Dawson Miller, C.J.The question for determination in this case is whether this Court has any powers of superintendence or revision over the proceedings of a Special Tribunal consisting of three Commissioners appointed by the Government of Bihar and Orissa to try certain criminal offences under powers granted by Act IV of 1915 known as the Defence of India (Criminal Law Amendment) Act. Two points have been argued before us. The first is that the Defence of India Act does not, when properly interpreted purport to create Courts which shall not be subject to the superintendence of the High Court. The second is that it was not competent to the Governor-General in Council to create Courts of criminal jurisdiction which should not be subject to the superintendence of the High Court and if and in so far as the Act purports to do so it was ultra vires. The Act in Question was a temporary measure passed after the outbreak, of the war "to secure the public safety and the defence of British India and for the more speedy trial of certain offences." Its operation was to cease sit months after the termination of the war, and one of its main objects undoubtedly was to secure the speedy trial of certain of the more serious classes of offences which were regarded, as particularly undesirable in times of emergency. It provides that the Governor-General in Council may make rules for securing the public safety and the defence of British India (and further enables the Local Government by order in writing to direct that any person, accused of anything which is an offence under any of such rules or of any offence punishable with death or transportation or imprisonment for seven years, shall be tried by a Court composed of three Commissioner to be appointed under the Act, of whom two at least shall have certain specified legal qualifications and whose judgments shall be final and conclusive, and subject to any rules made by the Local Government the procedure to be followed by the Commissioners in trying accused persons is to be that of the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates. The 7th section, provides that the Code of Criminal Procedure, where inconsistent with the special procedure prescribed by or under the Act, shall not apply to the proceedings of the Commissioners Section 8 provides:

(1) Notwithstanding the provisions of the Code of Criminal Procedure, 1898, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of Commissioners appointed under this Act, and no Court shall have authority to revise any such order or sentence, or to transfer any case from such Commissioners, or to make any order u/s 491 of the Code of Criminal Procedure, 1898, or have any jurisdiction of any kind in respect of any proceedings under this Act.

(2) Nothing in Sub-section (1) shall be deemed to affect the power of the Governor-General in Council or the Local Government to make orders u/s 401 or 402 of the Code of Criminal Procedure, 1898, in respect of persons sentenced by Commissioners under this Act.

2. Section 11 provides:

No order under this Act shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

3. In October and November last what are known as the Bakr-id riots occurred in this province and on the 7th November 1917, in exercise of the powers conferred by the Act, Commissioners were appointed by the Local Government of Bihar and Orissa for the trial of persons under the Act in the districts of Gaya and Patna, In January this year the petitioner was tried for and convicted of the offence of dacoity by the Tribunal so appointed and was sentenced to undergo 7 years transportation u/s 395 read with Section 59 of the Indian Penal Code and the rents and profits of his property were declared forfeit to Government during that period, subject to such provision for his family and dependents as Government should think fit to allow. He now petitions this Court to exercise its powers of superintendence over the said Tribunal and to set aside the conviction, on the grounds (1) that the provisions of the Defence of India Act are beyond the legislative competency of the Governor-General in Council, (2) that the Act is invalid as it involves the abrogation of functions essential to the operative existence of this High Court and of all other High Courts, (3) that the trial of the petitioner was not under the provisions of the Code of Criminal Procedure but under certain rules framed by the Government of Bihar and Orissa, which rules are wholly ultra vires. These are the main grounds, but several others are set out in the affidavit upon which the petition is based, alleging irregularities in the conduct of the trial such as the wrongful admission of evidence, failure to give due weight to evidence on behalf of the petitioner, the severity of the sentence, etc.

4. The grounds upon which we are asked to interfere assume that the Tribunal created under the Act was one which by the provisions of the Act itself was not subject to the powers of superintendence or revision of the High Court, and this is the real ground of complaint. But as it was contended in the course of the argument that the Defence of India Act, when rightly interpreted, left the powers of superintendence by the High Court untouched, I propose first to deal with this argument. It was urged that as the word superintendence was not mentioned in the clauses of the Act above set out, it was not intended to create a Tribunal over which the High Court should have no powers of superintendence and that, in any case as this was a penal enactment, the words were not sufficiently explicit to warrant an interpretation which would exclude any sort of control by the High Court over the proceedings of the Commissioners. I agree that if a statutory enactment is ambiguous and capable of two interpretations, one is entitled to take into consideration that there are certain consequences which it may be presumed the Legislature did not intend to bring about and to prefer a construction which would avoid such consequences rather than one which would lead to them. See Vacher and Sons Ltd. v. London Society of Compositors (1913. A.C. 107 : 82 L.J.K.B. 232 : 107 L.T. 722 : 57 S.J. 75 : 29 T.L.R. 73 am unable, however, to discover any ambiguity or obscurity in the sections in question and with every desire to uphold the jurisdiction of this Court, I am unable to find any express or implied intention in the Act to create a Tribunal which should be subordinate to this or any other existing Court. It seems to me to be quite clearly expressed by the language of the Act that the decision of the Commissioners should be final and conclusive and that no other Court should have any powers of interference either by way of appeal, revision or in any other way whatsoever. In my opinion the wording of the Act is incapable of any other interpretation.

5. It remains to consider whether the Governor-General in Council had power to create Courts which should not be subject to the superintendence of the High Courts. The Defence of India Act received the assent of the Governor-General on the 19th March 1915. The present Government of India Act of 1915 (5 and 6 Geo. V. c. 61), which consolidated and re-enacted the provisions of earlier Statutes relating to the powers of the Governor-General in Council and the jurisdiction of the High Courts, did not come into operation until nearly a year later on the 1st January 1916, and this High Court was constituted by Letters Patent dated the 9th February 1916 issued under powers conferred by the last mentioned Act. Before that date the High Court at Calcutta exercised jurisdiction over this province It is necessary therefore to turn to the earlier Statutes regulating the powers of the Governor-General in Council and more particularly the Indian Councils Act 1861 (24 and 25 Vict. c. 67) and the Indian High Courts Act, 1861 (24 and 25 Vict. c. 104) and the Letters Patent constituting the High Court at Calcutta, to ascertain whether the Governor-General in Council had power to pass the enactment in question.

6. In the case of Parmeshwar Ahir v. Emperor 44 Ind. Cas. 185) [LQ/PatHC/1918/37] , 4 P.L.W. 157 : (1918) Pat. 97 : 19 Cr. L.J. 281 : 3 P.L.J. 537, decided by a Full Bench of this Court in February last, it was contended that the Governor-General had no power to create by legislative enactment new Courts of justice in India and that the provisions of the Defence of India Act purporting to do so were ultra vires. The judgment in that case dealt at length with the history of the powers conferred by successive Acts of Parliament from early times upon the Governor General in Council and decided that the Indian Legislature had power to create new Courts of Justice in India. I see no reason after further consideration to modify the opinion which I expressed in that judgment and it is not necessary to deal at length again with the history of this subject, but the point now raised as to the powers of superintendence of this Court was not directly argued or determined in that case.

7. At the time when the Defence of India Act was passed, the powers of the Indian Legislature were derived from the Indian Councils Act, 1861. Section 22 enacted that the Governor-General in Council should have power to make laws and regulations for repealing, amending or altering any laws or regulations whatever now in force or hereafter to Be in force in the Indian territories now (or hereafter) Words in brackets added by 55 & 56 Vict. c. 14, sec. 3 under the dominion of Her Majesty and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all Courts of Justice whatever and for all places and things whatever within the said territories." The powers here conferred are clearly wide enough in themselves to cover the case under consideration, but the section contains certain limitations which, it is contended, when read with the Indian High Courts Act, 1861, and the Letters Patent put it out of the power of the Indian Legislature to create any Criminal Courts which shall not be subject to the superintendence of the High Court. The limitations imposed by Section 22 on the powers there granted provide that the "Governor-General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of this Act... or any provisions of any Act passed in this present session of Parliament or hereafter to be passed in anywise affecting Her Majestys Indian territories or the inhabitants thereof." A few days later the Indian High Courts Act, 1861 (24 and 25 Vict. c. 104) was passed abolishing the Supreme and Sudder Courts and providing for the establishment of High Courts by Letters Patent in Bengal, Bombay and Madras, and Section 9 provides that each of the High Courts to be established under the Act shall have and exercise all such civil, criminal and other jurisdiction, original and appellate, "as Her Majesty may by such Letters Patent as aforesaid grant and direct... and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor General of India in Council the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts." Section 15 of the same Act provides that each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction."

