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5. In the first group of Indian cases, the earliest decision which has been brought to our notice is that of Pooneakhoty Moodeliar v. Reg. (1835) 3 Knapp 348 : 12 E.R. 684. The appellant had been convicted at a Sessions held on the Crown Side of the Court of the Recorder of Bombay on a charge of uttering a forged receipt for money, with intent to defraud the East India Company. The prisoner obtained leave to appeal from the Court of the Recorder. The Judicial Committee considered the appeal on the merits, affirmed the conviction in respect of one offence, but reversed the judgment as erroneous in respect of another offence. Important questions of law including a question of jurisdiction were involved in the appeal. The next case in point of time is that of Aga Kurboolie Mahomed v. Queen 3 M.I.A. 164 : 4 Moo. P.C. 239 : 1 Sar P.C.J. 261 : 18 E.R. 163 : 13 E.R. 293. The appellants were tried on charges of assault and battery, in the Supreme Court at Calcutta before Sir John Peter Grant and a Jury, and were convicted. A Rule was granted to set aside the verdict but was discharged, Sir Edward Ryan, C.J., dissenting. The Supreme Court at the same time gave leave to appeal to Her Majesty in Council. The Judicial Committee heard the appeal on the merits and directed that the Rule for new trial be made absolute; and they also intimated their hope that the indictment would not be further prosecuted. It may be noted that when the Judicial Committee (Lord Brougham, Lord Campbell, Knight Bruce, V.C. and Dr. Lushington) heard the appeal, Sir Edward Ryan sat as Assessor. These two cases, as we shall presently see, stand in a class by themselves, and were not followed in the case of Queen v. Eduljee Byramjee 3 M.I.A. 468 : 5 Moo. P.C. 276 : 1 Sar.P.C.J. 305 : 18 E.R. 577 : 13 E.R. 496. There the petitioners applied for leave to appeal from a conviction for felony at a trial held in the Supreme Court of Bombay before Sir Henry Roper, C.J., and Sir Erskine Perry, J., and a Jury who returned a verdict of guilty. Dr. Lushington who delivered the judgment of the Judicial Committee ruled that there was no power reserved to the Crown by the Charter of the Supreme Court, 1823, which conferred on that Court and that Court alone full and absolute power and authority to allow or deny appeals in criminal causes. With this may be compared the decision of the Judicial Committee in In the Matter of Abraham Ames (1844) 3 Moo.P.C. 409 : 13 E.R. 166, where leave granted on an ex parte application to appeal from a criminal proceeding in Jersey, was recalled. The same view was reiterated in Queen v. Alloo Paroo 3 M.I.A. 488 : 5 Moo.P.C. 296 : 1 Sar.P.C.J. 310 : Perry's O.C. 551 : 18 E.R. 586 : 13 E.R. 504. We next come to the case of Nga Hoong v. Queen 7 M.I.A. 72 : 4 W.R. 109 : Boul. 189 : 1 Suth. P.C.J. 283 : 1 Sar.P.C.J. 598 : 19 E.R. 237 (P.C), where an appeal was allowed from a judgment on a conviction by the Supreme Court at Calcutta in a case of murder. The prisoner was tried before Sir James Colvile, C.J., and a Jury, who returned a verdict of guilty, A question of jurisdiction, which had been reserved, was argued before the Full Court. The Chief Justice and Buller, J., held that the Court had jurisdiction, while Jackson, J., held that the Court had no jurisdiction. The question turned upon the construction of Section 56 of Slat. 9, Geo. IV, c. 74. The Judicial Committee held that the Court had no jurisdiction and annulled the conviction. In In the Matter of Mac Crea 20 I.A. 90 : (1893) A.C. 346 : 17 Cox C.C. 702 : 15 A. 310 : 6 Sar.P.C.J. 344 : 17 Ind. Jur. 430 : 7 Ind. Dec. (N.S.) 915 (P.C.), which was approved in In the matter of Rajendro Nath Mukerji 26 I.A. 242 : 22 A. 49 : 3 C.W.N. 736 : 1 Bom L.R. 708 : 7 Sar.P.C.J. 556 : 9 Ind. Dec. (N.S.) 1064 (P.C.) the prisoner was convicted of offences under sections 420 and 511, Indian Penal Code, and was sentenced to imprisonment. The High Court of Allahabad refused to certify under Section 32 of the Letters Patent of 1866 that the case was a fit one for appeal to His Majesty in Council. The Judicial Committee declined to grant special