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distinct and separate application for execution.

And lastly it was argued that the Courts below had no power to " go
behind " the order of the 4th of August, 1890, by which the judgment-
debtors' objection to execution had been shelved in default of their appear-
ing on a day on which they had not been summoned [205] to appear.
In my opinion there is nothing in this contention. I would apply to it
the principle recently unanimously adopted by all the Judges of this Court
in the case of Dhonkal Singh v. Phakkar Singh (1), and would hold that
as the Court below had not judicially decided that the judgment-debtors'
objections to execution were unsound, and had simply struck them off the
file of pending cases by reason of the objectors' failing to appear, that
Court was quibe justified (when those objections were renewed) in after-
wards hearing the parties respecting them and in judicially deciding
whether they were valid or not. The Court did decide that the objections
were valid and that they were fatal to the applications for execution. That
decision is in my opinion perfectly right. I therefore dismiss the appeal
with costs.

Appeal dismissed.



ISA. 208 = 13 A.W.N. (1893) 105.

REVISIONAL CRIMINAL.
Before Sir John Edge, Kt., Chief Justice and Mr. Justice Aikman.



QUEEN-EMPRESS v. MAULA BAKHSH.* [25th April, 1893.]

Criminal Ptocedure Code, ss. 423, 439 Sessions Judge, powers of, as a Court of appeal
Commitmtnt.

It is competent to a Sessions Judge acting as a Court of appeal under s. 423 of
the Code of Criminal Procedure, 1892, having reversed the finding and sentence,
to order the appellant to be committed for trial to the Court of Session. Quetn-
Empress \. Sukhx (2) overruled.

[F., 16 P.R. 1895 (Cr.) ; R M 27 C. 172 (173); 7 C.W.N. 301 (304) ; 17 C.P.L.R. 97
(102).]



(1) 15 A. 84.

A VII-107



* Criminal Revision, No. 105 of 1893.
849



(2) 8 A, 14.



1893

APRIL 14.

APPEL-
LATE
CIVIL.

15 A. 198 =

13 A.W.N.
(1893) 93,



15 All. 206 INDIAN DECISIONS, NEW SERIES [Yol.

1893 THIS was an application on behalf of Government for revision of an

APRIL 25, otder of the Sessions Judge of Meerut on appeal from an order of a
first class Magistrate of the Bulandshahr district, convicting the appel-
EEVI- lant of an offence under s. 379, read with s. 511 of the Indian Penal
SIGNAL Code, and sentencing him to six months' rigorous imprisonment. It ap-
C MINAL peared that there was reason to believe that the appellant had, when put
' on his trial before the Magistrates been four times previously convicted.
15 A. 203= Only one of such convictions was proved against him, the Magistrate
13 A.W.N. omitting to question him about the others. On appeal the Sessions Judge
(1893) 105. [206] quashed the conviction and directed a new trial, adding that care
should be taken that all previous convictions are proved under s. 511 of
the Criminal Procedure Code. An application for revision of this order was
made on behalf of Government on the following grounds : (1) Because
having regard to the rulings of the High Court, the case not being
exclusively triable by the Court of Session, the Sessions Judge bad no
power on the appeal before him to quash the proceedings and order a
commitment, and (2) because the learned Judge's direction to the Magis-
trate to prove certain previous convictions against the accused, in a case
to which s. 75 of the Indian Penal Code was not applicable, was illegal.
The Public Prosecutor (Mr. A. Strachey), for the applicant.

JUDGMENT.

EDGE, C. J., and AIKMAN, J. The question which we have to
consider here is whether a Sessions Judge sitting as a Court of appeal
under s. 423 of the Code of Criminal Procedure 1882 can, having reversed
the finding and sentence, order the appellant to be committed for trial to
the Court of Session. According to the ordinary English construction
of ol. (6) of s. 423, we have no doubt that the appellate Court, whether
that appellate Court is a Court of Session, or a District Magistrate can,
in an appeal from a conviction, having reversed the finding and sentence,
order the accused to be committed to the Court of Session. That power
is conferred in our opinion by sub-cl. (1) of ol. (b) of s. 423, and is not in
any way controlled by the prohibition as to enhancing a sentence con-
tained in sub-cl (3) of cl. (b) of s. 423. There can be no doubt that it has
been considered by this High Court that when acting under s. 439 of the
Code, it had power, having reversed the finding and sentence, to order a
committal for trial to a Court of Session. That power could not be
exercised under s. 439, read with s. 423, unless the appellate Court
referred to in cl. (b) of s. 423, had by reason of that latter section such
power conferred upon it. It was contended that to hold that a Court of
Session had such a power conferred upon it would be inconsistent with the
course of legislation. In support of that argument it was pointed out that
the power of enhancement which was conferred by s. 280 of Act No. X of
1872 [207] upon all appellate Courts, was taken away by Act No. X of 1882,
and that power was by the latter Act restricted to a High Court when
acting under s. 439 of Act No. X of 1882. Section 28 of Act No. XI of
1874 amended s. 280 of Act No. X of 1872, and whilst leaving the power
of enhancement in the appellate Court, it conferred on the appellate Court
a further power of ordering an appellant to be re-tried, presumably to be
re-tried by the same Court which had originally tried him. Consequent-
ly under s. 280 of Act No. X of 1872 before it was amended, or as
amended by s. 28 of Act No. XI of 1874, the appellate Court
had not under those sections a power to order a commitment to itself
or a commitment at all. When we come to Act No. X of 1882, we