8. It was argued on behalf of the petitioner that the powers of superintendence conferred by Section 15 could not be taken away by an Act of the Indian Legislature, such powers being conferred by an Act passed in the same session of Parliament as the Indian Councils Act and consequently, by reason of the proviso in Section 22 of that Act, placed beyond the control of the Governor-General in Council. The Defence of India Act, however, does not purport to take away any existing powers of superintendence but merely to create a new Court which shall be independent of the High Court. The superintendence conferred on the High Courts by Section 15 was confined to superintendence over those Courts which are subject to the appellate jurisdiction of the High Court, whereas the Tribunal over which superintendence is now asked for was by the very act which created it subject to no appellate jurisdiction whatever. It is said, however, that by the Letters Patent the High Court at Calcutta and subsequently this High Court are each constituted a Court of Appeal from all the Criminal Courts within the Province of Bihar and Orissa and, therefore, the High Courts acquired powers of superintendence which could not be interfered with by any act of the Indian Legislature. The Indian High Courts Act does not mention what Courts shall be subject to the appellate jurisdiction of the High, Court and does not anywhere expressly limit the legislative powers over all Courts conferred on the Governor-General in Council by the Indian Councils Act, but by Section 9 provides that "the High Court shall have such jurisdiction as Her Majesty by Letters Patent may grant and direct", and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers of the Governor-General in Council confers upon the High Courts the jurisdiction formerly exercised by the Supreme and Sudder Courts, It would appear, therefore, that in so far as jurisdiction is directly conferred on the High Courts by Section 9 it is subject to the legislative powers of the Indian Council, and in so far as it is left to be conferred by Letters Patent it is such as Her Majesty may thereby "grant and direct." Clause 27 of the Letters Patent of 1865 provides that "the said High Court of Judicature at Fort William in Bengal shall be a Court of Appeal from the Criminal Courts of the Bengal Division of the Presidency of Fort William and from all other Courts subject to its superintendence and shall exercise superintendence in such, cases as are subject to appeal to the said High Court by virtue of any law now in force." What is now the Province of Bihar and Orissa was in 1865 part of the Bengal Division and if this clause stood alone, there would be considerable force in the petitioners argument that all the Criminal Courts in those territories must be deemed to be subject to the appellate jurisdiction of the High Court and, therefore, subject to its powers of superintendence, but by Section 44 of the same Letters Patent it was ordained and declared that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor-General in Council exercised at meetings for the purpose of making laws and regulations and also of the Governor-General in cases of emergency under the provisions of an Act of the twenty-fourth and twenty, fifth years of our Reign, Chapter 67, and may be in all respects amended and altered thereby." No words could, in my opinion, more clearly express the intention of "directing" within the meaning of Clause 9 of the Indian High Courts Act that the powers granted to the High Court by the Letters Patent were subject to the Legislative powers of the Governor-General in Council which he already possessed by virtue of Section 22 of the Indian Councils Act. There is therefore nothing inconsistent either in the High, Courts Act or in the Letters Patent with the exercise of these powers. It should be observed further that the Letters Patent do not purport to confer a new power on the Governor-General but merely to preserve intact existing powers. To meet this difficulty the learned Counsel for the petitioner was driven to contend that Clause 44 was ultra vires, and a passage was referred to in the judgment of Sir Richard Couch, C.J., in Queen v. Gerald Meares 14 B.L.R. 106 : 22.W.R. Cr. 54 in support of this contention. I think the meaning of that passage is merely that Clause 44, in so far as it recognised and retained the legislative powers over all Courts already conferred on the Governor-General by Statute, was open to no objection, but if it purported to grant new powers not conferred by Statute it might create a difficulty. Having regard to the decision arrived at in that case it became unnecessary to determine this point, and the dictum referred to is certainly no authority for the contention that Clause 44 is ultra vires. It Seems to me that it was clearly competent to Her Majesty under the powers conferred by Section 9 of the High Courts Act to direct by Her Letters Patent that the existing powers of the Indian Legislature over all Courts should remain unimpaired. It is conceded that the Indian Legislature has power to create new Courts and that it can also remove a territorial area from the appellate jurisdiction of an existing High Court, as was decided by their Lordships of the Privy Council in Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 Sar. P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.), but it is contended that it has no power In create within the limits of the territorial jurisdiction of a High Court a new Court which shall not be subject to the superintendence of the High Court. As already pointed out, the High Courts powers of superintendence are limited by the High Courts Act to Courts subject, to its appellate jurisdiction [see Darbari Panjiara v. Bhathi Roy 23 Ind. Cas. 883 : 41 C. 915 : 18 C.W.N. 575 : 19 C.L.J. 294 ] There is no other statutory enactment granting powers of superintendence, nor is there any Statute directing what Courts shall be subject to the appellate jurisdiction of the High Court So far as any statutory enactment is concerned, it is left to the Indian Legislature under its general powers of passing laws and regulations for all Courts to determine this question. The Letters Patent themselves, which give the High Court appellate powers over certain other Courts, even if they be taken to be as binding on the Indian Legislature as an Act of Parliament, expressly declare that their provisions shall be subject to the powers of the Indian Legislature. How then can it be said that the Indian Legislature has no power to direct which Courts shall and which shall not be subject to the appellate jurisdiction of the High Court and incidentally to its powers of superintendence In my opinion the powers of the Governor-General in Council to pass the Defence of India Act, providing for the creation of new Courts of criminal jurisdiction independent of the control or superintendence of the High Court, is clearly established. In Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 Sar. P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) (ubi sup ) the question for determination was whether the administration of civil and criminal justice, within a part of the territories over which the High Court at, Calcutta exercised appellate jurisdiction, could be removed by an Act of the Governor General in Council from that jurisdiction and vested in such officers, as the Lieutenant Governor might appoint. In delivering the judgment in that case Lord Selbourne said: "The question therefore, is whether an exercise of the legislative power of the Governor-General in Council purporting to exclude the jurisdiction of the High Court within these particular districts is inconsistent with any of the provisions of 24 and 25 Vict. c. 104. Now it appears to their Lordships from the express terms of the Act 24 and 25 Vict. c. 104 that (unless there should be anything to the contrary in the Letters Patent under which the High Court is established) the exercise of jurisdiction in any part of Her Majestys Indian territories by the High Courts was meant to be subject to and not to be exclusive of the general Legislative power of the Governor-General in Council as to all Courts of Justice whatever." In a later passage in the same judgment when considering the effect of the 9th section of 24 and 25 Vict. c. 104, Lord Selbourne says: "The authority of the Indian Legislature over the jurisdiction of the High Courts (so far at all events as the exercise of that authority might be consistent with Her Majestys Letters Patent) is here distinctly recognised." I have already pointed out that there is no express enactment of Parliament which limits the exercise of the powers of the Indian Legislature in the direction in which they have been exercised in the present case, and I am unable to find anything in the Letters Patent themselves inconsistent with the exercise of such powers. On the contrary those powers are there distinctly saved.

9. I may refer here briefly to the Government of India Act, 1915, and to the establishment of this High Court by His Majestys Letters Patent of the 9th February 1916. Section 106 of the Act declares that the several High Courts are Courts of record and provides that they shall have such jurisdiction, original and appellate, and all such power and authority as are vested in them by Letters Patent and subject thereto such jurisdiction power and authority as are vested in them at the commencement of the Act. Here we have a consolidating act repealing previous Statutes, and it is legitimate to suppose that if the Legislature in 1915 considered that any part of the Letters Patent establishing the High Court at Calcutta was ultra vires, some effect would have been given to this view in the new Act. Section 107 replaces Section 15 of the former Act and declares that each of the High Courts shall have superintendence over all Courts for the time being subject to its appellate jurisdiction. This seems to me to contemplate the establishment of Courts which do not fulfil the requirements of the section. Section 65 declares the powers of the Governor-General in Legislative Council. It includes inter alia power to make laws "for all persons, for all Courts and for all places and things within British India," The limitations on that power are of similar import to those contained in Section 22 of the Act of 1861, and Sub-section (3) provides that the Governor-General in Legislative Council has not power, without the previous approval of the Secretary of State in Council, to make any law empowering any Court other than a High Court to sentence to the punishment of death any of His Majestys subjects born in Europe or the children of such subjects or abolishing any High Court. The limited nature of the disability imposed by this sub-section is significant. The Fifth Schedule, which enumerates the sections of the Act which may be repealed or altered by the Governor-General in Legislative Council, includes Section 106 already referred to which deals with the jurisdiction of the High Courts. It appears to be dear from a perusal of this Act that the powers of the Indian Legislature over the High Courts and all other Courts in British India, except where expressly limited, are affirmatively recognised. The Letters Patent by which this High Court was established do not materially differ from those of the High Court at Calcutta. Clause 20 provides that "the High Court of Judicature at Patna shall be a Court of Appeal from the Criminal Courts of the Province of Bihar and Orissa and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cases as were immediately before the publication of these presents subject to appeal to the High Court of Judicature at Fort William in Bengal by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Patna by any law made by competent legislative authority for India." Clause 41 declares that "all the provisions of these Our Letters Patent are subject to the Legislative powers of the Governor-General in Legislative Council... and may be in all respects amended and altered thereby." It does not appear from the Letters Patent constituting this Court and the Act of 1915 tinder which they were issued that this Court can claim any powers of superintendence which were denied to the High Court at Calcutta.

10. I have dealt thus far with the construction of the Statutes and the Letters. Patent without reference to the numerous decisions which were called to our attention during the course of the argument. It would serve no useful purpose to discuss each of those cases in this judgment, as many of them throw very little light upon the matters now in controversy. There are, however, apart from the decision of the Privy Council in Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) already referred to, many decisions of the High Courts of this country where the powers of the Indian Legislature to amend or alter the clauses of the Letters Patent have been recognized and upheld. In Runjit Singh v. Meherban Koer 23 Ind. Cas. 883 : 41 C. 915 : 18 C.W.N. 575 : 19 C.L.J. 294 Jackson, J., sitting as a member of a Full Bench of the Calcutta High Court said: "By the 41th clause, which only gives effect to Clause 9 of the Statute 24 and 25 Vict., the Letters Patent are expressly made subject in all particulars to the Legislative powers of the Governor-General in Council", and decided that the Indian Legislature had power by Act VI of 1871 to direct that appeals from Subordinate Judges and Munsifs where the subject matter was under Rs. 5,000 should lie to the District Judge and not to the High Court notwithstanding Clause 16 of the Letters Patent. In In re James Currie 21 B. 405 : 11 Ind. Dec. 273 it was held by Strachey, J., that the effect of Clause 44 was to make Clause 18 as well as the other clauses of the Letters Patent subject to the Legislative powers of the Governor-General in Council and consequently that Act V of 1872 removing the Province of Sindh from the jurisdiction of the Bombay High Court curtailed the jurisdiction of the Judge of that High Court when sitting as Commissioner of the Insolvent Court notwithstanding Clause 18 of the Letters Patent. Again in the case of Vasudeva Upadyaya v. Visvaraja Thirthasami 20 M. 407 : 7 Ind. Dec.289 the Madras High Court had to consider the effect of Clause 588 of the CPC then in force upon Clause 15 of the Letters Patent, which directed that an appeal should lie to the High Court from the judgment of a single Judge of the Court. One of the learned Judges, Benson, J., dealt at length with the Acts of 1861 and the Letters Patent and expressed an emphatic opinion that Clause 15 of the Letters Patent was subject to the Legislative powers of the Governor-General in Council and could be amended thereby. Another case to the same effect is that of Achaya v. Ratnavelu 9 M. 253 : 10 Ind. Jur. 59 : 3 Ind. Dec. 573 and the same view was expressed by Sir John Edge, C.J., and Tyrrell, J., in the Allahabad High Court in the case of Banno Bibi v. Mehdi Husain 11 A. 375 : A.W.N. (1889) 70 : 6 Ind. Dec. 667. There are other decisions of a similar nature, but those quoted are sufficient to show that the High Courts of India have been unanimous in their opinion that the clauses of the Letters Patent do not control but are controlled by the Legislative powers of the Governor-General in Council.

