Page 181 - Gulf Precis (VII)_Neat

37
2. That the High Court at Bon.bay has no jurisdiction is, I think, clear from the
statutes ami letters patent, and from the decision of the Hr ivy Council in 1S57 in the case
of Uga Moong versus the Queen, VII, Moore's huh mi Appeals, 72, which was an appeal
Iroin a judgment on a conviction of th. Supreme Court at Calcutta by a majority of the
Judges (Sir Charles Jackson dissenUnite) in a case of murder committed within the limits
of the Charter of the East India Conipanyon an island called Wah Gyoon in the Bay of
Bengal.
3. It was held by the Privy Council that the Supreme Court at Calcutta had no juris­
diction under the 9, Geo. IV., c. 74, s. 56, to try an indictment for murder committed and
wholly completed at a place within the trading limits of the East India Company's Charter
by native subjects of Burma under the Government of the East India Company representing
the Crown, who would not, under former statutes regulating the jurisdiction of the Supreme
Court, have been amenable to its criminal jurisdiction. The Privy Council therefore
decided that the judgment could not be supported, and that the conviction was wrong, and
expressed a clear opinion that statutes giving criminal jurisdiction were to be construed
strictly.
4. The accused Saeed, not being a British subject, could not, in my opinion, have
been tried in the late Supreme Court at Bombay for a crime committed by him on land
beyond the local jurisdiction of that Court, nor can he be tried for such an offence in the
High Court. In the case of Rex versus Francisco Jose, Morton's Hep., 218, the Supreme
Court at Calcutta held that a foreigner who had committed an offence beyond the province
of Bengal was not subject to the jurisdiction of the Supreme Court under the statute 26,
Geo. 111., c. 57, sec. 29, although, if the offence had been committed by a native subject
in the town of Calcutta, the Court would have had jurisdiction—Jaunokec Doss versus
the King I., Moore's Indian Appeals, 67.
5. As it might, perhaps, be contended that the case came within the Foreign Jurisdic­
tion Act, 1843 (6 and 7 Vic., c. 94), I requested that a search might be instituted at
the Secretariat whether any order had been made by the Queen in Council under that Act,
or under the Foreign Jurisdictional Amendment Art of 1866 (29 and 30 Vic., c. 87),
appointing Bombay or any other place as the place to which persons committing crimes or
offences at Bassidore wore to be sent for trial; but the search which has been made has
been unsuccessful.
6. A search has likewise been instituted at the Secretariat with the view of seeing if a
native has ever been sent from Bassidore to Bombay for trial for an offence committed at
Bassidore, but such search has also proved unsuccessful.
7. I have also enquired at the office of the Clerk of the Crown with the like object,
but have been informed by the Hoad Clerk, who speaks from a personal knowledge of the
last 22 years, that no such case has occurred during his time, nor, so far as he has ever
heard, in that of any of his predecessors.
8. The present case does not appear to mo to come within the provisions of Act I of
1849, an Act to provide more effectually for the punishment of offences committed in
Foreign States, as section 2 of that Act does not include such a person as the accused
* Saeed.*
9. Under the circumstances, therefore, of the present case, there being 110 tribunal
before which the accused can be brought for trial, and as it is contrary to the spirit of the
English Criminal Jurisprudence to incarcerate a person for an indefinite period without
bringing him to trial, 1 sec no other course open, but to remove him from Bassidore to such
other place as may be most convenient (the mainland would probably be preferable to
anywhere on the island), and there give him his liberty.
(Sd.) LYTTLETON II. BAYLEY,
Advocate General.
149. The Bombay Government therefore observed as follows in their Reso­
lution No. 1S57, dated 17th July 1S68:—
RESOLUTION.—It is not satisfactory that there should be no means of bringing to
justice a man who,by his own confession has committed a murder in a place which for the
last half century has been virtually, if not actually', British territory.
The Advocate General seems to intimate that, if the accused were a British subject,
he could be proceeded against in any competent Court within the Bombay Presidency under
Act 1 of 1849. it is not clear why the Advocate General has assumed that he is not a
British subject. He is spoken of in the evidence as having lately come from Bombay.
Further enquiry should be made on this point, the Advocate General being first asked to
state whether, in the event of the accused proving to be a British subject, he would
recommend his being sent to Bombay to be proceeded against under Act 1 of 1849.
This case suggests the necessity of steps being at once taken to create the jurisdic­
tions necessary for the cognizance of offences committed at the British station, Bassidore.
Colonel Felly writes :—“ No official in these regions has authority to try a case of murder.*’
S640FD