For the purposes of Section 443, 'complainant' means any person making a complaint or, in relation to any case of which cognizance is taken under Clause (b) of Section 190, Sub-section (1) any person who has given information relating to the commission of the offence within the meaning of Section 154.
34. Then there is a Proviso excluding certain persons. Now, Mr. J.P. Mitter argued for a considerable time yesterday upon the basis that Section 154 was a relevant Section. Then suddenly we are told today, as indeed the fact is, that Section 154 has no application in Calcutta, and therefore it is not relevant at all in a case arising in Calcutta. In the course of the argument I asked Mr. Mitter whether he was founding his endeavour to come within the provisions of Chap. 33, Criminal P.C., upon the action or actions of the durwan Mahomed Sayeed, and he told us quite definitely that he was relying solely upon what the durwan did as constituting the durwan, a complainant within the meaning of Section 444. My Lord, the Chief Justice, has referred to the entry which was made in the Police General Diary under Section 8, Calcutta Police Act, on 2nd May 1938. The entry says this:
Md. Sayed, a durwan of 27-B Central Avenue, came to the police station and reported that one Anglo-Indian man is lying on the floor of room No. 1-B of the above premises with blood marks on his person. He did not know what was the matter. ('He' of course refers to the durwan.) Sub-Inspector Moitra left on inquiry.
35. Mr. Mitter would have us take the view that that represents a complaint and the fact that it was made elevated the durwan into the position of being a complainant for the purposes of Section 443, Criminal P.C. In my opinion although it is not necessary definitely to decide the matter for our present purposes it cannot with any real accuracy be held that a person such as a durwan or anybody else who almost by chance - certainly fortuitously - goes to a police station and makes a statement of the kind which can be recorded in a form found in this general diary book is a complainant for the purpose of Ch. 33. Mr. J.P. Mitter quite frankly conceded that if we hold any such thing it would lead to absurd consequences: such for example as the illustration I put to Mr. Mitter of a small girl or a small boy, seeing two men fighting, running into a near by police station and recording the fact that a fight was in progresa becoming a complainant and so bringing a case within the ambit of the provisions of Ch. 33. In the present instance, it is to be observed that the durwan made no report that any offence was being committed. On the contrary, he merely said that a man was lying on the floor of a room with blood marks on his person. It need scarcely be said that there might be a hundred and one reasons for that state of things none of them having anything whatever to do with the commission of any offence. Moreover, the durwan expressly disclaimed any know, ledge of what was the matter. He merely reported the fact that a man was lying upon the floor with blood marks on his person. It is interesting to observe that when the case was ultimately 'put up,' to use an expression which is in common use in this country, a chalan was made out in this form: 'Report of serious case of Section H. Town on 23rd May 1938.' Col. 1 is, name and address of complainant. Under, neath this is written - Inspector S.K. Brahmachari of S.H. The name of the accused person is given as C.B. Plucknett, son of E.C. Plucknett of 27-B Central Avenue. The charge was that of murder. Inspector Brahmachari is there officially described as the complainant.' That leads me to refer to the Proviso to Section 444 of Ch. 33 which reads as follows:
Provided that a Public Prosecutor, a public servant, a member, officer or servant of any local authority, a railway servant as denned in Section 3, Railways Act, 1890, or an officer or servant of any company, association or other body to which the Local Government may, by general or special order published in the Local Official Gazette declare the provisions of this Section to apply shall not by reason only of the fact that he has made a complaint of or given information of, an offence in his capacity as such Public Prosecutor, public servant, railway servant, member, officer or servant, be deemed to be a complainant within the meaning of this Section.
36. Then follows this very important provision:
Nor shall a police officer be so deemed by reason, only of the fact that a report under Section 173 relating, to a case has been made by or through him.
37. It seems to follow from that that even the Police Inspector cannot rightly be deemed to be a complainant for the purposes of the provisions of Chap. 33 and so it seems to me that if a Police Inspector who in an official document was described as 'the complainant' is not 'a complainant' for the purposes of the Chapter, a fortiori the durwan or any other adult or child who gives information of the kind recorded in the general diary in the case ought not to be considered as a 'complainant' for the purposes of Chap. 33. This Chapter was obviously only designed to meet circumstances such as those which existed in Staya Narain v. Emperor : AIR1928Cal675 , which was decided by this Court in the year 1927. In my view, to accept the argument put forward by Mr. Mitter, apart altogether from the fundamental question of status, would be not only to reduce the provisions of Chap. 33; to an absurdity but to cause a perversion of the course of justice. It would bring about a condition of things which never could even in the remotest degree have been contemplated by the Legislature at the time when the present Chap. 33 was put into the Criminal Procedure Code by the Criminal Law (Amendment) Act, 1923 which is described as the Racial Distinction Act (Act 12 of 1923).
38. I conclude by saying that considering the interval of time which elapsed between the date of the conviction and sentence on the one hand and the date on which this application was made on the other, I think there is some doubt, having regard to the decision in Thomas v. Emperor (1926) 13 A.I.R. Cal. 1203, whether this application lay at all in view of the provisions of Article 155, Limitation Act, read with Article 150 of that Act, despite the decision given in Emperor v. Harendra Chandra : AIR1925Cal384 and of course with all possible respect to the learned Judge who gave it. In my opinion leaving aside altogether the failure to prove the status of the applicant as a British European subject this application is wholly misconceived.