11. It was contended, however, that the High Court has in fact exercised powers of superintendence in cases where it had no appellate jurisdiction. In one sense this proposition may be said to be well founded, There are three classes of cases which may be considered. In the first place, superintendence has been exercised in cases which are not subject to appeal but the superintendence is ever the Court and its exercise is not confined to cases where a right of appeal lies to the High Court. Indeed it may be said that this special power of superintendence is not as a rule exercised in cases where there is an adequate remedy by other proceedings such as appeal or revision. If the Subordinate Court is one from which an appeal lies to the High Court only in certain specified cases, then that Court is subject to the appellate jurisdiction of the High Court, and that is sufficient to attract the power of superintendence conferred by Section 15 of the Charter Act and that power is exercised over the Subordinate Court in cases where a direct appeal does not lie [see In the matter of John Thompson 6 B.L.R. 180 : 14 W.R. 257]. Next where the High Court has powers of revision over Subordinate Courts or where the power of reference to the High Court exists, this has been held to be a modified form of appeal and where this exists, the power of superintendence has been exercised over the proceedings of the Courts in question. A third class of cases where superintendence is exercised although there is no appellate jurisdiction, arises where the power to superintend is conferred upon the High Court by the constituent act of the Subordinate Court. In this last class of cases the power of superintendence is independent of Section 15 of the Charter Act. A few instances may be referred to by way of illustration. In Municipal Officer, Aden v. Ismail Hajee 30 B. 246 : 3 C.L.T. 5 : 3 A.L.J. 53 : 10 C.W.N. 186 : 8 Bom. L.R. 4 : 1 M.L.T. 1 : 16 M.L.J. 73 : 83 L.A. 38 : 8 P.C.J. 901 (P.C.) a suit was instituted in the Court of the Political Resident at Aden for possession of Immovable property alleged to have been wrongfully seized by the defendant in the suit, who pleaded that he acted under the orders of the Political Resident himself. Application was made to the High Court at Bombay to transfer and try the case there on the ground that a fair trial could not be obtained before the Political Resident in a case where his own conduct was questioned. By Clause 13 of the Letters Patent of the Bombay High Court that Court was given power to remove and to try and determine as a Court of extraordinary original jurisdiction any suit falling within the jurisdiction of any Court subject to its superintendence. It was contended that as the High Court at Bombay had no appellate jurisdiction over the Aden Court it had no powers of superintendence. The case turned not upon Section 15 of the Charter act, but upon Act II of 1864 which regulated the administration of justice at Aden. The preamble of the Act recited that it was expedient to provide for the superintendence or revision of certain judgments and proceedings of the Resident which were subject to no superintendence or revision except in so far as they were subject to appeal to Her Majesty in Council. It then directed that no appeal should lie to the High Court at Bombay from any decision or order of the Resident, but provided for a reference thereto in a large number of cases and gave the High Court power to frame rules regulating the practice and procedure of the Residents Court. Lord Macnaghten in delivering their Lordships judgment held that this was sufficient Superintendence to comply with Clause 13 of the Letters Patent. In dealing with the contention of the appellant that the powers of superintendence and transfer granted by Section 15 of the Charter Act were confined to cases where there was appellate jurisdiction and that the superintendence mentioned in the Letters Patent upon which depended the power of removal should be restricted in a similar sense, Lord Macnaghten pointed out that "the power to transfer contained in the Charter Act has nothing to do with the power of removal conferred by the Letters Patent and the Letters Patent make superintendence, not appellate jurisdiction, the condition of exercise of the power of removal which the High Court at Bombay has put in force."Pirbhai Khimji v. Bombay, Baroda and Central India Railway Co. 8 B.H.C.R.O.C.J. 59 is another case to the same effect, where the power of transferring a case from the Bombay Small Cause Court was asserted by the High Court not under the Charter Act but under Clause 13 of the Letters Patent, and not on the ground that it had appellate jurisdiction but on the ground that it had certain powers of superintendence conferred by the Acts constituting the Small Cause Courts. It is quite clear that cases of this nature afford no authority for the proposition that the power of superintendence conferred by Section 15 exists where there is no appellate jurisdiction. This view was clearly expressed by Mookerjee and Beachcroft, JJ., in Durban Panjiara v. Bhathi Roy 23 Ind. Cas. 883 : 41 C. 915 : 18 C.W.N. 575 : 19 C.L.J. 294. Cases where the High Court has exercised superintendence over the proceedings of Magistrates acting u/s 145 of the Criminal Procedure Code were also relied on by the petitioner. These cases afford instances of both the first and second of the three classes of cases above referred to. Appeals to the High Court are provided by the Criminal Procedure Code from the Sessions Judge or Additional Sessions Judge and to a more limited extent from the Presidency Magistrate, but not from the Courts of inferior Magistrates. The High Court, how-ever, has by Section 435 powers of revision over the proceedings of any inferior Criminal Court within the local limits of its jurisdiction, and to this extent such inferior Courts are subject to a modified form of appeal to the High Court. And although the proceedings of Magistrates acting u/s 145 and certain other sections are exempted from the revisional powers of the High Court conferred by the 435th section, nevertheless the High Court has exercised the power of superintendence over the proceedings of the inferior Courts purporting to act under the exempted section, the Court itself being in the sense indicated subject to the appellate jurisdiction of the High Court, This exercise of jurisdiction under the powers given by Section 15 of the Charter Act, in my opinion, may be justified on the grounds stated and does not militate against the general proposition that the section confers the right of superintendence only over Courts subject to the appellate jurisdiction of the High Court.

12. An examination of the cases in which the High Court has interfered where orders have been passed u/s 145 and the other excepted sections shows that the right of interference is only exercised where the orders made were in fact made without jurisdiction or when the Subordinate Court had refused to exercise its jurisdiction. In such cases it has been held that the orders were not in fact made under those sections at all and the mere fact that they purported to be made in compliance therewith does not make them so. The restrictions imposed by Section 435(3) in such cases do not apply. In Hurbullubh Narain Singh v. Luchmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. 725 the judgment of Prinsep and Ameer Ali, JJ., shows that in the opinion of these learned Judges the powers of the Indian Legislature were beyond question, but it was held that the effect of Section 435 was not entirely to deprive the High Court of its jurisdiction over orders purporting to be made u/s 145. That case was decided in 1898 when the present Criminal Procedure Code had just come into force, but Section 435 was expressed in the same terms as the corresponding section of the Code of 1882, and following earlier cases it was held that if the order challenged were without jurisdiction, the mere fact of the order purporting to be made under one of the excepted sections would not bring it within these sections so as to debar the exercise of powers u/s 15 of the Charter Act. In Ananda Chandra Bhuttacharjee v. Carr Stephen 19 C. 127 : 9 Ind. Dec. 530 decided under the Code of 1882, a similar view was expressed by Sir W. Comer Petheram, C.J., who said: "The mere statement that an order is made u/s 144 (one of the excepted section), if it is not such an order as is contemplated by the section and could not be made under it, does not make it an order under that section and consequently any Court having jurisdiction to review orders u/s 435 would not be prevented from doing so by the proviso to that section, because the order under review, though headed u/s 144, was not in fact made under that section at all." In the former of the two cases just referred to, the order was not interfered with as it was held to have been properly made u/s 145, but the right of interference asserted and upheld in that case was based upon Section 15 of the Charter Act. In the latter case the right to interfere was asserted both u/s 435 of the Code which gave powers of revision and u/s 15 of the Charter Act, but in neither case nor indeed in any of the cases called to our notice where orders of the class now under consideration were questioned does it clearly appear by what chain of reasoning the inferior Court was assumed to be subject to the appellate jurisdiction of the High Court. I have already expressed my opinion that the inferior Court being in some respects subject to the powers of revision by the High Court, there was a modified right of appeal from that Court to the High Court. But there is another view by which the same result may be arrived at. This is the view urged by the learned Counsel for the petitioner to which I referred in an earlier part of this judgment. By Clause 20 of the Letters Patent this High Court is constituted a Court of Appeal from the Criminal Courts of the Province. Section 6 of the Criminal Procedure Code enumerates the five classes of Criminal Courts in British India in addition to the High Courts and the Courts constituted under any law other than the Code for the time being in force. The High Court can, therefore, exercise all the power incident to appellate jurisdiction including superintendence over those Courts, except in so far as that jurisdiction is excluded by competent legislative authority. The fact that some of the attributes of appellate jurisdiction are removed does not remove the others and unless the Court is expressly declared to be entirely removed from the appellate jurisdiction of the High Court, the power of superintendence at least remains. This is the contention put forward on behalf of the petitioner. If it be correct it would justify the High Courts in assuming that their powers of superintendence under the Charter Act can be exercised in the cases last considered. I prefer to express no opinion on this point, for it is clear to my mind that there is a vast difference between a case where a residuum of appellate jurisdiction remains and a case like the present where the Court never was from its inception subject to any kind of appellate jurisdiction whatever. In the one case the appellate powers conferred by the Letters Patent are not entirely excluded. In the other case they never existed and unless it is to be held that the powers granted by Letters Patent cannot be altered or re-amended by the Indian Legislature, there never was from the very first any appellate jurisdiction or jurisdiction of any sort which the High Court could exercise in the present case.