850



YII]



QUEEN-EMPRESS V. NARAIN



15 All. 208



find a great change in procedure. The power of enhancement which had
existed in the appellate Court as suoh was taken away, but words were
introduced which can only be construed as conferring upon the appellate
Courb a power of ordering the accused appellant to be committed to the
Court of Session even where the Court of Session was the appellate
Courb. The object of the alteration in the procedure may have been to
prevent a Court other than a High Court enhancing sentences except upon
a fresh brial before itself, and under circumstances which would give the
accused a right of being heard, and having his witnesses heard by the
Court enhancing the sentence, and would give him an appeal from the
conviction under which the heavier sentence was passed. Whatever may
have been the object of the Legislature we consider no other construction
can be pub by us on s. 423 of Act No. X of 1882. In the course of the
argument we were referred to the decision of this Court in the case of
The. Queen v. Seetul Pershad (1). That was a case which was decided in
1873, and turned upon the construction of the proviso contained in
8. 296 of Act No. X of 1872, and in our opinion it has no bearing on this
case. We were also referred to the decision of this Court in Queen-Empress
v. Sukha (2). That case is directly in point, but with every respect for
the decision of the learned Judge who decided that case we entirely differ
[208] from his reasonings and conclusions. That decision has also been
dissented from in the case of Queen-Empress v. Abdul Bahiman (3). It
has also been contended here that even if the Sessions JuHge had power to
make the order that the accused be committed to his Court for trial, we
ought to set aside that order because it was obviously made with the
intention that a heavier sentence should be imposed in the Sessions
Court in case of a conviction than had been imposed by the Magistrate.
We find nothing in s. 423 of Act No. X of 1882 to limit the power of the
Sessions Judge to do any of the acts which he as an appellate Court is
empowered to do by sub-cl. (1) of ol. (b) of s. 423. Although we dismiss
this application in revision, we consider that ib was a most proper case for
the Public Prosecutor to bring before the Court in order to settle the
procedure.



IS A, 208 = 13 A.W.N. (1893) 107.

EEVISIONAL CRIMINAL.

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice, Aikman.



QUEEN-EMPRESS v. NARAIN.* [27th April, 1893.]

Act V of 1876 s. 22 - Government Notification (India) No. 173 of the Hl/i March, 1889
Sentence Reformatory School.

Where a Voy ovar fourteen, but otherwise of uncertain age, was ordered upon
conviction by a Magistrate, to be detained in a Reformatory School for two years :
Held t, licit suoh seuteuoe, having regard to the rule made by the Governor-
General in Council on the 14th of Maroh 1889, under s. 22 of Act No. V of 1876,
was illegal. The proper course for the Magistrate to have adopted with reference
to the above mentioned rules was to have ascertained as near as might be the
exact age of the offender and sentenced him to a specified period of detention
which should be that elapsing between his conviction and the attainment by him
of the age of eighteen years.

[R., Rat, Un. Or, C. 708.]



* Criminal Revision, No. 112 of 1893,
(1) 5 N.W.P.H.C.K, 168, (2) 8 A. 11,

851



1893

APRIL 25.

BEVI-

SIGNAL



IS A. 208 =
18 A.W.N.

(1898) 103.



(3j 16 6. 580.



15 All. 209 INDIAN DECISIONS, NEW SERIES [Yol.

1893 THIS was an application on behalf of Government for revision of an

AtiRL 27, order passed by the Assistant Magistrate of Meerut. The facts of the

case sufficiently appear from the judgment of the Court.

EEVI- The Public Prosecutor (Mr. A.Strachey) for the applicant.

SIONAL JUDGMENT.

CRIMINAL.

