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trial : if any comg. officer or officers shall wilfully neglect, or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall, upon being convicted thereof before a gen. ct.-mar., be cashiered.
1. Erplanation.] Sec. xvii. of the M. A. is a repetition of the above art., but adds, “ And if any such comg. officer shall wilfully neglect or refuse, upon application made to him for that purpose, to deliver over any such accused person to the civil magistrate, or to be aiding or assisting to the officers of justice in apprehending such offender, every such officer so offending, and being thereof convicted, upon any information or indictment, in any of H. M.'s courts of record in India (5), shall be deemed and taken to be cashiered, and shall be utterly disabled to have or hold any civil or mil. office or employment in the said United Co.'s service, in the East-Indies, provided a certificate of the said conviction be transmitted to the Judge Adv.gen, of the army to which such offender shall belong: provided always that nothing herein contained shall extend, or be construed to extend, to require the delivery over to the civil magistrate of any such person accused of any offence, who shall have been tried for such offence by any court martial in manner herein before provided (6), in respect of offences committed within the territory of any foreign state, or in any country under the protection of H. M. or the said United Company, or at any, place in or out of the territories of the said United Company situate above 120 miles from the said presidences of Ft. Wm., Ft. St. George, and Bombay respectively, or against whom any effectual proceedings shall have been taken, or ordered to be taken, for the purpose of bringing such person to trial by such ct.-mar. as aforesaid : provided also, that no person or persons, being acquitted or convicted of any capital crime, violence, or offence, by the civil magistrate, shall be liable to be punished by a ct.-mar. for the same, otherwise than by cashiering (7).
2. An Officer, N.C.O. or Soldier accused of a capital Crime, &c. such as is punishable by the known Laws of the Land, except committed above 120 miles from Ft. Wm., &c. to be delivered over to the Civil Magistrate.] All officers, N. C. O, soldiers, and other persons subject to military orders and discipline (8) are the persons intended to be delivered over to the civil magistrate. In the case of Europeans, they would be delivered over to be tried before the Supreme Court. The only case forming an exception to the above direction, is that wherein the party is accused of having committed the crime at places above 120 miles from Calcutta, &c. respectively. The subjects of H.M., those entitled to his protection, or that of the
E. (5) Supreme Courts.
(6) See M. A, sec. ii, Chap. I. p. 6. (7) Non-com, officer or soldiers would be discharged the service. (8) See sec. xvii, art. 3; sec. xxi. art. 3; and M. A., sec. i, Chap I. p. 4.
E. I. Company, (9) or the subjects of states in alliance with the Company (10), are the persons to whom, or their estates, or property, this art, affords protection.
3. Application duly made by, or in behalf of the Party or Parties injured, to the Comg. Officer.] Where a complaint is made to the comg. officer against any one under his command, the same should be investigated ; but if any one is accused of having committed “wilful murder, theft, robbery, rape, or any other crime, which is capital by the laws of England, or of having used violence, or committed any offence against the person, estate, or property" (11) of the persons entitled to the Co.'s protection, or others beforenamed, it would then become his duty, to secure the person of him who is so accused.
The Hon. Court of Directors, in their general letters to Bengal, of the 2d and 14th April 1813, direct officers to be suspended the service, and sent to England for ill-treating the native inhabitants. The following sections from the 53d Geo. III, cap. 155 (12), will explain more fully those offences which are not above specified. By sec. ciii, it is enacted, “ that it shall and may be lawful for the adv.gen., or other principal law officers of the said Company at their several presidencies, in all cases of misdemeanour alleged to have been committed by any British subject, at a distance of more than 100 miles from the presidency, within the limits whereof such offence shall be alleged to have been committed, to file an information ex-officio in the Supreme Courts of Judicature of Ft. Wm. and Madras, or the Recorder's (13) court at Bombay, as the case may be; and all such proceedings shall and may be used and had upon such information as may lawfully be used and had in cases of information, filed ex officio by H. M.'s Attorney-Gen., in H.M.'s court of King's-Bench in England;" and by sec. cv. of the said act it is further enacted, “ that it shall and may be lawful for any native of India, resident in the East-Indies, or parts aforesaid, and without the said towns, in case of any assault, forcible entry, or other injury accompanied with force, alleged to have been done against his person or property by a British subject, to complain of such assault, forcible entry, or other injury accompanied with force, not being felony, to the magistrate of the zillah or district where the alleged offender shall be resident, or in which such offence shall have been committed ; and that such magistrate shall have power and authority, at the instance of the person so complaining, to take cognizance of such complaint, to hear parties, examine witnesses, and having taken in writing the substance of the complaint, defence, and evidence, to acquit or convict the person
accused; (9) All the native inhabitants within the Co.'s dominions.
