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and went to live in a different district and in that district applied for an order for
maintenance against her husband,

Hehl that, the wife being justified ia refusing to live with her husband and in
choosing her own place of residence the neglect of her husband to maintain her
was an offence within the jurisdiction of the appropriate Court [349] at the place
where the wife resided In re the petition of Shaik Fakrvdin (2) distinguished
In the matter of the petition, of W.B. Todd (3) followed.

[R., 3 P.R, 1893 (Or.).]

THE facts of this case sufficiently appear from the judgment of
Knox, J.

Mr. J. Simeon, for the applicant.

Mr. C. Ross Alston, for the opposite party.

The Government Pleader (Munshi Bam Prasad), for the Crown.

JUDGMENT.

KNOX, J. On the loth October 1890, Mary DeCastro, lawfully
married wife of Malcolm DeCastro, applied under s. 488 of the Code of
Criminal Procedure for an order directing her husband to make a monthly
allowance for her maintenance and that of her three children. Summons



* Criminal Revision No, 170 of 1891.
(1) L..R, 2 Q.B.D, 5.58. (2) 9 B. 40. (3) 5 N.W-P.H.C.B. p, 237.

221



13 All. 380 INDIAN DECISIONS, NEW SERIES [Vol.

1891 to appear and answer to this application was served upon Malcolm
APRIL 4. DeCastro. It is evident from the record and as a matter of fact admitted

by him that he made no appearance and allowed tho case to proceed

BEVI- against him ex-parte.

SIGNAL From the statement on oath of Mrs. DaCastro it appears that she

CRIMINAL ^ VQ| ^ w 'kh ^er husband till the year 1881 ; that she went on a temporary

' visit to her sister, and on her return to her husband found herself com-

13 A. 848 polled to leave him because he had a woman living with him.
11 A.W.N. Upon these statements the Magistrate of Allahabad passed an order

(1891) 115. for maintenance. Malcolm DeCastro now applies to this Court to revise
that order on the ground that he was a resident of Ajmere at the time.
Mrs. DeCastro had made the application for maintenance, and conse-
quently the Oantonment Magistrate of Allahabad had no jurisdiction to
entertain the application. He put forward two other grounds as grounds
why the order of the Magistrate should be revised, but they are grounds
which entirely deal with facts, and, sitting as a Court of Revision, I see
no reason to interfere with the Magistrate's finding on those facts.

There remains the question of jurisdiction. Mr. Simeon, who ap-
peared for the petitioner, maintained that the only Court which had
[350] jurisdiction was the Court within the local limits of whose jurisdic-
tion his client was actually residing at the date when the application for
maintenance was instituted. He referred the Court to the case of
Fakrudin (I).

Mr. Boss Alston, who appeared for Mrs. DeCastro, contended that
the Magistrate of Allahabad had jurisdiction and that the casa before this
Court differed from that before the Court at Bombay. It was proved in
the case before this Court that the wife had good cause for refusing to live
with her husband, and in such a case she was at perfect liberty to choose
her own place of residence. She had, moreover, the right to be maintained
by her husband at the place of residence which she might choose, and if
he failed to maintain her she had a right to institute her application for
maintenance in the district in which she happened to reside.

The learned Government Pleader, who appeared in support of the
Magistrate's order, drew attention to the case of W. B. Todd (2).

The question of jurisdiction is one which must be decided by the
provisions of the Code of Criminal Procedure. The neglect to maintain
a wife is an offence, inasmuch as it is an omission which is made punish-
able by the Code, and as an offence its place of trial must ba determined
by the provisions laid down in Chapter XV of the Code. In the present
instance lam satisfied that Mrs. DaCastro has proved that her living
apart from her husband was a lawful act, and that she was entitled to be
maintained by him at Allahabad, which she had chosen as her place of
residence. The neglect to maintain her was thus an offence committed
within the local limits of the jurisdiction of the Magistrate of Allahabad.
This is in accordancs with the view taken by this Court in Todd's case,
and I therefore find that the contention of want of jurisdiction fails.

