CHAP. VII. Secs. 71-72.. CODE OF CRIMINAL PROCEDURE. 507 CHAPTER VII. OF CRIMINAL JURISDICTION OVER EUROPEAN BRITISH SUBJECTS. The provisions of this chapter are new. It was necessary to remedy the state of things with respect to Europeans in the Mofussil, and that the remedy should be as effectual as it could be consistently with security and justice. It must be borne in mind that the privilege as to the jurisdiction laid down by this chapter was the privilege of the prisoner, not the privilege of the Judge, and so by the provisions of Section 72 it has been provided that only an E. B. S. can inquire into or try an E. B. S. Her Majesty's Commissioners, in their Seventh Report, p. 5, say "they concur with the Commission which framed the Code of Criminal Procedure, in thinking it desirable that a general and uniform system of Criminal Procedure should be applied to persons of all classes without distinction." European British 71. The expression "European British subjects" means in this Act subjects." (1.) All subjects of Her Majesty born, naturalized, or domiciled in the United Kingdom of Great Britain and Ireland or in any of the European, American, or Australian Colonies or Possessions of Her Majesty, or in the Colony of New Zealand, or in the Colony of the Cape of Good Hope or Natal. (2.) The children and grandchildren of any such person by legitimate descent. 72. No magistrate, or Justice of the Peace, or Sessions Officers who may in- Judge shall have jurisdiction to inquire quire into and try into a complaint or try a charge against a European British sub- European British subject unless he is him offences committed by jects. self a European British subject. Secs. 72-75. No Magistrate shall have such jurisdiction unless he is a Magistrate of the first class and a Justice of the Peace. No Justice of the Peace shall have such jurisdiction unless he is a Magistrate of the first class. 73. Any Magistrate who is authorized by law to enterWho may hear comtain complaints, may entertain against plaints and issue pro- European British subjects such complaints as he is authorized to entertain in the case cess. of other persons. If he issues any process for the purpose of compelling the appearance of a European British subject accused of such offence, such process must be returnable before a Magistrate competent to inquire into or try the case. Magistrates of the 74. Any competent Magistrate may first class, being Euro- inquire into complaints of any offence and Justices of the made against a European British subject. may inquire Peace, into complaints against European British sub jects. trate may try, and ex If the offence complained of is a Magistrate's case, and When such Magis- can, in the opinion of such Magistrate, be tent of his jurisdiction. adequately punished by him, he shall proceed as is hereinafter in this Code directed, according to the nature of the offence; and, on conviction, may pass on such European British subject any sentence warranted by law, not exceeding three months' imprisonment, or fine up to one thousand Rupees, or both. 75. When the offence complained of cannot, in the When commitment opinion of such Magistrate be adequately is to be to Court of punished by him, and is not punishable with death, or with transportation for life, such Magistrate shall, if he thinks that the accused person Session. CHAP. VII. Secs. 75-78._ CODE OF CRIMINAL PROCEDURE. 509 ought to be committed, commit him to the Court of Session. When the offence complained of is punishable with death or transportation for life, the comis to be to High Court. mitment shall be to the High Court. When commitment of Session. 76. Sessions Judges or Additional Sessions Judges, Jurisdiction of Court and, when specially empowered in that behalf by the Local Government, Assistant Sessions Judges who are European British subjects and who have been Assistant Sessions Judges for not less than three years, may pass on European British subjects any sentence, warranted by law, not exceeding one year's imprisonment, or fine, or both. When Sessions If at any stage of the proceedings the Sessions Judge thinks the offence cannot be adequately punished by such a sentence, he shall record his opinion to Judge finds his powers that effect and transfer the case to the inadequate. High Court. The Sessions Judge may either himself bind over, or direct the committing Magistrate to bind over the complainant and witnesses to appear before such High Court. 77. If the Sessions Judge of the Sessions Division, Procedure when Ses. Within which the offence is ordinarily sions Judge is not a triable, is not a European British subject, European British subject. the case shall be reported, by the committing Magistrate, for the orders of the High Court. 