leave. Lord Halsbury observed that there were no doubt very special and exceptional circumstances in which leave to appeal was granted in criminal cases, but it would be contrary to the practice of the Board and very mischievous, if any countenance were given to the view that an appeal would be allowed in every case in which it could be established that there had been a misdirection by the Judge who tried the case. In Bal Gangadhar Tilak v. Queen-Empress 25 I.A. 1 : 22 B. 528 : 7 Sar. P.C.J. 270 : 11 Ind. Dec. (N.S.) 933 (P.C.), the Judicial Committee refused to grant leave to appeal. The question raised related to the true construction of Section 124A, Indian Penal Code which, it was urged, had been erroneously interpreted by Strachey, J., in his charge to the Jury. Lord Halsbury observed that taking a view of the whole of the summing up, there was nothing in that summing up which called upon their Lordships to indicate any dissent from it nor any necessity to correct what was therein contained looking at the summing up as a whole and looking at each part of what was said by the light of what else was said. In Subrahmanya Iyer v. King-Emperor 28 I.A. 257 : 25 M. 61 : 11 M.L.J. 233 : 3 Bom L.R. 540 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar.P.C.J. 160 (P.C), the appellant was tried in contravention of Section 234, Criminal Procedure Code, on an indictment in which he was charged with no less than 41 acts extending over a period of two years. The Judicial Committee annulled the conviction and sentence on the ground the trial was prohibited in the mode in which it was conducted. In In Re: Bal Gangadhar Tilak 2 Ind. Cas. 152 : 33 B. 221 : 10 Bom.L.R. 973 4 M.L.T. 45 : 9 Cr.L.J. 226, the accused was tried before Davar, J., and a Jury on charges under Section 124 A, Indian Penal Code, and was convicted. Sir Basil Scott, C.J., and Batchelor, J., declined to grant leave and ruled that before a certificate could be granted the Court must be satisfied that there was reasonable ground for thinking that grave and substantial injustice might have been done by reason of some departure from the principles of natural justice. Reference was made to the decisions in Dinizulu v. Zululand Attorney-General (1889) 61 L.T. 740 : 16 Cox C.C. 735, Ex parte Carew (1897) A.C. 719 : 18 Cox C.C. 625 and In Re: Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241. To the same effect are the decisions in Clifford v. Emperor 22 Ind. Cas. 496 : 40 I.A. 241 : 41 C. 568 : 19 C.L.J. 107 : (1914) M.W.N. 11 : 16 Bom.L.R. 1 : 12 A.L.J. 75 : 15 M.L.T. 84 : 18 C.W.N. 374 : 15 Cr.L.J. 144 : 7 Bur.L.T. 37 : 83 L.J.P.C. 152 (P.C.) and Channing Arnold v. Emperor 23 Ind. Cas. 661 : 41 I.A. 149 : (1914) A.C. 644 : 83 L.J.P. 299 : 111 L.T. 324 : 30 T.L.R. 462 : 41 C. 1023 : 18 C.W.N. 785 : 26 M.L.J. 621 : 15 Cr.L.J. 309 : 1 L.W. 461 : 7 Bur.L.T. 167 : (1914) M.W.N. 506 : 16 M.L.T. 79 : 12 A.L.J. 1042 : 20 C.L.J. 161 : 16 Bom.L.R. 544 : 8 L.B.R. 16 (P.C.), where leave to appeal was refused. It is worthy of note that in the second case, there was a clear indication that even if the Judicial Committee could sit as a Court of criminal appeal, it was hardly doubtful that the appeal would fail. In the first case, Viscount Haldane pointed out that it would be contrary to their constitutional duty, if the Board were to assume the position and function of a Court of Criminal Appeal, a Court which could go into questions of evidence and procedure and could deal with the case on the same footing as an ordinary Court of Appeal. In the same way, in Annie Besant v. Advocate-General, Madras 52 Ind. Cas. 209 : 46 I.A. 176 : 37 M.L.J. 139 : 17 A.L.J. 925 : 23 C.W.N. 986 : 21 Bom.L.R. 867 : (1919) M.W.N. 555 : 10 L.W. 451 : 20 Cr.L.J. 593 : 26 M.L.T. 408 : 1 U.P.L.R. (P.C.) 74 : (1919) 35 T.L.R. 500 : 43 M. 146 : 35 T.L.R 500 (P.C.), where important questions arose as to the scope and effect of the provisions of the Indian Press Act, 1910, the High Court of' Madras refused to give a certificate. The Judicial Committee granted special leave to appeal; the decision of the High Court was however, ultimately affirmed on the merits and the appeal was dismissed.