(10) Scindiah, Holkah, &c., and all the native princes, &c., between whom and the Co. a treaty exists.
(11) See sec. xxi, art. 4.
accused ; and in case of conviction, to inflict upon such person a suitable punishment, by fine, not exceeding 500 Rs., to be levied, in case of non-payment, by warrant under the hand of the said magistrate, and upon any property of the party so convicted which
be found within the said district ; and if no such property shall be found within the said district, then it shall be lawful for the said magistrate, by warrant, also under his hand, to commit such offender to some place of confinement within the said zillah or district, which, on the judgment of the said magistrate, shall be fit for receiving such offender; or if there shall be no fit place of confinement, then to the jail of the presidency, to remain there for a period not exceeding two months, unless such fine shall be sooner paid; and it shall be lawful for the said magistrate to award the whole, or ony portion of such fine to the party aggrieved, by way of satisfaction for such injury; provided always, that in all cases of conviction of a British subject, under the provision herein before contained, the magistrate before whom such conviction shall take place shall forthwith transmit copies of such conviction, and of all depositions and other proceedings relative thereto, to the govt. to which the place wherein the offence was committed is or shall be subordinate: provided also, that all such convictions shall and may be removeable by writ of certiorari (14) into the courts of Oyer and Terminer, and Gaol Delivery respectively, in the same manner, and upon the same terms and conditions, and shall be proceeded upon in the same manner in every respect, as is directed in the said act of the 33d year (15) of H.M.'s reign, with regard to other convictions before justices of the peace in the British settlements or territories in India (16): provided also, that nothing herein contained shall extend, or be construed to extend, to prevent such magistrate from committing or holding to bail any British subject, charged with any such offence before him, where the offence charged shall appear to such magistrate to be of so aggravated a nature as to be a fit subject for prosecution in any of H.M.'s courts, to which such British subjects may be amenable." With regard to military crimes, the course is clearly pointed out by
the (14) At the instance of any of the parties thereby affected or aggrieved, at any time within the space of six calendar months next, after the making or pronouncing thereof respectively; for which purpose, any one or more of the justices of the Court of Oyer and Terminer, &c., to grant his or their fiat or warrant, to award a writ of certiorari, under the seal of the Supreme Court.
(15) 33 Geu. III, cap. 52, former Charter.
(16) Sec. cliži, (33 Geo. III, cap. 52) enacts ; "and the said court of Oyer and Terminer, and Guol Delivery shall have full power and authority to quash or affirm the same, so that the same be not quashed for want of form, but on the merits only; and to pronounce judgment thereon, in the like manner as the Court of King's Bench, at Westminster, can or may do upon convictions, judgments, orders, or other proceedings had or made, by or before any justices of the peace, or Court of Quarter Sessions in England, removed or brought into the said Court of King's Bench, by writ of certiorari.