The case before the Bombay High Court appears to have been based
upon facts of u different kind.

The application is dismissed and the order of the Magistrate of
Allahabad maintained.



(1) 9 B, 40. (2) 5 N. W.P.H.C.R. p. 237.

222



YII] QUEEN-EMPRESS V. BUDH SEN 13 All. 352

13 A. 331 = 11 A.W.N. (1891) 109. 1891

[35i] EEVISIONAL GEIMINAL. APBIL*.

Before Sir John Edge, Kt., Chief Justice and Mr. Justice Straight. BEVI-

SIONAL

QUEEN-EMPRESS v. BUDH SEN AND ANOTHER.* [4th April, 1891.J CRIMINAL.

Act KLV of 1860 (Indian Penal Code), s. 182 Definition cf t offence provided for in s. 182, jg ^ 351=3

explained. 11 A W N

In order to constitute the offence defined in s. 182 of the Indian Penal Code it ' '

is not necessary that the publio servant to whom false information is given

should be induced to do anything or to omit to do anything in consequence of

such information. The gist of the offence is not what action may or may not

be taken by the publio servant to whom false information is given ; but the

intention or knowledge (to be inferred from his conduct) of the person supplying

such information. Golam Ahmcl Kazi (1) dissented from.

THE facts of this case are fully stated in the judgment of Straight, J.
Mr. W. Colvin, Hon'ble Mr. Spankie, Mr. A. H. S. Reid and Pandit
Sundar Lai, for the petitioners.

The Public Prosecutor, Mr. C. Dillon, for the Crown.

JUDGMENT.

STRAIGHT, J. This is an application for revision of an order in
appeal passed by the District Judge of Aligarh on the 4th December 1890,
affirming a decision of the Assistant Magistrate of the same place, dated
the 17th November 1890, by which be convicted the two petitioners,
Budh Sen and Narain Das, of offences under s. 182 of the Indian Penal
Code and sentenced them respectively to undergo rigorous imprisonment
for four months, and severally to pay a fine of Es. 300, and in default of pay-
ment to suffer a further term of imprisonment for one month and fifteen days.
The facts which have been found by both the lower Courts, behind whose
findings in that respect I cannot go, are as follows : The petitioners are
banias by caste residing in different muhallas of the city of Aligarh, but
having their places of business in Pidruganj. On the evening of the 24th
August 1890, about 9 P. M., the then Magistrate of the district, who was
out on duty in connection with the Muharram festival then going on,
received a telegram which, no doubt, came from Budh Sen and Narain
Das, couched in the following terms : ' Yester night at one, two hundred
Kasais Phopala, bearing lathis, attacked Kalyanganj, Pidruganj, for [352]
plunder and murder. Sadik Ali, Kotwal, Shiam Lai, Jamadar, dispelled
them : there is danger from them to-night also ; please arrange." The
Magistrate in his evidence, which was given on the hearing of this charge,
stated that he took no action on the telegram, as he did not believe the
statements. Had he done so, he would have sent police to take care of
the places mentioned in it. It is in respect of the sending of this telegram
to the Magistrate of the district that the petitioners have been convicted
under s. 182 of the Indian Penal Code. Mr. Colvin, who argued the peti-
tion for revision, has urged that it was a bad conviction in law, because
there was nothing in the terms of the telegram to show that the persons
who sent it intended to cause or knew it to be likely that they would there-
by cause a publio servant to use bis lawful power to injure or annoy auy
particular person or persons, or to do or omit to do anything which he
ought not to have done or have omitted to do had the true state of facts in

* Criminal Revision No. 618 of 1890.
(1) 11 C. 314.

