JUDGMENT : BURKITT, J. In this case one George Powell and his two sons, Frank and. Arther Powell, were convicted by the District Magistrate of Saharanpur of having committed an offence punishable under section 147 of the Penal Code and were sentenced to pay a fine, and, in default, of payment, to a term of imprisonment. At the trial before the Magistrate the accused put forward a claim to be tried as European British subjects, The Magistrate took evidence on that point and, eventually rejected the claim. The trial then, proceeded, in the ordinary way. On their conviction the accused appealed to the Sessions Judge, In their appeal they re-asserted their right to be tried as European British subjects; and they also impugned the decision of the Magistrate on the merits. The Sessions Judge held that the elder appellant, George Powell, was an European British subject, but that his sons had not that privilege. He therefore held that the trial of George Powell was illegal, and setting aside the conviction in, his case, he directed the Magistrate to retry. George Powell as an European British subject. The learned Judge rejected the ‘applicant's petition’ to have the case argued against himself on the merits as he did not claim to be tried by a jury,” He passed no order on George Powell's appeal on the merits. 2. George Powell has now applied to this Court in revision, asking that the order of the Sessions Judge, directing a new trial, should be set aside, and that the Judge should be directed to take up and dispose of his appeal. His learned counsel contends that the object, for which his client desired to be tried, by the Magistrate, as ah European British subject, was that he might have the benefit of the restricted powers of punishment which such a person enjoys when tried by a Magistrate, and points out that his client did not claim, either before the Magistrate, or before the Judge, to be tried by a jury and also that the sentence, passed by the Magistrate, was one which the Magistrate could have legally passed if he had found that George Powell was an European British subject. In this last matter this case differs essentially from the case of Empress v. Berul,[1882] I.L.R., 4 All., 141, on the strength of which the Sessions Judge acted. In this last matter this case differs essentially from the case of Empress v. Berul,[1882] I.L.R., 4 All., 141, on the strength of which the Sessions Judge acted. In the latter case the Magistrate had passed a sentence of rigorous imprison ment for one year and of fine, which is a sentence he could not have passed on an European British subject. 3. If this case be sent back for a new trial by the Magistrate the only benefits the accused would gain, would be that he might claim trial by jury, That privilege he did not claim from the Magistrate nor from the Judge, and we do not see that the law constrains us to compel him to claim it. The privilege which an European British subject as such, enjoys when tried for an offence by a District Magistrate are, firstly, that the Magistrate's powers of punishment are much restricted, and secondly, that he can claim trial by jury. The latter privilege the applicant here has not claimed. The plea is that, as the sentence passed, by the Magistrate was such a sentence as he could legally have passed in the case of an European British subject, there is no reason why, against his will, the applicant should be forced to undergo a new trial. His appeal to the. Sessions Judge, as to his position as an European British subject, was, he says, instituted with a view to establish his status as such subject, and that status being now established, he desires that his appeal on the merits against his conviction should be heard and disposed of. 4. We think this reasonable. We see no advantage in compelling the applicant to undergo a new trial, the proceedings at which, (in case he should hot claim to be tried by a jury) would be in every way the same as at the former trial, and the sentence passed, on which new trial, would be appealable to the Court of Sessions. 5. In our opinion the order of the Sessions Judge, directing a new trial, was a wrong order. We set it aside, and now direct the learned Sessions Judge to hear and, dispose of the appeal instituted by the applicant against his conviction.