13. It is instructive to consider the view taken of Section 15 of the Charter Act when it first came before the High Court for consideration. Bhyrub Chunder v. Shama Soonderee Debea 6 W.R. Act X Rulings 68 was one of the first cases, if not The first, in which this section was considered. It came before the High Court at Calcutta in 1866 [Bhyrub Chunder v. Shama Soonderee Debea 6 W.R. Act X Rulings 68]. It was a rent suit in which the order of the Deputy Collector had been reversed on appeal to the Collector. Application was then made to the High Court to set aside the order of the Collector under its powers of superintendence, on the ground that under Act X of 1859 the appeal lay not to the Collector but to the Zillah Judge and the former had therefore, acted without jurisdiction. The Court, consisting, of Norman and Jackson, JJ., set aside the Collectors order, holding that they had jurisdiction to interfere on the ground that the Collectors Court was one over which at the time of the passing of the Charter Act the Sudder Court possessed appellate jurisdiction which the High Court inherited. This was followed in 1867 by the case of Gopal Singh v. Court of Wards 7 W.R. 430. That was a case in which a summary decree for rent had been obtained in 1851 under Regulation VI of 1799 against the petitioners father. After various unsuccessful attempts to execute the decree and after the death of his father fresh execution proceedings were commenced against the petitioner as heir in 1866 in respect of the same debt and he was arrested and lodged in prison. Had the decree been obtained under the provisions of Act X of 1859, there would have been no doubt as to the jurisdiction of the High Court but under the law existing in 1851 when the decree was obtained, the Collector was not subject to the appellate jurisdiction of the Sudder Court. The case was admittedly one calling for interference if the High Court had power to entertain it, but the majority of the Court consisting of Norman, Seton Karr and Jackson, JJ., refused to interfere u/s 15 of the Charter Act, solely on the ground that the Court over which superintendence was claimed was not subject to the appellate jurisdiction of the High Court. The majority of the Court in that case appear to have resisted in an exemplary manner the temptation to make bad law in a hard case notwithstanding the dissent of one of their number.

14. It may perhaps be possible here and there amongst the voluminous reports of cases decided by the various High Courts to find some instance of the exercise of superintendence which might be difficult to justify on the ground of appellate jurisdiction, but I am satisfied that the result of considered opinion is that the power of superintendence granted by the 15th section of 24 and 25 Vict. a 104 depends upon appellate jurisdiction in one or other of the forms already indicated. I am also satisfied that it is within the legislative powers of the Governor-General in Council to amend or alter the Letters Patent and to direct that a particular Court shall not be subject to the appellate jurisdiction of the High Court, thereby removing a condition which is essential to the exercise of the power of superintendence granted by the Charter Act.

15. Before concluding this judgment I think it is desirable to say a word concerning one of the points raised in the petition, although no argument in support of it was addressed to us on behalf of the petitioner. The grounds upon which we are asked to interfere are contained in the petition and are set out in the earlier part of this judgment. The third ground alleges that the trial was not under the provisions of the Code of Criminal Procedure but under certain rules framed by the Local Government, and that the same are ultra vires. These rules were not discussed at the hearing, but were put in by the learned Advocate-General in order to complete the record. They are contained in Notification No. 2392 C issued by the Lieutenant-Governor of Bihar and Orissa in Council, dated the 27th September 1915. The Notification prescribes rules of procedure for trial by Commissioners appointed under the Act. The rules modify in some respects the procedure provided by the Code. On reading these rules. I am unable to find that they exceed in any particular the powers conferred on the Local Government by the Defence of India Act. That the Lieutenant-Governor in Council has power to alter or amend the Criminal Procedure Code can hardly be Questioned and as the rules prescribed by the local Government are in my opinion clearly authorised by the Defence of India Act. I find that the rules in question are not ultra vires but valid and binding. I would, therefore, reject this petition on the ground that this Court has no jurisdiction to superintend the proceedings of the Commissioners appointed under the Defence of India act.

Mullick, J.

16. I agree with the learned Chief Justice that we have no power to interfere.

17. I think it is necessary at the outset to consider what is meant by jurisdiction, in the High Courts act of 1861 and in the Letters Patent granted in 1862 and 1865 to the Calcutta High Court Jurisdiction in its larger sense is the right to determine some jural relation between the parties; in its narrower sense it may mean the power to do a certain thing after the Court has taken cognisance. In the former sense jurisdiction may be classified with reference to (1) parties, (2) subject-matter, (3) locality, and (4) pecuniary valuation. With reference to each of these heads the. Court may exercise original and appellate jurisdiction, ordinary or extraordinary, as the case may be.

18. The Supreme Court which was constituted by Act of Parliament had no appellate jurisdiction. It had a local original jurisdiction with reference to subject-matter, while the Sudder Dewani and Sudder Nizarnat Adalats, which were the Companys Courts and were established by the Act of the Indian Legislature had a local and general appellate jurisdiction over the Companys Courts.

19. It is, I think, quite clear that the jurisdiction conferred upon the High Courts by the High Courts act was jurisdiction in the wider sense. In one view appeal, revision, reference and superintendence are all different forms of the exercise of appellate jurisdiction [Chappan v. Moidin Kutti 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. 49 (F.B.) and Show Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323]. In another view each of these is a different head of jurisdiction. So it has been held that revisional jurisdiction is not necessarily a part of appellate jurisdiction, for a Court which has no appellate jurisdiction over another may still exercise revisional jurisdiction over it [Sarat Chandra Singh v. Brojo Lal Mukerji 30 C. 986]. In my opinion revision and superintendence are incidents of appellate jurisdiction, which term is used in this wide sense in the High Courts act.

20. Learned Counsel on behalf of the petitioner goes further and contends that the appellate jurisdiction of the High Court of Patna on the criminal side, as defined in Clause 20 of the Letters Patent, extends over all Criminal Courts within the Province independently of the right of appeal, revision, reference or superintendence. It will be necessary to examine this contention more fully at a later stage.

21. Let us next examine what superintendence means in Section 15 of the High Courts Act. Under that section the High Court has superintendence over all Courts, which may be subject to its appellate jurisdiction. This was a new jurisdiction so far as the Supreme Court was concerned, but not so with regard to the Suddar Adalats which by enactment were Courts of general superintendence over all inferior Courts, Governor of Bengal v. Moti Lal Ghosh 20 Ind. Cas. 81 [LQ/CalHC/1913/367] : 41 C. 173 : 17 C.W.N. 1 : 18 C.L.J. 452 : 14 Cr. L.J. 321. This jurisdiction was not ordinarily intended to take the place of appeal or revision. It was intended that the High Court should ordinarily exercise this jurisdiction only when the inferior Court had wrongly declined jurisdiction or exceeded its jurisdiction. In Shiva Nathaji v. Joma Kashinath 7 B. 344 : 7 Ind. Jur. 656 : 4 Ind. Dec 229 (F.B.) the jurisdiction is thus described, "The superintending function is to compel the exercise of judicial authority on the subject and not beyond it; to define the subject by the elements composing it and by reference to the prescribed or intended external conditions and to exact obedience to the law of procedure in gathering the materials for adjudication and in giving effect to them. It is no part of that function to substitute the opinion of the superintending Court for that of the Courts superintended in matters assigned by the Legislature to the cognisance of the latter. What it can exact is a real endeavour in good faith to apply the law."

22. But although these rules are of general application in cases of ordinary character", there is a small residue of jurisdiction which the Courts have left undefined. So the Court has interfered (1) where an inferior Court has declined to inquire into the genuineness of an assignment, Greesh Chunder Lahooree v. Kasheessuree Debia 8 W.R. 26 (2) where a Court has declined to exercise its power of restitution, Gobind Coomar Chowdhry v. Kisto Coomar Chowdhry 7 W.R. 520 : B.L.R. Sup. 714, (3) where a Collector acting as a rent Court has made a wrong order transferring a decree for execution to another Court Nilmoni Singh Deo v. Taranath Mukerjee 9 C. 295 : 12 C.L.R. 361 : 9 I.A. 174 : 5 L.R. 130 : 4 P.C.J. 392 : 6 Ind. Jur. 517 : 4 Ind. Dec. 846 (P.C.).

23. The case of Parmmar Singh v. Kailaspati 8 W.R. 26 recently decided in this Court does not seem to me to conflict with the above cases. It merely lays down what class of errors the High Court will ordinarily correct with reference to orders made u/s 145, Criminal Procedure Code.

24. But the, general superintendence conferred by Section 15 of the High Courts Act is different from the superintendence spoken of in Clauses 13 and 27 of the Letters Patent of 1865. Thus in Pirbhai Khimji v. Bombay, Baroda and Central India Railway Co. 8 B.H.C.R.O.C.J. 59 it was held that although the Bombay High Court might not have appellate jurisdiction in its strict sense over the Bombay Presidency Small Cause Court, yet as it had a limited Superintendence, it was sufficient to give it power to transfer suits under the extraordinary original jurisdiction conferred by Clause 13 of the Letters Patent of the Bombay High Court. To like effect is the decision of Lord Macnaghten in Municipal Officer, Aden v. Ismail Hajee 30 B. 246 : 3 C.L.T. 5 : 3 A.L.J. 53 : 10 C.W.N. 186 : 8 Bom. L.R. 4 : 1 M.L.T. 1 : 16 M.L.J. 73 : 83 L.A. 38 : 8 P.C.J. 901 (P.C.) in regard to the right of transfer of a suit from the Court of the Resident of Muscat. It was there held that the power of transfer within the meaning of Clause 13 did not (depend on appellate jurisdiction as did the power of superintendence u/s 15 of the High Courts Act.: A limited power of superintendence to make rules for regulating practice was held sufficient to give jurisdiction under Clause 13 of the Letters Patent.

25. The question before us is whether this general superintendence can be exercised by the High Court at Patna over the Tribunal by whom the petitioner was convicted.