the 20th art. of sec. xiv, by directing an officer to be placed in arrest, a non-com. officer or soldier to be confined, and the article at present under consideration, gives directions with respect to crimes of a civil nature. The party injured would, therefore, make an application to the comg, officer, stating the subject and nature of his complaint, upon which it would be the duty of such comg. officer, to listen to the same, and to use his utmost endeavours to deliver over such accused person to the civil magistrate. The truth of the complaint can only be ascertained on an investigation of the case ; and though in criminal cases it is usual for a magistrate to require the party accusing to make oath as to the crime or injury committed, before he grants his warrant for commitment, still a comg. officer is not here invested with the power of so acting; he is not authorized to administer such oath, and therefore all he can, or is authorized to do, is to deliver over the accused to the civil magistrate, either by sending such accused to him, or by informing the magistrate of the case; that he may investigate it, and then demand in writing the delivering up of the accused person, sending, by his officer, his warrant or other authority, for the delivery into his custody of the body of the accused. This appears to be the letter and spirit of the intention of the art, and the M. A. above recited, and the acting in obedience to it can never involve such comg. officer in any subsequent difficulty ; for besides the authority and direction contained in both, sec. Ixv. of the M. A. enacts “ that if any action, &c. be brought against any person or persons, for any act, matter, or thing to be acted or done in pursuance of this act, it shall and may be lawful to and for all and every person or persons used as aforesaid, to give this act in evidence, &c.” (17); therefore all the officers who aid and assist are protected in the exercise of such duty, though the party accused should be ultimately acquitted. If the accused is, when required by the act, to be delivered up to the magistrate, the committing the accused for trial rests with him, and the comg. officer does his duty by giving the magistrate immediate information of the complaint, and sending the accusing party before him; were he, on the other hand, to investigate the case himself and decide against taking any steps, not thinking any necessáry, he would take upon himself a heavy responsibility for which he is answerable; at the same time, the accusing party should be acquainted with the consequences of making a false accusation, and care should be taken that he be sent with a proper person to the magistrate to insure his appearance against the accused ; that the latter may have the means of clearing himself of the accusation, and, if the same should turn out to be malicious, have the means of proceeding against him—thus giving the means of doing justice to all parties as well as to the govt. The application is to be attended to if duly made by or in behalf of the party injured. It may
(17) See No. XV, p. 18.
so happen that the party may be killed, or so injured that he cannot appear personally to complain, or he may be withheld by the accused and prevented; therefore, some relation, &c. would be necessitated to make the complaint, or in the latter case any bye-stander might give information, which would render it neces
cessary to send some person to the spot. By the term due application is to be understood, the statement of the party himself, by another coming immediately from the party injured in the case of death or other injury preventing his attendance, or by that of an eye-witness—but not on mere report. Still, however, a report of the death of another by a soldier, &c. should occasion such an inquiry to be made as may prove or disprove it, and in the former case steps would be necessarily taken, to bring the party to justice.
4. All Officers of a Regt. &c to use their utmost Endeavours.] The complaint is supposed to be made to the comg. officer, but other officers of the regt. may beforehand, become acquainted with the accusation, in which case they are “ to use their best endeavours to deliver over such accused person to the civil magistrate,” by which it 'is intended that they should inform the comg. officer of the circumn. stance, and be aiding and assisting him, and, subsequently, the officers of justice, sent to apprehend and secure the accused—they are to “ use their utmost endeavours," from the moment they hear the accusation till the apprehension of the accused; therefore, concealing or harbouring the accused, or giving him the means of escape, or aiding, or in any manner assisting therein, or conniving at, or even advising such escape would be criminal acts; and any wilful neglect, in not properly securing the person of the accused, would amount to the “ not using the best endeavours.”
5. The accused is to be tried by a Genl. Ct.-mar., if Crime, &c. be committed above 120 miles from Calcutta, 8c.] In this case all the previous observations would apply as to the measures of precaution to be taken, but here the comg. officer must investigate the complaint, and he would also report the case to the officer comg. the station, &c. for him to decide
ulterior steps. 6. With respect to Native Soldiers, &c., accused of Capital Crimes or Misdeameanors, &c.] Sec. cix. of 53d Geo. III, cap. 155, (18) enacts “ That all persons whosoever, being natives of India, who have been, now are, or hereafter may be employed, by or in the service of H. M., the said United Co., or of any of H. M.'s subjects, were, and are, and shall be subject and amenable to all provincial courts of competent jurisdiction for all crimes and misdeameanors, and in all actions and suits whatsoever, of which such courts respectively could take cognizance, if the persons having committed such crimes or misdemeanors, or against whom the cause of such actions or suits shall have arisen, had not been employed by, or had not been in the service of H. M.,
(18) Last renewal of the Charter.