33. No change is necessary in the provisions relating to Presidency Magistrates. 34. To put our main proposals, in respect of the modifications of the Criminal Procedure Code, into tabular form, their effect will be: : For European British Subjects. I. An appeal will lie against any sentence of (a) An appeal on facts as well on law in the (b) A probable increase in the number of Indians in the Special Jury List. (c) A provision that the jury shall be not less than five and in all murder cases, if practicable, nine. III. The accused in the Sessions Court will be entitled to claim to be tried by jury in any class of case which is normally triable with assessors if racial considerations are involved. This provision is in addition to the right of trial by jury in all cases in the High Court and also in Sessions Courts where such a method of trial is prescribed under Section 269 of the Criminal Procedure Code. For Indians. The same. The same. The same. The same. IV. In any class of case in the Sessions Court SO tions are involved, the accused and the VI. In a summons case where racial considera- The same. For European British Subjects. VII. In any other case triable by a Magistrate, if the accused so desires, the trial will be For Indians. It is not practicable to extend this to Indians. ment to continue pending the result of the proposed inquiry. VIII. Judges and Magistrates, outside presidency- The existing arrange- Note. Clauses I, IV, V, VI, VII, VIII We also propose the repeal of Section 460, which 35. We regret that one member of the Committee, Mr. Stuart Roffey, a representative of the non-official Europeans of Assam, owing to private and personal reasons, was unable to attend the meetings of the Committee and had to resign his seat thereon. Some members of the Committee were unable to attend our final meetings. 36. In conclusion, we desire to place on record our deep sense of obligation to our colleague, Mr. Percival, I.C.S., M.L.A., who has, throughout the proceedings of this Committee, acted as Secretary and brought to bear upon the work infinite patience and great industry which has been of great assistance to us in the preparation of this report. We also desire to express our acknowledgments to Mr. Tonkinson, Joint Secretary in the Home Department, for the assistance he has given us generally. Simla, 14th June, 1922. * TEJ BAHADUR SAPRU, W. H. VINCENT. ABDUL KASIM. L. M. BANERJI. N. M. SAMARTH. *H. GIDNEY. P. E. PERCIVAL. THOMAS C. P. GIBBONS. S. SULTAN AHMAD. *L. A. SHAH. "H. S. GOUR. Subject to a separate minute. Minute by Mr. W. L. Carey, M.L.C. In signing the Report I have been influenced by the desire, in common with my community, throughout the Committee's deliberations to attain unanimity with the Indian Members in the proposals for the removal of racial distinctions from the Criminal Procedure Code in so far as they constitute racial inequalities. Personally, I have approached the problems before the Commission with three main principles in my mind. Firstly, that it is an essential part of any sound system of Criminal Law that the accused should feel confidence in the tribunal before which he is arraigned and the method of trial. Secondly, that all reasonable safeguards which are either demanded by Indians or which it otherwise appears would be desirable should be granted to them. Thirdly, that none of the ights and privileges hitherto enjoyed by Europeans should be taken away from them save for good cause. These are the principles which I have found actuating all Europeans with whom I have discussed this matter, and it is only fair to state here that the unofficial European community at informal meetings which were held from time to time has agreed, in violation of the third principle, to give up many of their privileges with a view to an amicable solution. I have not demurred at this withdrawal of many valued rights and privileges enjoyed in the past by Europeans, some of which it is recognized are not in consonance with the spirit of the present day, but I have kept before me the essential conditions that the judicial system should justify the confidence of the accused and that safeguards should be provided against ebullitions of feeling which have always been liable to occur and which at the present time are being directly encouraged by a section of the Indian community. The general recognition of the necessity for such safeguards is evidenced in the procedure suggested in the Report whereby the system of mixed juries, before whom Europeans have been tried in the past, has been extended to members of both races in all warrant cases where racial considerations are involved, whether triable before a High Court or a Sessions Court. In addition to this provision, the Report advocates the transfer of all warrant cases where racial considerations are involved at the option of the accused person from a Magistrate's Court to a Sessions Court. These safeguards against the influence cf racial feelings on the administration of justice are satisfactory so far as they go, for they conform to the principle first enunciated, and at the same time, by ensuring a senior Court for the more complicated cases, in which racial feelings from outside the circle of those implicated may play a part, the proposed safeguards do what is possible to ensure non-interference with the