26. This Court has already decided that the Tribunal is a Court which the Indian Legislature was competent to create by the Defence of India act of 1915. It was clearly a Criminal Court. It was acting judicially and the right of superintendence extends over all Courts acting judicially, provided the other conditions of Section 15 of the High Courts act are satisfied. So it has been held that the High Court has superintendence over a Collector, who is a Revenue Officer, when he refuses to refer a case u/s 18 of the Land Acquisition Act, Administrator-General of Bengal v. Land Acquisition Collector 12 C.W.N. 241, and again where a Settlement Officer who is ordinarily a Revenue Officer has directed while acting judicially the prosecution of a person for an offence against public justice, it has been ruled that he is a Court subject to the superintendence of the High Court, Har Prasad Das v. Emperor 19 Ind. Cas. 197 [LQ/CalHC/1913/56] : 40 C. 477 : 17 C.L.J. 245 : 17 C.W.N. 647 : 14 Cr. L.J. 197 (F.B.).

27. Therefore this High Court has superintendence, unless it can be shown that the Tribunal is not subject to the Courts appellate jurisdiction.

28. The learned Advocate-General contends that where there is no power of appeal, revision or reference, there can be no appellate jurisdiction. Parsons, J., in In re Rattansee Purshottum 21 B. 471 : 1 Bam. L.R. 840 : 12 Ind Dec. 845 went further and held that even the power to entertain references and to exercise original criminal jurisdiction in certain circumstances did not give appellate jurisdiction so as to attract the operation of Section 15 of the Charter act. On the other hand, it has been held in the Calcutta High Court that reference is a modified form of appeal. The learned Advocate-General does not press the view of Parsons, J., but admits that a Court is subject to appellate jurisdiction if there is a right of appeal, revision or reference from it, howsoever limited in extent. Learned Counsel for the petitioner would extend the jurisdiction still farther and urges that under Clause 27 of the Letters Patent of the Calcutta High Court which defines its criminal appellate jurisdiction, the. High Court has appellate jurisdiction over every Criminal Court within the Province regardless of the right of appeal, revision or reference.

29. In my opinion this last view is correct. The clause does not confer the right of appeal; it leaves the right of appeal to be controlled by the Legislature; it is an enabling provision which gives the Court jurisdiction to try such appeals as the Legislature may direct it to try. This was the sense in which the corresponding clause regarding civil appellate jurisdiction in the Letters Patent of 1855 of the Calcutta High Court was construed by the learned Judges in Runjit Singh v. Meherban Koer 2 C.L.R. 391 : 3 C. 662 : 1 Ind. Dec. 1005 (F.B.).

30. It is true that Section 15 of the High Courts Act does not define appellate jurisdiction though it might have dona so, but the object of the act was that the Crown should by Letters Patent grant jurisdiction and direst the exercise of powers and in my opinion the intention of the Letters Patent was that criminal appellate jurisdiction should extend over (1) all Criminal Courts within the province, (2) all other Courts (namely, Courts outside the Province or Courts other than Criminal Counts) subject to its superintendence. In part therefore that jurisdiction was founded on a territorial basis.

31. This being so, has the Government of India enacted that the Court under consideration is not subject to the superintendence of the High Court; or that it is not subject to the High Courts appellate jurisdiction; if so, is such legislation ultra vires in either respect

32. In my opinion the Defence of India Act does enact expressly that the High Court shall have neither superintendence, nor appellate jurisdiction. I am also of opinion that the enactment was within the, powers of the Legislature.

33. It is contended on behalf of the petitioner that the power of superintendence is similar to the power of interference by writ of certiorari and that the Court will not assume that the power is taken away without an express Statute to that effect Rex v. Moreley (1760) 2 Burr. 1040 : 1 B 231 : 97 E.R. 606. The answer to this is that here there is a Statute which by its eighth section clearly enacts that no Court shall have any jurisdiction of any kind in respect of any proceedings under this Act, in other words, the exclusion of jurisdiction is express.

34. It also seems clear that the trial of the petitioner was the proceeding of a Court constituted under the Act, and it is not seriously disputed that the proceeding was a proceeding under the Act. The only substantial question is whether the Legislature in India acted ultra vires in enacting Section 8 of the Act.

35. It is admitted that the legality of the Defence of India Act must be tested not by the Government of India Act of 1955 but by the Indian Councils Act of 1861. We must see, therefore, whether Section 22 of this last mentioned Act authorises the Government of India to legislate so as to affect (1) Section 15 of the High Courts Act of 1861, or (2) the Letters Patent granted to the Calcutta High Court in 1865.

36. Now Section 9 of the High Courts Act of 1361 (24 and 25 Vict. c. 104) provides that the High Court to be established at Fort William in Bengal shall have such civil, criminal, admiralty and vice-admiralty, intestate and matrimonial jurisdiction, original and appellate, as Her Majesty may by Letters Patent grant and shall exercise such powers and authority in relation to the administration of justice in the Presidency as Her Majesty may direct, subject to such directions and limitations as to the exercise of original, civil and criminal jurisdiction beyond the limits of the Presidency towns as may be prescribed by the Letters Patent. In the second part of the section it is provided that unless the Letters Patent have otherwise directed in the matter of jurisdiction and exercise of power and authority, the new High Court is to have all the power and authority vested in the Supreme Court, Sudder Dewani Adalat and the Sudder Nizamat Adalat at Calcutta at the time of the abolition of those Courts, This second part also enacts that subject to the Legislative powers of the Governor General in Council in relation to the matters aforesaid, that is to say, jurisdiction, power and authority in the administration of justice, the High Court is to have and to exercise the jurisdiction, power and authority of the abolished Courts.

37. It is contended that the Legislative powers of the Governor-General are saved only in respect of such powers as the abolished Courts had, and not as to any new powers that have been conferred by the Letters Patent upon the High Court.

38. It is further argued that the power of superintendence u/s 15 of the Act was a new power and therefore no Act of the Governor-General in Council could in any way, whether directly or indirectly, affect the Courts power to superintend the proceedings of the Tribunal now in question.

39. Now although in Queen v. Gerald Mears 14 B.L.R. 106 : 22.W.R. Cr. 54 Couch, C.J., was of opinion that the legislative powers of the Governor-General were limited to what has been called the inherited powers of the High Courts and although the same view was taken by Markby, J., in Feda Hossein, In the matter of 1 C. 431 : Ind. Dec. 270 the weight of authority is, I think, against this view. In Runjit Singh v. Meherban Koer 2 C.L.R. 391 : 3 C. 662 : 1 Ind. Dec. 1005 (F.B.) their Lordships of the Calcutta High Court were of opinion that the 44th clause of the Letters Patent of 1865 only gives effect to Clause 9 of the High Courts Act of 1861 and that the Letters Patent are expressly made subject in all particulars to the Legislative powers of the Governor General in Council. To like effect is the decision of their Lordships of the Madras High Court in Achaya v. Ratnavelu 9 M. 253 : 10 Ind. Jur. 59 : 3 Ind. Dec. 573 and in Vasudeva Upadyaya v. Visvaraaa Thirthasami 20 M. 407 : 7 Ind. Dec. 289 and in Chappan v. Moidin Kutti 22 M. 68 : 8 M.L.J. 231 : 8 Ind. Dec. 49 (F.B.) which was approved by their Lordships of the Calcutta High Court in Show Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323. To like effect also is the decision of their Lordships of the Bombay Court, James Currie, In re 21 B. 405 : 11 Ind. Dec. 273. Finally if my view of the decision be correct, the matter seems concluded by the judgment of their Lordships of the Privy Council in Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.).

40. With the greatest respect to the learned Judges of the Calcutta High Court who were of opinion that the powers of the Governor-General in Council were saved only in respect of the inherited powers, I do not think this result follows upon the grammatical construction of Section 9 Such a restriction would seem to be unreasonable and it could not have been intended that while the Government of India was a Legislature with plenary powers to alter or modify every jurisdiction or authority which was formerly exercised by the abolished Courts and re-granted by the Letters Patent, a limitation could have been placed upon their powers in respect of an infinitesimal part of the Courts jurisdiction and authority. In a sense every jurisdiction and authority conferred by the Letters Patent upon the High Court was a new jurisdiction, for the Court was a new Court. It could not have been the intention of Parliament that in order to examine the validity of an act of the Indian Legislature affecting the High Courts jurisdiction an inquiry should be set on foot in every case as to whether the jurisdiction and power affected by the Legislature was old or new.

41. It was said by Markby, J., in Feda Hossein, In the matter of 1 C. 431 : Ind. Dec. 270 that Sections 11 and 13 of the High Courts Act of 1861 show that the intention of Parliament was to put a limitation on the authority of the Governor-General in Council in regard to the matters dealt with in Section 9. With great respect I am unable to follow the learned Judges argument. Section 9 enacts that the Indian Legislature shall be competent to modify the jurisdiction and powers conferred by the Letters Patent upon the Court as a whole. Section 11 enacts that the previous legislation relating to the Judges of the abolished Courts will be applicable as far as possible to the Judges of the new Court. This had reference to matters not covered by Section 9 and, therefore, it was necessary to give a direction that, the legislative power of the Government of India was saved in these matters Section 13 created a new power in the High Court, namely, that of constituting by its rules Benches for the exercise of original and appellate jurisdiction. This also was not a matter covered by Section 9, which related only to the jurisdiction and powers of the whole Court, therefore in respect of this new power it was necessary to save the powers of the Government of India also.

42. In my view therefore the Indian Legislature, though it had no power to amend or modify or repeal Section 15 of the High Courts Act of 1861, had power to affect the operation of that section by depriving the Court of superintendence and appellate jurisdiction in regard to a particular inferior Court.

43. This view is supported by the legislation concerning the Presidency Small Cause Courts. By Section 6 of the Presidency Small Cause Courts Act of 1882 it was enacted that the Small Cause Court shall be deemed to be a Court subject to the superintendence of the High Court of Judicature at Fort William, within the meaning of the Letters Patent dated the 28th day of December 1865 and within the meaning of the Code of Civil Procedure, and the High Court shall have in respect of the Small Cause Court the same powers as it had under the 24th and 25th Victoria, Section 15, in respect of Courts subject to its appellate jurisdiction. As was observed by Jenkins, C.J., in Show Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323, the effect of this enactment was to confer the power of superintendence upon the High Court in respect of the Small Cause Court, as also appellate jurisdiction within the meaning of the Letters Patent. In the view I take it might perhaps be said that the section merely affirmed for the sake of greater caution a preexisting power.