EDGE, C. J., and AIKMAN, J. Narainwas convicted of an offence

18 A. 208= under s. 379 of the Indian Penal Code, and was sentenced to six months'
13 A.W.N. rigorous imprisonment by a Magistrate of the first class. [209] In the
(1893) 107, judgment of that Magistrate Narain was under tha age of 16 years and
was a proper person to be an inmate of a Koforrnatory School. The
Magistrate, acting under Act No. V of 1876, directed that Narain, instead
of undergoing the sentence of six months' rigorous imprisonment, should
be sent to a Eoformatory School and should be there detained for
a period of two years. The Magistrate found that Narain was fourteen
years of age, but did not find how much beyond fourteen years of
age he was. Under s. 22 of Act No. V of 1876, the Governor-General
in Council on the 14th of March 1889, made the following rule : " No
boy shall be sent to a Eeformatory School, if under ten years of age,
for a less period than seven years, if ovar ten years of age, for a less
period than five years, unless he shall sooner attain the age of eighteen
years." That rule was published in Notification No. 173 in part I
of the Gazette of India on the 16th of March 1889, at page 151.
The intention of the rule is clear, the manner in which the intention is
expressed is not, as it does not provide, except by implication, what shall
be the term for which a boy over the age of thirteen should be sent to a
Keformatory School. The sentence must be plain and complete in itself,
so that the officer who has to act under the warrant may knew exactly
for what period the person sentenced may be legally detained. In the
present case a direction that Narain should be detained in a Eeformatory
School for a period of five years unless he should sooner attain the age
of eighteen years, would not, it appears to us, be a legal sentence, as it
would leave it to the officer in charge of the Eeformatory School to deter-
mine when the sentence would expire otherwise than by reference to the
warrant. We, for want of information as to the precise age of the boy,
cannot amend the order of the Magistrate. We set aside the order direct-
ing Narain to be detained in the Eeformatory School for two years, and
we direct the Magistrate to ascertain what was the precise age of the boy
at the date of his order, and to make an order that he be detained for
such period as would be equivalent to the period intervening between
Narain's then age and eighteen. As the prisoner is already in the Eeforma-
tory, the order [210] will be so worded that the period will run from the
date of the original order and will determine on the date, which must be
specified, on which the prisoner will attain the age of eighteen. The
period of detention must be clearly expressed in the warrant.



852



YII] QUEEN-EMPRESS V. SOSHI BHUSHAN 15 All. 211

15 A. 210 = 13 ft.W.N, (1893} 96. .(393

APPELLATE CEIMINAL. APRIL 29.

Before Sir. John Edge, Kt., Chief Justice, and Mr. Justice Aikman. APPPT,

LATE

QUEEN-EMPRESS v. SOSHI BHUSHAN.* CRIMINAL

[29th April, 1893.]

Act XLVof 1860, ss. 463, 464, 470, 471, 23, 24, 25, 29-Using forged document False 13 Al 210=1
certificate of attendance at law lectures" Claim "" Proper ty>" 13 A W.N.

The terms "claim " in s. 463 of the Indian Penal Code is not limited in its (1893) 98<
application to a claim to property.

The term " property " in the same section will oover a written certificate.

It is hot necessary to constitute a forgery under s. 463 of the Indian Penal Code
that the property with which it is intended that the false document shall cause
a person to part should ba in existence at the time when the false document was
made. Queen-Empress v. Haradhan (I), dissented from. Queen-Empress v.
Appasami', (2) and Queen-Empress v. Oantsh Khanderao and Oanesh Daulat
(3) approved.

One S. B. presented to the Principal of Queen's College, Benares, a false certi-
ficate purporting to have been granted by the Principal of Canning College,
Lucknow, to. the effect that he had attended a certain proportion of a certain first
year course of law lectures delivered at Canning College, S. B. in fact never
having attended such lectures. Had that certificate been a true one it would have
entitled S. B. to attend a further course of law lectures at any one of several
associated institutions, amongst which was Queen's College, Benares, without
attending or paying the fees for the first course o! lectures.

On presentation of the above certificate 8. B. obtained permission to attend.
and attended, a course of second year lectures at Queen's College, Benares, with-
out attending or paying the fees required for the first year course. After S. B.
had attended the above mentioned second-year course of lectures at Queen's
College, Benares, ha again presented the said false certificate to the Principal of
Queen's College with a view to his obtaining a consolidated certificate, which was
necessary, as he alleged, to enable him to become a candidate in the Judge's
Court Pleadership Examination jn Calcutta.