78. Trials of European British subjects before the Court of Session shall be conducted trials by Court of Ses- according to the provisions of Chapter Mode of conducting sions. XIX. In trials with assessors not less than half the number of Secs. 78-81 assessors, and in trials by jury not less than half the number of jurors shall be European British subjects. 79. Any European British subject who is convicted by Appeal from convica competent Magistrate of any offence, tion of such subject by may appeal either to the Court of Session or to the High Court. Magistrate. Appeal from convic 80. Any European British subject who tion by Court of is convicted of any offence by any Court of Session, may appeal to the High Court. Session. person. 81. Any European British subject who is detained in Right of European custody by any person, and who considers British subject under such detention unlawful, may apply to the detention to apply for order to produce his High Court, which would have jurisdiction over him in respect of any offence committed by him at the place where he is detained, or to which he would be entitled to appeal from any conviction for any such offence, for an order directing the person detaining him to bring him before the said High Court to abide such further order as may be made by it. The High Court, if it thinks fit, may, before issuing such order, inquire on affidavit or otherwise, into the grounds on which it is applied for, and grant or refuse such application; or it may issue the order in the first instance, and when the person applying for it is brought before it, it may make such further order in the case as it thinks fit after such inquiry as it thinks necessary. Procedure on such application. The High Courts may issue such orders throughout the territories over which they have jurisdiction and over such other places as the Governor General in Conncil may direct. The procedure in England is as follows: A certiorari removing the proceedings to the Queen's Bench is commonly granted for one of these four purposes, either (1) to consider and CHAP. VII. CODE OF CRIMINAL PROCEDURE. 511 determine the validity of an indictment and the proceedings thereon, and to quash or confirm them as there is cause; (2) where it is surmised that a partial or insufficient trial will probably be had in the Court below, in order to have the person against whom it is found, tried at the bar or before the Justices of Nisi prius, according to the course of a civil action (14 Hen. 6, C. 1); (3) in order to plead the royal pardon there; or, (4) in order to issue process of outlawry against the offenders. In places where the process of the inferior Court will not reach him (2, Hale, P. C. 210). Such writ of Certiorari, when issued and delivered to the inferior Court, for removing any record or other proceeding, as well upon indictment as otherwise supersedes the jurisdiction of such inferior Court; and makes all subsequent proceedings therein entirely erroneous and illegal, unless indeed the Court of Queen's Bench remands the record to the Court below, to be there tried and determined. A Certiorari may be granted at the instance of either the prosecutor or the defendant; and the former was once entitled to demand it as a matter of right, though the application of the latter has always been dependent on the discretion of the Court-Steph. Com., Vol. IV, p..474. In the exercise of this discretion. a Certiorari has been seldom granted at the instance of the defendant, to remove indictments either from the Justices of gaol delivery; or, after issue found, or confession of the fact in any of the Courts below, (4 Black. Com. 321, see Hawk. P. C. B. 2, C. 27; Reg. v. Gwynne. Burr 749; Reg. vs Kingston. Cowp. 283; Reg. vs Harrison, 1 Chit. Rep. 571.) By 5 and 6, Will. IV, c. 33 and 16 and 17, Vict. c. 30, s. 5, No Certiorari shall issue at the instance of the Prosecutor or of any other person (except the Attorney General) without motion first made in the Court of Queen's Bench, or before some Judge of that Court, and leave obtained in the same manner as where application is made on the part of the defendant; and by 19 and 20 Vict. c. 16, whenever any indictment for any felony or misdemeanour in a place out of the jurisdiction of the Central Criminal Court has been removed, the Court of Queen's Bench can order the trial thereof to be at the Central Criminal Court (Section 1.) Whenever any person is committed or held to bail for any such felony or misdemeanour, the Court of Queen's Bench may order that the accused be tried at the Central Criminal Court, and thereupon a writ of Certiorari shall be issued. Whenever any Certiorari shall be delivered to any Court for the purpose of removing any indictment, the person charged who shall then be in prison, shall not be discharged by such Court, but shall remain there till discharged by due course of law. (Section 11.) In general, the course of proceedings is similar to that upon indictments; but the first process |