44. It would thus appear that the High Court has superintendence where it has appellate jurisdiction and it has appellate jurisdiction where it has superintendence. If the Legislature can confer superintendence so as to attract the operation of Section 15 of the High Courts Act, then I see no reason why it cannot take away the same superintendence either directly by express words or indirectly by cutting down the Courts appellate jurisdiction.

45. But even if it be admitted that the legislative powers of the Government of India are limited to interference with only the inherited powers, it seems to me that the power of superintendence being inherited from the Sudder Nizamat Adalat Section 8 of the Defence of India Act was validly enacted. It is unnecessary in the view I take to pursue this view of the case further than by drawing attention to the constructions of the Sudder Nizamat Adalat 1806-1847, which repeatedly assert the right of general superintendence on the part of a superior Court over an inferior Court not only in administrative but judicial matters. Thus in Construction No. 722, dated 12th October 1832, the Court wrote to the Registrar of the Nizamat Adalat of the Western Provinces as follows, "the Magistrate is authorized under the general powers vested in him by the regulations as a superintending authority over his assistant to revise proceedings of the latter without an appeal". So again by No. 730 dated 2nd November 1832, the Court observed that the Commissioner was competent by the general powers vested in him to revise the Magistrates sentence or order and to alter or amend it if it was illegal. Although since the High Court has preferred to base its right of superintendence on Section 15 of the Act and Subordinate Courts no longer claim superintendence over the judicial acts of inferior Courts, the above constructions of the Sudder Nizamat Adalat show that the power of superintendence was well recognised even before the High Courts Act came into operation.

46. In my opinion, therefore, Section 15 of the High Courts Act merely re-states the existence of an old power the exercise of which is liable to control by the Indian Legislature.

47. In the alternative I hold that the Indian Legislature had power u/s 9 of the Act, and independently of Clause 44 of the Letters Patent of 1865, to legislate not only in respect of the inherited powers but to modify the Letters Patent in all matters, and that by controlling the provisions of the Letters Patent as to appellate jurisdiction the Legislature can affect Section 15 of the Act.

48. In pressing the opposite view the line of argument adopted by learned Counsel has been as follows: (1) Section 9 of the High Courts Act gives the Indian Legislature authority to interfere with inherited powers and not with the Letters Patent.

(2) Clause 44 of the Letters Patent, which is the only authority which gives the Indian Legislature power to modify the Letters Patent, is wholly ultra vires because

(a) the Letters Patent form part of the Act, and

(b) Her Majesty being herself a delegate cannot delegate her powers to the Government of India;

(3) if Clause 41 is not wholly ultra vires it is intra vires only as to the inherited powers;

(4) the Indian Legislature has no power to modify Section 15 of the High Courts Act.

49. I have already expressed my opinion as to the powers of the Indian Legislature in respect of Sections 9 and 15 of the Act;.

50. I propose next to examine the contention that the Letters Patent form part of the Act.

51. It is argued that the Letters Patent are rules possessing the force of statutory authority and that they are intended to supplement the Act, though they may not be actually a part of the Act. In my opinion it is quite clear that the Letters Patent are not part of the Act. Notwithstanding the dictum of Franks, J., in Beebee Muttra, In the goods of Mort. Montr. 191 : 1 Ind. Dec. 115, Couch; C.J., in Queen v. Gerald, Meares 14 B.L.R. 106 : 22.W.R. Cr. 54 was clearly of opinion that the Letters Patent were not part of the Act. Russel, C.J., declined to accept the view of Franks, J., and we must take it that so far as the Calcutta High Court is concerned, it has been definitely decided that the Letters Patent do not form part of the Act and that even if the legislative powers of the Governor-General are limited to the latter part of Section 9, the jurisdiction of the Governor-General to modify and alter the jurisdiction of the High Court vested in him by the Letters Patent remains free and unfettered, Madhub Chunder Pramanick v. Raj Coomar Doss 14 B.L.R. 76 : 22 W.R. 370., This power of the Governor-General is based upon Section 22 of the Indian Councils Act of 1861. It does not arise from Clause 44 of the Letters Patent, which merely states the law as it stood and reiterates for the sake of greater caution the power of the Governor-General to modify the terms of the Letters Patent, if he so chooses.

52. Then as regards the other objection to Clause 44, I am not impressed by the argument that Her Majesty being a delegate of the Imperial Parliament in the matter of the Letters Patent could not herself delegate to the Government of India the power of defining the jurisdiction of the High Court. Her Majesty was not in any sense a delegate. She had plenary powers to grant jurisdiction and to make rules for its exercise. Section 22 of the Government of India Act of 1861 gave the Government of India power to modify those rules, provided the Government of India did not affect or modify any Imperial Act passed in or since 1861.

53. I am of opinion therefore that Clause 44 was not in any respect ultra vires.

54. It follows, therefore, that it was open to the Government of India to modify the Letters Patent and to declare that the Tribunal under consideration was not subject to the appellate jurisdiction of the High Court.

55. If the power of superintendence is a new power which the Legislature in India cannot take away, yet that Legislature may by removing a Court from the High Courts appellate jurisdiction exclude the Courts superintendence.

56. As to the meaning of appellate jurisdiction I have already expressed my opinion. As I have already said, the learned Advocate Generals contention is that there can be no appellate jurisdiction where there is no appeal, reference or revision. Although Sections 15 and 16 of the High Courts Act do not expressly say that appellate jurisdiction may refer to a local or territorial jurisdiction, I think having regard to the terras of Section 9 we must look to the Letters Patent for the meaning of the term.

57. Clause 27 of the Letters Patent of 1865 gives appellate jurisdiction to the High Court (a) over all Criminal Courts of the Bengal Division and (6) over all Courts subject to its superintendence. The clause is wider than the corresponding clause of 1862, in which criminal appellate jurisdiction over Courts outside the Bengal Division was based on right of appeal to the Sadder Nizamat Adalat.

58. The Tribunal under consideration being a Criminal Court in the Bengal Division the High Court is a Court of Appeal from it. In the view that I have already expressed above, this power of entertaining appeals subject to the provisions of the Legislature is sufficient to confer appellate jurisdiction. Can the Legislature then remove a Court from the High Courts appellate jurisdiction I think it can.

59. It has been held in Baleshwar Bagarti v. Bhagirathi Doss 35 C. 701 : 12 C.W.N. 657 : 7 Cri.L.J. 563 that the Governor-General has authority under 23 and 29 Vict. c. 15 to transfer territory from the Central Provinces, which are not subordinate to a High Court, to the jurisdiction of the Calcutta High Court. It has also been held that in the Santal Pargannas by reasons of Act XXXVII of 1855 the Court of the Sub Divisional Officer is not subject to the appellate jurisdiction of the High Court, the Commissioner of the Division being the High Court for that area, Darbari Panjiara v. Bhathi Roy 23 Ind. Cas. 883 : 41 C. 915 : 18 C.W.N. 575 : 19 Cri.L.J. 294. Also that u/s 5 of the Santal Pargannas Regulation of 1372 while suits over Rs. 1,000 in value are subject to the superintendence of the High Court [Sardari Sha v. Hukum Chand 22. Ind.Cas. 843 : 44 C.878 : 18 C.W.N. 662], suits under that amount are excluded from the jurisdiction of the Courts established under the Bangal Civil Courts and therefore also of the High Court, Maha Prasad Singh v. Ramani Mohan Singh 25 Ind. Cas. 454 : 43 C. 116 : 27 M.L.J. 459 : 16 Bom. L.R. 834 : 18 C.W.N. 994 : 16 M.L.T. 105 : (1914) M.W.N. 535 : 20 Cri.L.J. 231 : 4 L.W. 619 : 41 L.A. 107 (P.C.). The case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) also fully recognises the Indian Legislatures power to affect the High Courts appellate jurisdiction.

60. I think, therefore, that the Legislature can affect the High Courts appellate jurisdiction by adding or removing territory or, while leaving the territorial limits unchanged, by enacting that the High Court shall have no such jurisdiction over a particular Court.

61. It is also to be noticed to at the Letters Patent of 1862 contain no clause corresponding to Clause 44 of the Letters Patent of 1865 and the inference I draw from this omission is that the power of the Governor-General to legislate in respect of the provisions of the Letters Patent was recognised in 1865 merely by way of greater caution.

62. It may be contended that it could not have been intended by Parliament that while Section 9 gave no power to amend Section 15, the Government of India could by modifying the appellate jurisdiction of the High Court indirectly bring about such an amendment. In my opinion Section 12 of the Indian Councils Act, 1861, is not a bar to such a course because such legislation would not affect Section 15 of the High Courts Act. The power of superintendence is not taken away in the abstract; it is only excluded regarding a particular Court.

63. Moreover, such indirect attacks on a Courts jurisdiction have not been unknown.

64. Take for example the case of the Insolvency Court created by Parliament. The Court, is a Tribunal independent of the High Court but the Judges of which are appointed from among the Judges of the High Court and the jurisdiction of which is affected by the rules which bind the jurisdiction of the Judges of the High Court. So it has been held that although the Insolvency Court, under the Act of Parliament by which it was constituted, has jurisdiction outside the Bengal Division, the Judges of that Court having no jurisdiction by the Letters Patent beyond the limits of that division are unable to entertain an application from a person resident beyond that jurisdiction, James Currie, In re 21 B. 405 : 11 Ind. Dec. 273.

65. To sum up, therefore, the position appears to me to be this:

(1) Whenever any Court within the territories defined in Section 27 of the Letters Patent of 1865 acted Judicially, the High Court had superintendence u/s (SIC)5 of the High Courts Act of 1891 independently of any right to interfere in appeal, revision or on reference.

(2) The power of superintendence being an inherited power, the Indian Legislature had by reason of Section 9 of the High Courts Act power to modify or amend Section 15.

(3) If the power was not an inherited power, then the Indian Legislature had authority u/s 9 of the High Courts act, read with Section 22 of the Indian Councils act of 1861, to modify the Letters Patent as regards every jurisdiction and power conferred by it and therefore also as regards the appellate jurisdiction of the High Court and thus indirectly to control the operation of Section 15 of the High Courts act. .