Held that on both occasions, when he presented the false certificate to obtain
admission to the] second -year law claes it Queen's College, Benares, and again
[211] whence endeavoured by its use to obtain the consolidated certificate in
order to gain admission to the Pleadership Examination in Calcutta S. B. was
guilty of the offence provided for by p. 471 of the Indian Penal Cods.

[R., 21 A. 113(115) = 18 A.W.N. 197 ; 28 A. 358 = 3 A.L.J. 149 (155 = A.W.N. (1906)
48 = 3 Cr.LJ. 249 ; 19 B. 717 (723) ; 21 B. 517 (520) 5 22 B. 768 (769) ; 25 C. 512
(519) = 1C.W.N. 255 = L.B,R. (1893 1900) 437; 29 M. SO (98) = 1 Weir, 538 A.;
9 Cr.L.J. 15 (18) = 4 L.B.B. 315 (317) ; 11 Cr.L.J. 686 = 8 Ind.Cas. 596 = 3 Bur.
L.T. 11 ; 2 P.R. 18^5 (Cr.) ; 1 P.R. 1907 (Cr.) = 32 P.L.R. 1907 ; Rat. Un. Cr.
0,761 (762).]

THE facts of this case ara fully stated in the judgment of the
Court.

Mr. D. Banerji, for the appellant.

The Public Prosecutor (Mr. A. Strachey], for the Crown.

The judgment of the Court (EDGE, C. J. and AlKMAN, J.) was
delivered by EDGE, C. J.

JUDGMENT.

Soshi Bhushan Singh, who is described as a sou of Gopi Nath Singh,
was convicted by the Sessions Judge of Benares of an offence under

* Criminal Appeal, No. 180 of 1893,
(1) 19 C. 380. (2) 12 M. 151. (3) 13 B, 506,

853



18 All. 212 INDIAN DECISIONS, NEW SERIES [Yol-

1893 s. 471 of the Indian Penal Code, that is, of fraudulently and dishonestly

APRIL 39, using as genuine a document which he knew to ba a forged document, and

was for that offence sentenced to a term of six months' rigorous impnson-

APPEL- ment. From that conviction Soshi Bushan Singh has appealed. After

LATE hearing Mr. Dwarka Nath Ea.ne.rji for the appellant, and Mr. Arthur

CRIMINAL. St rac hey for the Grown, we took tiuaa to consider the wording of our

judgment, as the questions of law involved in the case seemed to us to be

ISA. 210^ important, but we had no doubt as to what our conclusions must be. We
18 l.W.N, may say at once that we entirely agree with the findings of fact set out
(1893) 98. in the very careful and able judgment of the learned Sessions Judge.

On the 3rd of November 1891 the prisoner presented to the
Principal of Queen's College, Benares, the following application : "To
the Principal, Queen's College, Benares. Sir, I should feel much obliged
if you would kindly allow me to get admission into the second year law
class of your College. As for my qualifications, I beg leave to state that
I passed the F.A Examination in 1886 from the Canning College, Luck-
now, and studied in the law class there for a considerable portion of the
session, during which between 60 and 70 lectures ware delivered ; and I am
almost sure that I was present in not less than 55 of them. So under the
present rules of your College, I attended a full course of lectures to
[212] be delivered in your College, and was present in more than 75 per
cent, of them. My transfer certificate is not with me for the present.
It is in the office of the Metropolitan Institution, which is yet closed for
the Dusserah vacation. I shall be able to produce it in a very short time.
Should I be -found behind the percentage required for the completion of
the first year lecture?, or I fail to produce the certificate in a reasonable
time, two months t the most, I should raise no objection to my name
being transferred to the roll of the first year class. I have, &c , SOSHI
BHDSHAN SINGH, Benares, the 3rd November 1891."

No student is permitted to attend the second year law class at
Queen's College unless he has attended the first year law class at the
College, or produces a " transfer certificate " granted by the Principal of
one of the other recognized Colleges or educational institutions, showing
that at such other College or institution he had attended a first year law
class. Upon that application the Principal of Queen's College, on the 4th
of November 1891, passed the following order :

" May join the second year class on condition that if his certificate is
incomplete he will be transferred to the first year."

