extra costs, if any, that this mode of trial may involve. I would recommend that the same uniform mode of trial by jury in the Sessions Courts be adopted in British India applicable alike to European British subjects and others, subject, of course, to the safeguards already indicated against the possible inconveniences and risks of trials by jury, viz., the power of the presiding Judge outside the Presidency towns to refer the case to the High Court when he thinks it necessary to do so, and the full right of appeal to the Crown and to the accused in all Sessions cases. If on any special grounds it be not feasible to introduce this system in some parts of British India, I am unable to see any reason why it should not be extended to the rest of British India. 13c. If for any reason this alternative cannot be accepted. I think (speaking with respect and deference) that the recommendations in the report afford the next best solution of this difficult question. 14. As regards trials by Magistrates, in warrant and summons cases, I prefer the simple plan of trusting the First Class Magistrates in the case of British European subjects in the same manner as they are trusted in the case of others. In the Presidency towns no distinction is observed as regards the powers of the Presidency Magistrates either to try or to inflict sentences upon accused persons whether European British subjects or not; and in the mofussil, as regards First Class Magistrates who exercise virtually the same powers as the Presidency Magistrates, I see no sufficient reason to observe any distinction, nor do I see any compelling reason to introduce the element of racial considerations" in these trials. But here, again, it is largely a matter of opinion. Personally, I am in favour of trusting the First Class Magistrate in the same manner as the Presidency Magistrates, particularly as in the case of the former the right of appeal is more extensive and will be further extended according to our recommendation. This right of appeal is a sufficient safeguard. But if this be not accepted, I think (with due respect) that the recommendations in the report as to the mode of trial constitute the next best solution of this question. 66 15. As regards the results indicated in the tabular form in the report, they would be subject to such changes as I have indicated in this minute. In brief, according to my suggestions there will be no racial distinctions left in the Code except as to the trials by Second and Third Class Magistrates of cases which are punishable otherwise than by a fine of Rs. 50 only. 16. In conclusion, I desire to add that I consider it a matter of great importance to have uniformity of procedure in criminal trials as regards all persons, whether European British subjects or not. It does not matter so much what particular line is adopted in altering the existing provisions with a view to havə such uniformity. If once the uniformity of procedure is secured, I have no doubt that in future both Europeans and Indians will be interested alike in seeing that the defects in procedure which experience may disclose hereafter are removed. It will be a great help to the administration of justice to have community of interest instead of separation, as at present, as regards the rules of procedure, in criminal trials. Bombay, 25th July, 1922. L. A. SHAH. Minute by Dr. H. S. Gour, M.L.A. 1. While I am most anxious to placate the sentiments of English residents in this country, I cannot help observing that the compromise embodied in the report will not ensure racial equality, but tend rather to perpetuate racial inequality. When the Legislature was practically in the hands of the Executive the people's representatives could well disclaim their responsibility for such inequality. But now, with the elected majorities in the two Houses, their responsibility is greater, and it is that sense of responsibility that has impelled me to pen this minute. 2. I recognise the practical difliculty of eliminating all racial distinctions per saltum. It is a heritage of the past which we can only slowly shake off. But we must make a reasonable advance in this direction. 3. I agree with my colleagues that the definitions of "European British subject," both in the Government of India Act and in section 4 (1) of the Code of Criminal Procedure, are unsatisfactory; but I do not agree with my colleagues in their proposed amendment of that definition. And my reasons are these: (i) I think that both the definitions proceed from a wrong standpoint, and are not in accord with constitutional law. (ii) It seems to me that European British subjects who make India their permanent home cannot insist upon the preservation of their right of ex-territoriality. Having chosen India as their home they must submit to its ordinary laws. 4. The case of temporary visitors and dwellers is different, and though there is no reason why they should not equally submit to the ordinary British laws here, as they do in a Crown colony like Ceylon, and in a foreign Asiatic country like Japan, still we might, as a concession to our weaker brethren, suffer them differential treatment. 