7. In the series of cases which came before the Judicial Committee from Colonial Courts, the earliest is the decision in Falkland Islands Company v. Reg. (1863) 1 Moo. P.C. (N.S.) 299 : 9 Cox C.C. 351 : 10 Jur. (N.S.) 807 : 9 L.T. 103 : 12 W.R. 220 : 15 E.R. 713 : 138 R.R. 535 where Lord Kingsdown quoted with approval the observations of Dr. Lushington in Queen v. Joykissen Mookerjee 9 M.I.A. 168 at p. 172 : 1 W.R.P.C. 13 : 1 Ind. Jur. (o.s.) 61 : 1 Sar.P.C.J. 860 : 1 Moo P.C. (N.S.) 272 : 1 Suth.P.C.J. 481 : 19 E.R. 706. This set the tradition, as it were, and it came to be recognised that though it was the settled prerogative of the Crown to receive appeals in all Colonial cases : [In re Natal Bishop] (1864) 3 Moo.P.C. (N.S.) 115 at p. 156 : 11 Jur. (N.S.) 353 : 12 L.T. 188 : 13 W.R. 5 49 : 16 E.R. 43 : 146 R.R. 18 the inconvenience of entertaining such appeals in cases of a strictly criminal character was so great, the obstruction that it would offer to the administration of justice in the Colonies was so obvious, that it was 4 only on rare occasions, in exceptional circumstances, that applications of that description should be encouraged or entertained by the Judicial Committee. This doctrine will be found to permeate the stream of later decisions. Amongst these may be mentioned Lavein v. Queen (1867) 1 P.C. 536 : 36 L.J.P.C. 62 : 16 W.R. 159 : 4 Moo. (N.S.) 483 : 16 E.R. 400, McDermott (1866) 1 P.C. 260 : 17 W.R. 352 : 4 Moo (N.S.) 110 : 16 E.R. 258, Reg: v. Bertrand (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618, Reg. v. Murphy (1868) 2 P.C. 35 : 5 Moo. P.C. (N.S.) 47 : 16 E.R. 432, R. v. Murphy (1869) 2 P.C. 535 : 6 Moo. P.C. (N.S.) 177 38 L.J.P.C. 53 : 21 L.T. 598 17 W.R. 1047 : 11 Cox. C.C. 372 : 16 E.R. 693, Reg. v. Coote (1873) 4 P.C. 599 : 9 Moo. P.C. (N.S.) 463 : 42 L.J.P.C. 45 : 29 L.T. 111 : 21 W.R. 553 : 12 Cox. C.C. 557 : 17 E.R. 587, Esnouf v. Attorney-General for Jersey (1883) 8 A.C. 304 : 52 L.J.P.C. 26 : 48 L.T. 321, Riel v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48, In Re: Billet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241, Dinizulu v. Zululand Attorney-General (1889) 61 L.T. 740 : 16 Cox C.C. 735, Macleod v. Attorney-General for New South Wales (1891) A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox C.C. 341, Ex parte Deeming (1892) A.C. 422, Makin v. Attorney-General for New South Wales (1894) A.C. 57 : 63 L.T.P.C. 41 : 6 R. 373 : 69 L.T. 778 : 17 Cox C.C. 704 : 58 J.P. 148, Kops v. Queen (1894) A.C. 650 : 6 R. 522 : 70 L.T. 890 : 58 J.P. 668, Sprigg v. Sigean (1897) A.C. 238 : 66 L.J.P.C. 44 : 76 L.T. 127, Ex parte Carew (1897) A.C. 719 : 18 Cox C.C. 625, Brown v. Attorney-General for Newzealand (1898) A.C. 234 : 67 L.J.P.C. 7 : 77 L.T. 414 : 18 Cox. C.C. 658, Reg. v. Marais (1902) A.C. 51 : 71 L.J.P.C. 32 : 85 L.T. 363, Ex parte Aldread (1902) A.C. 81 : 20 Cox C.C. 149 : 71 L.J.P.C. 27 : 86 L.T. 163, Nelson v. Reg. (1902) A.C. 250 : 71 L.J.P.C. 55 : 86 L.T. 164, Rex v. Louw (1904) A.C. 412 : 73 L.J.P.C. 65 : 91 L.T. 210 : 20 T.L.R. 572, Badger v. Attorney-General Newzealand (1907) 97 L.T. 621 : 21 Cox C.C. 539, Tshingumuzi v. Attorney-General for Natal (1903) A.C. 248 : 77 L.J.P.C. 110 : 98 L.T. 601, Armstrong v. Reg. (1913) 30 T.L.R. 213, Lanier v. Reg. (1914) A.C. 221 : 24 Cox C.C. 53 : 83 L.J.P.C. 116 : 110 L.T. 326 : 30 T.L.R. 53 and Ibrahim v. Regam (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174. It is not necessary to set out here a detailed analysis of all the observations of their Lordships in the cases mentioned; their essence will be found concisely stated by Lord Watson in In re, Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241 which has been repeatedly followed:

The rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.