(4) Clause 44 of the Letters Patent was not ultra vires in any respect; but apart from Clause 44 the Indian Legislature had authority to modify the Letters Patent.

66. The result is that I find that Section 8 of the Defence of India act was validly enacted and this High Court has no power to interfere.

Ali Imam, J.

67. The petitioner Sheo Nandan Singh having been convicted u/s 395 of the Indian Penal Code by a Tribunal composed of three Commissioners appointed under the Defence of India (Criminal Law Amendment) act, moved this Court on the 18th of February last, when the following order was passed:

Let notice be served upon the Government Advocate to show cause why this Court should not interfere under its power of appellate or revisional jurisdiction or its power of superintendence u/s 107 of the Government of India act.

68. The vital question in the disposal of the petition, therefore, is whether this Court has any power of interference, be it appellate, revisions], or of superintendence. Section 8, Clause (1), of the Defence of India act is as follow:

Notwithstanding the provisions of the Code of Criminal Procedure, 1898, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of Commissioners appointed under this act and no Court shall have authority to revise any such order or sentence, or to transfer any case from such Commissioners, or to make any order u/s 491 of the Code of Criminal Procedure, 1898, or have any jurisdiction of any kind in respect if any proceedings under this Act.

69. A perusal of this section shows that the following powers have been expressly excluded from all Courts in India with reference to Commissioners appointed under the act: (1) to hear an appeal, (2) to exercise any powers of revision, (3) to transfer any case, (4) to make any directions of the, nature of habeas corpus and (5) to have any jurisdiction of any kind in respect of any proceedings under this act.

70. It is contended for the petitioner that exclusion of interference under this section, though extensive, is not exhaustive. The words "or have any jurisdiction of any kind in respect of any proceedings under this Act" have been the subject of much discussion in the hearing of this Rule. A possible construction of these words has been suggested to be in the nature of ajusdem generis and that the words under notice should be construed to limit the exclusion to powers of such character as are enumerated in the Test of the section. This might have been a possible view if the concluding passage in the section were less unambiguous than it is. The use of the word "any" in the three places in this passage governing jurisdiction and character of jurisdiction with reference to all proceedings under the act leaves no room to doubt that the framers of this act intended the section and have in fact so worded it as to be exhaustive. The meaning of the section is to be gathered from its language, which is also evident from the special character of act IV of 1915 which provides for a special machinery to secure public safety and the defence of British India by the more speedy trial of certain offences. In dealing with the section it is not relevant to the issue to dwell upon the policy that promoted this legislation. I am here concerned with interpreting the letter of the law: and in construing the act as a whole it is impossible for me to hold that Section 8 of the Defence of India Act (IV of 1915) does not exclude with reference to the Commissioners all and every kind of jurisdiction that this Court exercises over the Criminal Courts in the Province of Bihar and Orissa. I am, therefore, of opinion that the words of exclusion contained in this section embrace not only the appellate and revisional jurisdiction of this Court over the Commissioners but also power of superintendence, which is one of the ways in which this Court exercises its jurisdiction over inferior Courts. It has been contended for the petitioner that if the Governor-General of India in Legislative Council intended to take away the power of superintendence from the High Court, the word "superintendence" would have been expressly used in framing the exclusion contained in the section. Reliance has been placed for this contention on Rex v. Moreley (1760) 2 Burr. 1040 : 1 B 231 : 97 E.R. 606, R. v. Jukes (1800) 8 T.R. 542 : 101 E.R. 1536 : 5 R.R. 445 and R. v. Plowright (1686) 3 Mod. 94 : 87 E.R. 60. As I understand, these cases, it appears to me that the negation of the power to issue a writ of certiorari must be in express terms and not necessarily by the use of any particular word or phraseology. It must be admitted that the power in question is for the benefit of the subject and unless and until the negation is plain and unambiguous, it must be held to continue to exist. As I have already held the language of Section 8 of the Defence of India act is so clear and explicit in exclusion of the powers of interference that it must be held to negative every kind of jurisdiction, be it appellate, revisional or of superintendence. I must, therefore, hold that so long as the act is not ultra vires of the legislative powers of the Governor-General of India in Council, conferred upon him by Parliamentary Statutes or by some authority that has the same force as an act of Parliament, Section 8 of the Defence of India Act does deprive this Court of the powers of superintendence over the Commissioners. The next contention for the petitioner is that even if it be conceded that Section 8 of the Defence of India Act, 1915, is exhaustive, it was not competent for the Legislative Council of the Governor-General of India to pass such an act. For this contention reliance was placed on Section 22 of the Indian Councils act of 1861, Sections 9 and 15 of the High Courts act of the same year and on Clause 27 of the Letters Patent of 1865 issued to the Calcutta High Court. It may be mentioned here that at the time the Defence of India act of 1915 was passed, the Letters Patent of this Court had not come into existence and that for the present case the Calcutta Letters Patent have to be referred to.

71. It is pressed upon our consideration that the Indian Legislature is not a Sovereign authority and being subject to the control of the King in Parliament, suffers from constitutional incapacity to pass any legislation which is in contravention of the limitations imposed upon it by Parliamentary Statutes. It is not denied that the Act of the Imperial Parliament which created the Indian Legislature has placed certain restrictions on its powers, nor can it be disputed that within such statutory limitations the powers of the Governor-General of India in Council are supreme. The question then is whether the Indian Legislature in enacting Section 8 of the Defence of India Act has transgressed the limits imposed upon it. Section 22 of the Indian Councils Act of 1861, 24 and 25 Vict. c. 67, confers extensive legislative powers on the Governor-General of India in Council, provided that among other limitations mentioned therein any provisions of any Act passed in the Session of Parliament in which the Councils Act was passed or any Act passed thereafter be not contravened. The Indian High Courts act of 1861 (24 and 25 Vict. c. 104) was passed in the same session of Parliament and it is rightly contended that the powers of the Governor-General of India in Council conferred by the Indian Councils Act of 1861, however extensive, cannot contravene the statutory provisions contained in the High Courts act of 1861. Two sections of the last act have been relied upon by Mr. Manuk for the proposition that the Defence of India Act of 1915 is inconsistent with the provisions of the Indian High Courts act, These sections are, as mentioned above, 9 and 15. I will deal with the latter first. It provides that each High Court established under this act shall have superintendence over all Courts which may be subject to its appellate jurisdiction Section 107 of the Government of India Act (5 and 6 Geo. V) in substance makes a similar provision. On the construction of Section 15 of the Indian High Courts Act of 1861 or Section 107 of the Government of India act of 1915 there is no difference of opinion, and the plain meaning of the sections is that a Court which is subject to the appellate jurisdiction of a High Court is a Court over which that High Court has superintendence. In other words, the power of superintendence is co-existent with appellate jurisdiction, but what is meant by appellate jurisdiction is not expressed in either of these sections. This leads to the construction of Section 9 of the Indian High Courts act of 1861 Much controversy has raged round the meaning and purport, of this section, which runs as follows:

Each High Court to be established under this Act shall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established as Her Majesty may by such. Letters Patent as aforesaid grant and direct, subject however to such directions and limitations as to exercise of original, civil and criminal jurisdiction beyond the limits of the Presidency towns as may be prescribed thereby: and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor General of India in Council, the High Court to be established, in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this act at the time of the abolition of such last mentioned Courts.

72. It is contended for the petitioner that this section is divisible into two distinct and separate parts and that the first part deals with the creation of High Courts with jurisdiction of various kinds which may be granted and the exercise of which may be directed by Letters Patent. Under the second part, it is contended, the newly created Courts were to exercise jurisdiction that was vested in the Courts that were abolished by the act and that with reference to such jurisdiction alone the powers of the Governor General of India in Council were saved. Shortly put the argument is that the old powers could be interfered with by the Governor General in Council but not the new powers that were to be conferred by Letters Patent only. In other words, it is argued that jurisdiction conferred by the Letters Patent would be jurisdiction under the first part of the section and thus beyond the legislative control of the Governor-General of India in Council. It may be noticed here that the section itself does not say what appellate jurisdiction means, but evidently the determination of such jurisdiction has been left to the Letters Patent. It is, therefore, contended for the petitioners that the grant of appellate jurisdiction by Letters Patent would also determine the right of this Court to exercise superintendence over Courts subject to such jurisdiction. On the other hand, the learned Advocate-General who opposes the Rule contends that though the first part of the section deals with the establishment of High Courts and leaves the grant of jurisdiction and direction of its exercise to the Letters Patent, nevertheless this is done without prejudice to the legislative powers of the Governor-General of India in Council subject to the provisions of the Letters Patent under which the High Court was established. The learned Advocate-General contends that the construction put upon this section by Mr. Manuk on behalf of the petitioner is a construction which is inconsistent with the decision of the Judicial Committee in the case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec.110 (P.C.). Lord Selborne who delivered the judgment of the Committee expressed their decision in these words:

The ninth section of 24 and 25 Vict. c. 104 expressly says that each of the High Courts shall within its own Presidency have such civil, criminal and other jurisdiction as Her Majesty may by her Letters Patent grant and direct and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council the High Court in each Presidency shall have all the jurisdiction of the former Supreme and Sudder Courts abolished by Section 8. The authority of the Indian Legislature over jurisdiction of the High Courts (so far as at all events such exercise by that authority might be consistent with Her Majestys Letters Patent) is here distinctly recognised." In another place in the same judgment there is the following passage: "Now it appears to their Lordships from the express terms of the Act 24 and 25 Vict. c. 104 that (unless there should be anything to the contrary in the Letters Patent under which the High Court is established) the exercise of jurisdiction in any part of Her Majestys Indian territories by the High Courts was meant to be subject to, and not to be exclusive of, the general legislative power of the Governor-General in Council as to all Courts of Justice whatever.

