56 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Bengal to issue commissions of the peace in His Majesty’s name, and to appoint Justices of Peace for the Province and Presidency, island, town and factory of Bombay, and the places belonging or subordinate thereto : and a clause is added, (sec.
- declaring “that all convictions, judgements, orders, and other proceedings, which shall be had, made or pronounced by or before any Justice or Justices of Peace within any of the British settlements or territories in India, out of the court of Oyer and Terminer within and for the same, shall and may be removed by writ of certiorari into the court of Oyer and Terminer and Gaol Delivery, of and from the same Presidency, al the instance of any of the parties thereby affected or aggrieved.”
A similar provision is also made with respect to convictions before the Zillah Magistrates, by the 53rd of the late King, in cap. 155, Sec. 105 by which a power of removing them by certiorari is given in the court of Oyer and Terminer of the Presidency. Now it is a maxim, that where the power of issuing the writ of certiorari is not expressly taken away, it exists by common law in the Court of King’s Bench; and to oust their jurisdiction it must be taken away expressly. But here it is not the question of taking it away; but the question is of giving it expressly, and whether it would have existed at all unless so given. The Judges of the Court of Oyer and Terminer at Bombay are the Judges of the Supreme Court: but they do not take this superintending authority over the Zilla Courts qua Supreme Court; but a special authority is given to them for that purpose to issue a certiorari out of the Court of Oyer and Terminer. This tends strongly to show that the Supreme Court, as such, does not possess the power which is contended for.
Lord Tenterden.– “The conviction of the Justices of Peace may be removed by certiorari into the Supreme Court of the Presidency.”
Into the Court of Oyer and Terminer, that court being constituted of the same persons. But the authority is not given to them as Judge of the Supreme Court, but as Justices of Oyer and Terminer.
The charter of Bombay does not suppose it confers an universal criminal jurisdiction, for it constitutes a court of Oyer and