8. This principle was successfully invoked on behalf of the Crown in the cases of Reg. v. Bertrand (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618, R. v. Murphy (1869) 2 P.C. 535 : 6 Moo. P.C. (N.S.) 177 38 L.J.P.C. 53 : 21 L.T. 598 17 W.R. 1047 : 11 Cox. C.C. 372 : 16 E.R. 693 and Reg. v. Coote (1873) 4 P.C. 599 : 9 Moo. P.C. (N.S.) 463 : 42 L.J.P.C. 45 : 29 L.T. 111 : 21 W.R. 553 : 12 Cox.C.C. 557 : 17 E.R. 587 where a Colonial Court had, in each instance, set aside a conviction and granted a new trial in excess of its jurisdiction. There was no occasion to apply the doctrine in Levein v. Queen (1867) 1 P.C. 536 : 36 L.J.P.C. 62 : 16 W.R. 159 : 4 Moo. (N.S.) 483 : 16 E.R. 400 as the prisoner obtained a free pardon and was discharged from prison before his appeal could be heard; the Judicial Committee held that as the prisoner had obtained the substantial benefit of a free pardon they would not enter upon the merits of the case or pronounce an opinion upon the legal objections to the conviction. But the principle was successfully invoked- on behalf of the accused in the cases of Falkland Islands Company v. Reg. (1863) 1 Moo.P.C. (N.S.) 299 : 9 Cox C.C. 351 : 10 Jur. (N.S.) 807 : 9 L.T. 103 : 12 W.R. 220 : 15 E.R. 713 : 138 R.R. 535, McDermott (1866) 1 P.C. 260 : 17 W.R. 352 : 4 Moo (N.S.) 110 : 16 E.R. 258, In Re: Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241 Macleod v. Attorney-General for New South Wales (1891) A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox C.C. 341 and Nelson v. Reg. (1902) A.C. 250 : 71 L.J.P.C. 55 : 86 L.T. 164. A noteworthy instance of successful appeal will be found in Lanier v. Reg. (1914) A.C. 221 : 24 Cox C.C. 53 : 83 L.J.P.C. 116 : 110 L.T. 326 : 30 T.L.R. 53 where the conviction was for embezzlement, and this may be taken along with Vaithinatha Filial v. King-Emperor. 21 Ind. Cas. 369 : 40 I.A. 193 : 36 M. 501 : 18 C.L.J. 365 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom.L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 14 Cr.L.J. 577 (P.C.) which was, as we have seen, a successful appeal against conviction for murder and sentence of death. In this connection, the following passage from the judgment of Lord Sumner in Ibrahim v. Re-gam (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174 may be usefully re-called:

Having regard to the particular position in which their Lordships stand to criminal proceedings, they do not propose to intimate what they think the rule of English Law ought to be, much as it is to be desired that the point should be settled by authority so far as a general rule can be laid down where circumstances must so greatly vary. That must be left to a Court which exercises, as their Lordships do not, the revising functions of a general Court of Criminal Appeal: Clifford v. King-Emperor 22 Ind. Cas. 496 : 40 I.A. 241 : 41 C. 568 : 19 C.L.J. 107 : (1914) M.W.N. 11 : 16 Bom.L.R. 1 : 12 A.L.J. 75 : 15 M.L.T. 84 : 18 C.W.N. 374 : 15 Cr.L.J. 144 : 7 Bur.L.T. 37 : 83 L.J.P.C. 152 (P.C.). Their Lordships' practice has been repeatedly defined. Leave to appeal is not granted except where some clear departure from the requirements of justice' exists: Riel v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48; nor unless by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done: In Re: Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241. It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing-Riel v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48 and Ex parte Deeming (1892) A.C. 422. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even irregularity as such, will not suffice: In the matter of MacCrea 20 I.A. 90 : (1893) A.C. 346 : 17 Cox C.C. 702 : 15 A. 310 : 6 Sar.P.C.J. 344 : 17 Ind. Jur. 430 : 7 Ind. Dec. (N.S.) 915 (P.C.). There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Reg. v. Bertram (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618: