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21. In Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, Counsel for the prisoner asked the presiding judge to rule that there was no case to go to the jury but the learned judge refused to do so holding that there was certainly a case to go to the jury. At the close of counsel's address his junior counsel by his direction asked the learned judge to reserve under Clause 26 of the Letters Patent for the opinion of the High Court a certain point of law, but the learned judge declined to do so saying that he did not think there was then any question of law to be reserved. The Advocate-General who gave the certificate appeared in support of the conviction. He stated that he gave the certificate on the representation of the counsel but he did not admit as a fact that a direction alleged to have been given had in fact been given. Thereupon the Court suggested that the certificate might be amended which was accordingly done. After amendment the certificate stated that the judge did not instruct the jury on a certain point of law, and did tell the jury that there was no point of law to be reserved for the opinion of the High Court. Westropp, C.J. observed "The allegation in that certificate that the judge refused to reserve the point of law states no error in law....The first part of this allegation, viz., that the Judge 'did not instruct' etc., is an averment of an omission and no more on the part of the learned judge. It simply puts forth a non-direction by him not a misdirection". After referring to some of the authorities the learned Chief Justice quoted Baron Parke in M'Alpine v. Mangaall (1846) 3 C.B. Rep. 496 : 136 E.R. 198 who said "That which you complain of here is a non-direction which cannot clearly be made the subject of a bill of exceptions It is misdirection and not non-direction that is the proper subject of a bill of exceptions." Again he quotes Crampton, J., in O'Kaffe v. Cardinal (1873) 7 Irish C.L. Rep. 319 at 434 who said "The judge is not by law compelled to charge at all though in many cases it may be right and expedient to do so. The exception should be for mis-direction not for non-directiorr." Then the learned Chief Justice referred to two cases Elahee Buksh, In re (1866) 5 W.R. 80 (Cr.), and Queen v. Narain Acharj (1867) 8 W.R. 80 (Cr.) which were relied upon by Counsel for the defence for showing that the omission to direct will be treated as an actual mis-direction and observed "But for that purpose these cases are not in point upon questions reserved by a judge or certified by the Advocate-General at the Original Jurisdiction Side of the High Court where the procedure in criminal cases is not regulated by the Criminal Procedure Code but in the main by the English Practice as it existed in the Supreme Court have where altered by special legislation or by the Charter of the High Court....On an appeal from the mofussil the High Court has a much wider sphere of action than upon Clauses 25 and 26 of the Letters Patent in cases on the original jurisdiction side. But even supposing that on the present occasion we were disposed lo allow to ourselves a greater latitude than seems to be permitted, in cases reserved under the Stat. 11 and 12 Viet. Ch. 78 in England and to enquire whether the alleged non-direction in this case amounted to mis-direction and had misled the jury or was likely to misled them.... we have come to the conclusion that the Court ought not to interfere with the convictions had in this case."

41. Reference was made to Sections 1 and 2 of the Crown Cases Act 1848 (11 and 12 Vic, Ch. 78) and also to the nature of the 'fiats' for writs of error used to be issued by the Attorney-General in England in olden days before such fiats were abolished by the Criminal Appeal Act, 1907 (7 Ed. 7 Clause 23) to explain the scope of Clause 25 and Clause 26 of the Letters Patent. It is generally slated that Sections 1 and 2 of the Crown Cases Act formed the model for Clauses 25 and 26 of the Letters Patent. After stating in Section 1 that the Judge or Commissioner or Court of Quarter Sessions before whom a case is tried may reserve any " question of law ", Section 2 of the Act states that the authority concerned " shall thereupon state in a case signed in the manner now usual, the question or questions of law which shall have been so reserved with the special circumstances upon which the same shall have arisen and such case shall be transmitted to the said Justices and Barons and the said Justices and Barons shall thereupon pass orders such as those mentioned in the section. As pointed out in Reg v. Pestanji Dinsha (1873) 10 Bom. H.C.R. 75, to a considerable extent the provisions of the Act resemble the provision in 25th clause of the Letters Patent, but as to the 26th clause empowering the Advocate-General to certify a question of law there is not any corresponding section in the statute 11 and 12 Vic. Ch. 78. As observed by Sir Arnold White, Chief Justice, in Subrahmania Aiyar v. King-Emperor (1901) L.R. 28 I.A. 257 : I.L.R. 25 Mad. 61 : 11 M.L.J. 233 (P.C.), a power to review the case with reference to the evidence given to the High Court under Clause 26 of the Letters Patent is altogether absent in Section 2 of the Act and in it there is also no reference to any certificate by the Attorney-General, such as the Advocate-General's certificate contemplated by Clause 26 of the Letters Patent. If the 'fiats' used to be issued by the Attorney-General were restricted in their scope as being confined to errors apparent on face of the record, it has to be admitted that the power of the Advocate-General to grant certificates is wider as he can examine the evidence and find out whether there is any error in the decision on a point of law decided by the trial Judge. In my opinion, neither the Crown Cases Act nor the nature of the fiats issued by the Attorney-General helps us in determining the significance of the expression "error in decision on a point of law" in Clause 26.