66 I would, then, limit the term " European British subject" to mean 66 any natural born subject of His Majesty born and domiciled in the United Kingdom of Great Britain, and not permanently resident in India." 5. I regret it, but I must, I suppose, agree to colonial officers with the British Army in India being also treated as falling within the definition of European British subjects. 6. Regarding the right of appeal against convictions, I think there is a great deal in Mr. Rangachariar's view, namely, that where the accused does not claim a special mixed jury there should be no appeal except against an acquittal. 7. Referring to section 26 (ii), I am not prepared to subscribe to the presumption there made that in a case arising between a European and an Indian racial considerations shall be deemed to arise. Nagpur, 29th July 1922. H. S. GOUR. APPENDIX A. LIST OF WITNESSES WHO GAVE EVIDENCE BEFORE THE COMMITTEE. 1. Mr. J. Chaudhuri, Bar.-at-Law, M.L.A, representing the Indian Association, Calcutta 2. Mr. P. Kennedy, Bar.-at-Law, Chairman, European ... 4. Mr. M. Barkat Ali, M.A., LL.B., Vakil, High Court, Lahore, and Vice-President, Punjab Provincial Muslim League, Lahore 5. Mr. D. W. Kathalay, B.A., LL.M., Pleader, Nagpur 7. Mr. Arikshan Sinha, Pleader, Judge's Court, Muzaffår pur 16th January. 17th January. 18th January. 8. Mr. Tehlram Gangaram, Honorary Secretary, National 19th January Liberal Association, Punjab and North-West Frontier | Province, Dera Ismail Khan 9. Mr. Satya Chandra Mukerji, M.A., LL.B., Advocate, High Court, Allahabad 10. Dr. Annie Besant, Adyar, Madras 11. Mr. Mahomed Yunus, Bar.-at-Law, M.L.C., Patna 12. Mr. G. W. Dillon, Bar.-at-Law, Allahabad 13. Mr. Sambanda Mudaliar, M.L.A.... 14. The Hon. Sir A. H. Froom, Member of Council of State 15. Mr. H. C. Desganes, Bar.-at-Law, Bareilly, United Provinces, representing the Anglo-Indian and Domiciled European Association, India 16. Mr. W. J. Keith, C.I.E., M.L.A., Divisional Commissioner, Burma 21st January. 23rd January. 24th January. 17. Mr. Rustomji Faridoonji, M.L.A., Deputy Commis. 25th January. sioner, Central Provinces 18. Dr. S. Swaminadhan, Bar.-at-Law, Madras 19. Mr. S. Satyamurti, High Court Vakil, Madras, repre- 26th January. senting the High Court Vakils' Association, Madras 20. The Hon. Syed Raza Ali, Allahabad, Member of the Council of State 21. Mr. C. O. Remfry, Bar.-at-Law, Calcutta, representing the European Association, Calcutta 27th January. 22. Mr. N. C. Ghose, Bar.-at-Law, Bhawanipore, Calcutta... 26. Syed Wazir Hasan, Advocate, Lucknow 28th January. LIST OF THOSE WHO WERE INVITED TO GIVE EVIDENCE BEFORE THE COMMITTEE, BUT WHO WERE UNABLE TO DO SO. 1. Mr. Ross Alston, Bar-at-Law, Allahabad. 2. Mr. Surendranath Mallick, M.L.C., representing the Indian Association, Calcutta. 3. Mr. T. V. Gopala Swami Mudaliar, B.A., B.L., High Court Vakil, Madras. 4. Mr. P. Ramanathan, B.A., Solicitor and Attorney-at-Law. Chintradipet Madras. 5. Mr. Bhulabhai Desai, Advocate, Bombay. 6. Mr. D. B. Binning, Bar.-at-Law. Bombay. 7. Mr. A. K. Fazlul Haq, Calcutta. APPENDIX B. EVIDENCE BEFORE THE COMMITTEE. Written evidence of the Indian Association, Calcutta. Oral evidence of Mr. J. Chaudhuri, Bar.-at-Law, M.L.A., representing the Indian Association, Calcutta. Written evidence of the European Association, Bihar Branch, Muzaffarpur. Written evidence of Mr. P. Kennedy, Bar.-at-Law, Chairman, the European Association, Bihar Branch, Muzaffarpur. Oral evidence of Mr. P. Kennedy, Bar.-at-Law, Chairman, the European Association, Bihar Branch, Muzaffarpur. Written evidence of Mr. R. G. Pradhan, B.A., LL.B., Vakil, High Court, Nasik. Oral evidence of Mr. R. G. Pradhan, B.A., LL.B., Vakil, High Court, Nasik. Note by Mr. R. G. Pradhan, B.A., LL.B., Vakil, High Court, Nasik, on the definition of European British subject. Oral evidence of Mr. Barkat Ali, M.A., LL.B., Vakil, High Court, Lahore, Oral evidence of Mr. Tehlram Gangaram, Honorary Secretary, National Oral evidence of Mr. Satya Chandra Mukerjee, Advocate, High Court, Allahabad. Written evidence of Dr. Annie Besant. Oral evidence of Dr. Annie Besant. Oral evidence of Mr. Mahomed Yunus, Bar.-at-Law, M.L.C., Patna. Oral evidence of Mr. G. W. Dillon, Bar.-at-Law, Allahabad. Oral evidence of Mr. Sambanda Mudaliar, M.L.A. Oral evidence of the Hon. Sir A. H. Froom, Member of the Council of State. Oral evidence of Mr. H. C. Desanges. Bar.-at-Law, Bareilly, representing Oral evidence of Dr. S. Swaminadhan, Bar.-at-Law, LL.D., Vakil, High Written evidence of the Madras High Court Vakils' Association. Oral evidence of Mr. S. Satyamurti, High Court Vakil, Madras, representing the High Court Vakils' Association, Madras. Oral evidence of the Hon. Sayed Raza Ali, Allahabad, Member of the Council of State. Written evidence of the European Association, Calcutta. Oral evidence of Mr. C. O. Remfry, Bar.-at-Law, Calcutta, representing the Oral evidence of Mr. N, C. Ghose, Bar.-at-Law, Bhawnipore, Calcutta. |