The Professor of Law at Queen's College is paid by the fees received
from students admitted to the law classes. Those fees are as follows :
A student admitted to a first year law class pays Es. 5 as an admission fee
and Us. 45 as the tuition fee for that year. A student admitted to a second
year law class pays Es. 54 as the tutition fee for that year. A student
admitted to the second year law class in Queen's College on a " transfer
certificate " pays the latter fee of Es. 54 only to the College. In November
or December 1891, and after the Principal of Queen's College had passed
the order which we have set out, the prisoner presented to the Law
Professor of Queen's College the document which has been found to be a
forged document, and in respect of the using of which the prisoner has
been convicted. That document is as follows :

Certified that Soshi Bushan Singh attended the law class
attached to this College from June 1886 to February 1887. The [213]
roll was called 72 times during this period and Soshi Bhushan was



YII1 QUEEN-EMPRESS V. SOSHI BHDSHAN 13 All, 214

present in 63 of them. Fees paid up. M. J. White, M. A., Principal, 1893
Canning College. The 17fch March 1887. APRIL 29.

After perusing that document the Professor of Law returned it to
the prisoner. The prisoner was permitted, on the faibh of that document APPEL-
being a genuine " transfer certificate," to attend, and he did attend, the LATH
second year law class at Queen's College. After the completion of the npwiNAii

attendance of the second year law class, the prisoner, on the 21st or 22nd

of November 1892, presented to the Professor of Law the following 13 A, 210=
application : 13 A.W.N.

"To the Law Professor, Queen's College, Benares. Sir, As I have (1893) 98.
completed the course of lectures in the law class, I most respectfully beg
to request the favour of your granting me a certificate to that effect. I
have, &c., SOSHI BHUSEAN SINGH, Benares, the 22nd of November 1892."

Although the application bears date the 22nd November, 1892, it
apparently must have been presented on the 21sc of November, 1892, as
on the 21st of November the Principal of Queen's College passed on that
application the following order :

" Give him a certificate stating the period he has attended here."

On the 23rd of November 1892, the prisoner presented to the
Professor of Law the following application :

"To the Law Professor, Queen's College, Benares. Sir, I moat
respectfully beg to state that I am going to appear in the Calcutta Judge's
Court pleadership examination. But the authorities there do not
recognise two separate certificates from two separate institutions. I
therefore request the favour of your granting me a fresh certificate
consolidating these two into one. I have, &c., SOSHI BHUSHAN SlNGH,
Benares, 23rd of November 1892."

Upon that application the Principal of Queen's College, on the
24th of November 1892, passed the following order :

"Former application must be produced."

[214] The head clerk of Benares College asked the prisoner for his
11 transfer certificate, "and the prisoner gave to the head clerk the
document, bearing date the 17th of March 1887, which we have already
set out. A draft certificate stating that the prisoner had attended thirty-
nine out of sixty-eight lectures in the law department of Queen's College
from the 3rd of November, 1891 to the 23rd of November 1892 had been
prepared in the office of the College.

The papers were submitted to the Principal of Queen's College, and
the prisoner attended before him. The Principal's suspicions as to the
genuineness of the document which bears date the 17th of March 1887
were aroused, and he suspended the issuing of the consolidated certificate
pending inquiries. In the result the prisoner was prosecuted and was
convicted of the offence under s. 471 of the Indian Penal Code.

The signature of the document which bears date the 17th of March
1887 was not the signature of Mr. M. J. White, the Principal of Canning
College, Lucknow ; that document was not issued by his authority. Bet-
ween June 1886 and February 1887 inclusive, only forty-eight lectures,
and not seventy- two, were delivered in the law class of Canning College ;
the prisoner had not paid any fee for attendance at the law class of Canning
College ; his name was not on the register of Canning College as that of a
student attending the law class, and in fact he had not attended any of
the lectures of the law class of Canning College, Lucknow. It is obvious,
on the above facts, that the prisoner must have known that the document
bearing date the 17th of March 1887 was not, what it purported to be,

855



15 All. 215 INDIAN DECISIONS, NEW SERIES [Yol.

1893 a genuine transfer certificate. Ifc is also obvious that when the prisoner in

APRIL 29. November or December 1891 presenter! to-tbe Professor of Law of Queen's

College the document which bears data the 17th of March 1887, he did so

APPEL- with the twofold object of avoiding the necessity of attonding the first

LATE year law class and of paying the fees of Rs. 5 and Es. 45, which, as a

CRIMINAL, student attending the first year law class, he would otherwise be obliged

to pay, and of obtaining admission to the second year law class.
15 1. 210= [215] It is also obvious that when the prisoner in November 1892 gave

13 A.W.N. to the head clerk of Queen's College the document which bears date the
(1893) 96. 17th O f March 1887, he did so in order to induce the Principal of Queen's
College to believe that he had attended a first year law class at Canning's
College, Lucknow, and thereby to obtain a consolidated certificate, which
according to his. application, dated the 23rd of November 1892, would be
required for the purpose of his being admitted to the pleadership examina-



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 125 of 155)