73. Mr. Manuk contends that the Judicial Committee, when deciding the case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.), were construing Section 9 of the Indian High Courts Act of 1881 for the purpose of finding out whether the Governor-General in Council could remove any territories from the jurisdiction of a High Court and that the Committee was not giving its decision on the question whether the Governor-General in Council could, within the territorial jurisdiction of a High Court, deny its power of superintendence over a Criminal Court erected within such jurisdiction. I do not think that their Lordships of the Judicial Committee were construing Section 9 of the Act on the facts of that case alone. It appears to me that the construction placed upon this section by their Lordships covers the important constitutional issue raised by Mr. Manuk, and that is whether any jurisdiction exercised by a High Court is subject to the legislative control of the Governor-General in Council consistently with the provisions of the Letters Patent. I am, therefore, constrained to hold that the legislative powers of the Governor-General in Council are saved by Section 9 of this Statute, with the reservation that they should not be in contravention of the Letters Patent. In this view of the law the Defence of India Act, I hold, is not ultra vires of the legislative powers of the Governor-General in Council, unless it is shown that the provisions of the Defence of India act are in contravention of the Letters Patent. With a view to find out whether such a contravention has occurred, it is necessary to examine the provisions contained in the Letters Patent of 1865 granted to the Calcutta High Court which was in force in Bihar and Orissa at the time the Defence of India act of 1915 was passed. Mr. Manuks contention is that Clause 27 of the Letters Patent defines the appellate jurisdiction of the High Court and that if his construction of that clause is correct, then the right of superintendence over a Criminal Court situated within the territorial jurisdiction of this Court would be established. It is not denied that the Commissioners sitting at Gaya convicted the petitioner in their judicial capacity and formed a Criminal Court within the territorial jurisdiction of this Court. Mr. Manuks argument is that under Clause 27 of the Letters Patent the Commissioners were subject to the appellate jurisdiction of this Court and that, therefore, u/s 15 of the High Courts Act of 1861 the powers of superintendence would exist and further that as these powers are derived from Parliamentary Statutes the Defence of India Act could not extinguish them. Clause 27 of the Calcutta Letters Patent of 1865 runs as follows:

And We do farther ordain that the said High Court of Judicature at Fort William in Bengal shall be a Court of Appeal from the Criminal Courts of the Bengal Division of the Presidency of Fort William and from all other Courts subject to its superintendence and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any law now in force.

74. Mr. Manuk argues that the words Court of Appeal in this clause must be read in a more comprehensive sense than they apparently imply and should be held to mean a Court exercising powers of appeal, revision or of superintendence. He contends that his construction of the clause is borne out by instances where this Court has exercised its powers of superintendence over Courts from which no appeal lay. For this contention he relies on a Full Bench decision of this Court given in the case of Parmessar Singh v. Kailashpati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 1 P.L.W. 93 : (1917) Pat. 1 : 17 Cri. L.J. 369. The question in this case was whether the High Court at Patna had jurisdiction u/s 107 of the Government of India act of 1915 to exercise its power of superintendence in a case decided by a Magistrate u/s 145 of the Code of Criminal Procedure. It is admitted that under the provisions of the Code there is neither an appeal nor a revision in cases decided u/s 145 of that Code, yet the decision in Parmessar Singhs case 35 Ind. Cas. 801 : 1 P.L.J. 336 : 1 P.L.W. 93 : (1917) Pat. 1 : 17 Cri. L.J. 369, following similar decisions of various High Courts, was that the power of this Court to superintend existed though there was neither an appeal nor a revision from a decision u/s 145. The learned Advocate-General, on the other hand, in the earlier stages of his address on the construction of Clause 27 of the Letters Patent invited us to hold that superintendence existed over Courts the decisions of which were subject to appeal to the High Court, and not to revision. This, however, left the point at issue in the apparent difficulty of reconciling his argument with the decision in the Full Bench case, for that was a case decided by a Magistrate from whose Court no appeal lay to the High Court. The learned Advocate-General, realising this difficulty, modified his argument by conceding that the words Court of Appeal would mean a Court that would exercise appellate or revisional jurisdiction, but not the power of superintendence. In the modified argument the decision given in Parmessari Singhs case 35 Ind. Cas. 801 : 1 P.L.J. 336 : 1 P.L.W. 93 : (1917) Pat. 1 : 17 Cri. L.J. 369 was supported by the contention that although there was no appeal or revision from a decision given u/s 145 of the Code of Criminal Procedure, yet the decision was given by a Court that in the exercise of its functions generally was subject to the revisional jurisdiction of the High Court. I agree with the view that the words Court of Appeal in Clause 27 of the Letters Patent should be construed in a more comprehensive sense including the powers of revision. I am, therefore, of opinion that the words Court of Appeal in Clause 27 of the Letters Patent mean a Court that does not only entertain appeals but also revision. In this view of Clause 27 of the Letters Patent superintendence over the Commissioners appointed under the Defence of India Act would be possible only if the Commissioners formed a Court from whose decision an appeal or revision lay to this Court. Mr. Manuk contends that Clause 27 itself ordains that from Criminal Courts in the Province the High Court shall be a Court of Appeal, which means a Court that would entertain appeals or revisions from the decisions of such Criminal Courts and that, therefore, this Court is a. "Court of Appeal" from any order or sentence of the Commissioners appointed under the Defence of India act. In other words, Mr. Manuk argues that this Court is a Court to whose appellate jurisdiction the Commissioners art subject and, therefore, the powers of superintendence over their proceedings u/s 15 of the High Courts act are conclusively established. There would seem to be considerable force in this argument) for if the Commissioners formed a Criminal Court within the territorial jurisdiction of the High Court, they would under Clause 27 of the Letters Patent unquestionably become subject to its appellate jurisdiction and the power of superintendence would follow. If the matter stood there, the power of the Governor-General in Council to affect the superintendence of the High Court over these Commissioners would be ultra vires u/s 9 of the High Courts A at as these powers are subject to the provisions of the Letters Patent. But Section 44 of the Letters Patent is a complete answer to such an argument, which provides as follows:

And We do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council exercised at meetings for the purpose of making Laws and Regulations and also of the Governor-General in cases of emergencies under the provisions of an act of the 24th and 25th years of Our Reign Chapter 67 and may be in all respects amended and altered thereby.

75. This clause confers upon the Governor-General in Council full and complete power to make any amendment or alteration in respect of all the provisions of the Letters Patent; if so, there is nothing to prevent the Indian Legislature from removing any Criminal Court mentioned in Clause 27 of the Letters Patent from the appellate or revisional jurisdiction of the High Court. Section 8 of the Defence of India act expressly removes the Commissioners appointed under that Act; from the appellate and revisional jurisdiction of this Court. It would, therefore, follow that with reference to them the High Court cannot exercise any sort of appellate jurisdiction. In consequence the jurisdiction of the High Court to exercise superintendence would cease. It has been contended by Mr. Manuk that the Letters Patent of 1865 issued to the Calcutta High Court under the High Courts act is an instrument produced in the exercise of powers delegated to the Crown by Parliament and that when the Crown had only a delegated authority, it could not make a further delegation under Clause 44 of the Letters Patent. I do not think the maxim delegatus non potest delegere has any application to Clause 44. Section 9 of the High Courts act of 1861 confers the widest possible powers on the Crown in the matter of granting jurisdiction to and direction of its exercise by the High Courts. The powers of the Crown in this respect are in fact as wide as of Parliament itself. It is, therefore, intra vires u/s 9 of the High Courts act for the Crown to direct that all the provisions of the Letters Patent should be subject to the legislative powers of the Governor-General in Council. This view is supported by the decision given by the Judicial Committee in the case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.), to which reference has been made. Their Lordships relied upon this particular clause as a clause which clothes the Governor-General in Council with authority to vary and modify the provisions of the Letters Patent, I therefore, hold that under Clause 44 of the Letters Patent of 1865 issued to the Calcutta High Court the powers of the Governor-General to alter and amend all the provisions of the Letters Patent are saved. In the course of the argument an analogy was drawn between the powers of the Kings Bench Division to issue a writ of certiorari and the powers of superintendence vested in the High Court. Reliance was placed on a large number of decisions, of the Indian Courts, and it was contended that there was inherent jurisdiction in this Court to exercise its power of superintendence over Criminal Courts situated within its territorial jurisdiction. I am willing to concede that in the absence of any express legislative negation of the powers of superintendence vested in this Court the argument might receive consideration, but as I have held above, there is in Section 8 of the Defence of India act of 1915 an express provision taking away all jurisdiction from this Court over the Commissioners appointed under that Act. In this view of the case I consider it unnecessary to examine a number of enactments passed by the Governor-General in Council, by which within the territorial jurisdiction of a High Court Judicial Tribunals were set up wholly independent of the High Court and over which it could exercise no jurisdiction of any kind. These instances are quoted by the learned Advocate-General to support the proposition that the Governor-General in Council did not enter upon a new departure in enacting Section 8 of the Defence of India Act. I have no hesitation in holding that subject to the provisions of the Letters Patent, the powers of the Governor General in Council are saved u/s 9 of the High Courts, Act of 1861. I have also no hesitation in holding that with reference to the provisions of the Letters Patent themselves these powers are further saved by Clause 44 of the Letters Patent of 1865. The authority of the Judicial Committee contained in the decision given in Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) is conclusive on both these points.

76. In the circumstances I am of opinion that this Court cannot interfere with the order of conviction and sentence passed on the petitioner by the Commissioners. The petition must, therefore, be rejected.

Dawson Miller, C.J.

77. I have mentioned the reason why I dealt with this question, because I thought it might be said hereafter that this was a matter which went beyond the merits, that is to say, a matter which went to our jurisdiction, to our right to interfere. But so far as the rules under which the Tribunal acted are concerned, it seems to me that they were acting within the powers granted by the Defence of India Act, and, therefore, there is no ground for asking us to exercise our jurisdiction by reason of the fact that the Court was not a Tribunal acting under the powers granted by that Act. That is the only reason why I dealt with that point. At the same time, as Mr. Manuk has asked me, I want to make it quite clear that the merits were not dealt with before us at the trial because first of all we had to be satisfied that we had jurisdiction to act.