Vol. 12 · pages 471–475

450 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Section 188 The answer is yes. Provided 1. That he is a Native Indian Subject of the H. M. 2. That he is a British Subject and has committed an offence in the territories of any Native Prince or Chief in India. 3. That he is a servant of H. M. (whether he is British Subject or not) and the offence is committed in the territories of any Native Prince or Chief in India. 4. That such offender is found in British India. N. B.— S. 188 confers jurisdiction to try offences committed in foreign territory, but not on High Seas. 19 Bom. L. R. 527. * * * What is of which cognizance is taken ? What the Court takes cognizance of is the offence, and not the fact that a particular person is alleged to have committed that offence. Reasons (1) When, during the course of proceedings which a Court has commenced by cognizance properly taken, it appears that a person or persons other than that or those alleged or appearing to be offenders when cognizance was taken also is or are offenders, then the Court can issue process against these new accused, and can deal with them just as it can issue process against and deal with the person or persons originally mentioned. (2) In fact, a Court can take cognizance even when the offender is absolutely unknown and can then issue process as soon as inquiry or investigation shows there is evidence justifying the placing of some person upon his trial. (3) Again, if a magistrate receives on transfer a case of which he could not have taken cognizance on his own authority, he can issue process against all whom the evidence at any stage shows to have probably been concerned as offenders. Bars to cognizance 1. Section 337—approver.

451THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA III. Powers of Criminal Courts The subject may be dealt with under three different heads. (1) Power to take cognizance of an offence. (2) Power to pass interlocutory orders in a criminal matter. (3) Power to punish. (I) Power to take cognizance of an offence Whether a Court can take cognizance of an offence depends upon (a) The Status of the Court. (b) The nationality of the offender. (c) Depends upon whether the accused will get justice at the hands of the Judge or Magistrate. (a) The status of the Court Section 6 According to the Criminal Procedure Code there shall be five classes of Criminal Courts in British India. I. The Sessions Court. II. Presidency Magistrate. III. Magistrate of the first class. IV. Magistrate of the second class. V. Magistrate of the third class. To this must be added the High Court. (i) Regarding offences under the Penal Code Section 28 1. The High Court may try any offence under the Indian Penal Code. 2. The Court may try any offence under the Indian Penal Code. 3. But with respect to other magistrates they can take cognizance of such offences only as they are empowered to do by the provisions contained in the 8th column of the Second Schedule to the Cr. P. C.

452 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Section 29 (ii) Regarding offences under other laws 1. If the law mentions the Court no other Court can take cognizance of the offence. 2. If the law does not mention the Court then (a) It may be tried by the High Court or (b) It may be tried by the Court mentioned in the 8th column of the Second Schedule to the Cr. P. C. under the heading “Offences against other laws”. Section 29-A (b) The nationality of the offender If the offender is an European British Subject a magistrate of the 2nd or 3rd class cannot try him for an offence punishable otherwise than with fine exceeding Rs. 50. If the offence is such that it is not punishable with imprisonment is punishable with fine and the fine does not exceed Rs. 50 then he can be tried by a magistrate of the 2nd or 3rd class. But if it is punishable with imprisonment or is punishable with fine exceeding Rs. 50 he cannot be tried by them. N. B.—This is so if the European British Subject claims his privileges as such given to him by the principle of ultra vires an intra vires. Prior to 1923 the definition stood as follows : European British Subject means (i) any subject of H. M. born. naturalized or domiciled in the U. K. or any of the European, American or Australian colonics or possessions of H. M. or in the colony of New Zealand or in the colony of the Cape of Good Hope or Natal; (ii) any child or grand-child of such person by legitimate descent. Domicile = The place where a person has his home a place to which one returns. Domicile is of three sorts : (1) by birth (2) by choice (3) by operation of law (e. g. wife acquiring the domicile of her husband).

453THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA Section 195 deals with offences affecting the administration of justice. General Rule A magistrate cannot convict a person for contempt of Court committed in respect of his own authority a commitment to another magistrate is necessary. The Court before which an offence was committed, and by which a preliminary inquiry was held under Section 476 should not try the case. Section 480 Court can try an offence committed in the view of the Court when the offence is 175 (Omission to produce a document by person bound to produce to a public servant) 178 (Refusing to take oath or affirmation) 179 (Refusing to answer public servant authorized to question) 180 (Refusing to sign a statement) 228 (Intentional insult or interruption to public servant sitting in judicial capacity). Section 485 Imprisonment of 7 days or committal of a witness refusing to answer or produce a document. For a convenient summary of the privileges formerly enjoyed by an European British Subject and privileges which he now enjoys see Woodroffa Criminal Procedure (1926) pp. 516—519. Section 4 (I) European. British Subject means (I) Any subject of H. M. of European descent in the male line born, naturalized or domiciled in the British Islands or any colony, or (II) Any subject of H.M. who is the child or grand-child of any such person by legitimate descent. Essentials of clause 1. — 1. European descent 2. In the male line 3. Born naturalized domiciled. in the British Islands or any colony.

454 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Essentials of clause 2. — Person may not himself be born naturalized or domiciled. But he may be the son of such a person. A person claiming the privileges of a European British Subject under clause 2 must prove 1. Legitimate descent and 2. Nationality of his father or grandfather. 6 M. H. C. R.,7 Turnbull *** (III) Depends upon whether the accused will get justice at the hands of the Judge or magistrate. There is very little chance of justice being done if the judge or magistrate is himself the complainant. The principle of law is that in no case shall the prosecutor shall also be the judge. This principle is embodied in ......... Section 487 (1) Except as provided in Sections 480 and 485 no judge of a criminal court or magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority or is brought under his notice (as such judge or magistrate) in the course of a judicial proceeding. (2) Nothing in Section 476 or Section 482 shall prevent a magistrate empowered to commit to the Court of Session or High Court from himself committing any case to such Court. NOTES.— Section 195 deals with offences affecting the administration of justice. The section says that such an offence if it has been committed before the judge or in contempt of his authority is brought under his notice shall not be tried by him. Unless the case falls under Sections 480 and 485. Contempt is any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority or to obstruct or interfere with the due course of justice or the lawful process of the court. (Navianbeg. 10 B. H. C. R. 73)