judiciary. These provisions, which embody no racial inequalities and infer no reflections on the magistracy, unless admitted lack of experience in comparison with the Sessions Courts can be so considered, are restricted in application to warrant cases in the Report, and it is at this restriction that I dissent from my colleagues. Summons cases often involve as much racial feeling as cases of a graver description, and I am of opinion that the safeguards which are admitted to be advisable in warrant cases should be available at the option of the accused in all summons cases where acial considerations are involved and the punishment may embrace imprisonment or a fine of over Rs. 50. The proposal in the Report for a mixed bench composed of two first-class Magistrates, one of cach nationality, is a recognition of the necessity for some precaution against racial feeling, and it is, in my opinion, illogical to depart from the system put forward for warrant cases and to introduce a procedure which the progressive Indianization of the services may make difficult to maintain. The extra work entailed in Sessions Courts by the extension of the warrant case procedure to summons cases where racial considerations are involved is likely to be inconsiderable. but the extra confidence which would be inspired in a community willing to give up many privileges in the interests of racial amity would be an added guerdon to the friendly relationship which must pervade all parties in the country if the reforms are to evelop smoothly to the declared goal of constitutional independence. The only objection which can arise to the transfer of summons cases to Sessions Courts is in the case of parties of insufficient means to pay for this transfer, and in these instances I would suggest that Government should undertake the expense of the prosecution. A further point of considerable importance to the European community is the right of an accused person to give evidence on his own behalf, for, in view of the isolated conditions in which many Europeans find themselves, rendering defence witnesses impossible in cases of prosecution, I am of opinion that this right should be generally accorded to all in order to facilitate the administration of justice. In any legislation, therefore, resulting from this Report, I most earnestly urge that these points, on which I know strong opinions are held by many of my countrymen, should be embodied not merely as a measure of goodwill towards the section of the community whose legal status is being very considerably lowered, but as an addition to the efficiency of the proposed amendments to the Criminal Procedure Code. With reference to the inquiry which it is understood is still to be held as to the possibility of extending jury trials in districts where they do not at present exist, I would like to say that it is hoped that this action may be found possible in all districts, or at least that, i it is not found possible for all districts, that it will be extended wherever it is so found possible. In conclusion, I would draw attention to the very considerable advances on many substantial points making for satisfactory justice which Indians as a whole will have made as the result of this Report if it is adopted and as a return for which I trust further it may be found possible still to accord to the European community the two points dealt with in this note. Calcutta, June 21, 1922. W. L. CAREY. C 2 Minute by Mr. T. C, P. Gibbons, K.C. I generally agree with Mr. Carey's note. Calcutta, June 23, 1922. THOMAS C. P. GIBBONS. Minute by Lieutenant-Colonel H. A. J. Gidney, M.L.A. As representative of the Anglo-Indian and domiciled European community, I have approached the problem with the same objects in view as Mr. Carey, and the proposals in his minute have my support and endorsement. H. A. J. GIDNEY. Calcutta, June 24, 1922. Minute by Mr. T. Rangachariar. SCOPE OF ENQUIRY. IN pursuance of a resolution of the Legislative Assembly passed on the 15th September, 1921, recommending the removal of all racial distinctions between Indians and Europeans in the matter of their trial and punishment for offences, the Government of India, in their Resolution No. F.-105 Home (Judicial), dated the 27th December, 1921. appointed this Committee declaring that they have already accepted the principle that there should be equality of status for all people in this country in the matter of criminal trials and proceedings. By that order the Government have asked this Committee to consider the existing racial distinctions in the criminal procedure applicable to Indians and non-Indians, and to report such modifications of the law as should be adopted to carry out the principle so accepted. It is necessary to emphasize this aspect of the resolution at the outset. Some of the witnesses who appeared before the Committee sought to raise the question as to whether the principle should be accepted at all. Whether or not, the Government have accepted in full the recommendation of the Assembly to remove all racial distinctions; they have clearly adopted the principle that there should be equality of status for all subjects. THE EXISTING RACIAL DISTINCTIONS IN CRIMINAL PROCEDURE. There are five classes of Criminal Courts, under the Code, to administer Criminal Justice (1) Courts of Session, including the High Court ; |