223



13 All. 353



INDIAN DECISIONS, NEW SERIES



[Yol



1891 regard to which such information was given been known to him. In
APRIL 4. support of his contention he has referred to the case of Golam Ahmed
Kazi (1) and no doubt there the Chief Justice of Bengal remarks
BK'VI- that as to s. 182, " that section must be read as a whole, and taken
SIGNAL as a whole, we think it applies to those cases in which the police are
CRIMINAL. i Q duced upon the information supplied to them to do or omit to
do something which might affect some third person and which they
13 A. 351 would not have done had they known the true state of things." If
11 A.W.N. thig view is correct it goes even further than the exigencies of the learned
(1891) 109. ' counsel's contention required ; but, with the most profound respect for the
learned Chief Jusfcica and the Judge who agreed with him, I regret; that
I cannot concur in the opinion so expressed. It appears to me to proceed,
first, upon an erroneous apprehension of the scope and object of s. 182 and
the mischief at which it was aimed, that section appearing in the chapter
relating to " contempts of the lawful authority of public servants," and,
secondly, upon an erroneous construction of the language of the section
itself. I cannot, having carefully examined ihe terms of the section,
come to the conclusion that it is essential for the public servant mentioned
[353] therein to have been induced to do anything or to omit to do any-
thing. It is sufficient if the party charged gave information which was
false, with the intention of causing or knowing it likely that a public
servant would be caused to exercise his lawful power or authority to the
injury of an individual, or to do or omit to do something which he ought not
to do or omit to do were the true state of facts known to him. In other
words, the criminality contemplated by s. 182 doe? not depend upon
what is done or omitted to be done by the public servant on such false
information, but what was, from the facts, the reasonable intention to be
inferred on the part of the person who gave the false information. I -also
wish to remark that it seems to me that s. 182 contemplates two intentions
on the park of the person giving the false information ; first, the intention
to cause or the knowing it to be likely that he will thereby cause a public
servant to use his lawful power to the injury or annoyance of any person
or persons, and, secondly, the intention to cause or the knowing it to be
likely that he will thereby cause such public^ servant to do or omit to do
same act, which, if the true state of facts were known to him, he would not
do or omit to do. Applying this construction of the section to the facts of
this case, I am quite unable to say that the convictions of these two persons
were wrong. The Magistrate has said that if he had believed the statements
contained in the telegram he would have sent police to take care of the places
mentioned in it. The result would have been that he must have with-
drawn police from other parts of the town, and, moreover, he might, with
this telegram before him, have caused a considerable body of police to go
into the Kasaia' quarter to keep them in their houses and prevent them
creating a disturbance. It is immaterial, however ; to consider the precise
nature of the action of the Magistrate ; the question is, what action the
persons who sent that telegram contemplated that the Magistrate would
take? At least they intended and contemplated that the Magistrate
would do some act, which, had he known the true facts, he would not
have done.

; In my opinion this is the kind of mischief at which the latter por-
tion of s. 182 is aimed. Persons are not, by making reckless [354]
statements to a public servant, to bring tho office of that public servant



YII] QUEEN-EMPRESS V. BUDH SEN 13 All. 355

into contempt, and it is absolutely indifferent whether, by means of false jgQl
information given with any of the intentions I have mentioned, he is or is APRIL 4.
not induced to do or omit to do any act. The criminality of the party
is determined by his giving information which he knows or believes to be EEVI-
false with certain specified intentions to the nature of which I have



referred. The convictions are most proper and should be sustained. n RTMINA iv
The offence is a most mischievous one, particularly at such a time as this _
telegram was sent, when the relations between the Muhammadans and 13 A. 351 =
the Hindus of Aligarh were greatly strained and the Magisterial authori- n A.W.H.
ties were placed in a position of great difficulty and delicacy to prevent (igQl) 109.
friction and disturbance between these two sections of the community.
False information given to the Magistrate at such a time, which might
lead him to take action which, if he had known the truth, he would not
have taken, might have led to most serious cqnsequences, and it is well
that people should understand that offences of this description will not be
punished merely with a fine. The only thing to be said for these petitioners
is that they did put iheir names to the telegram that was sent and that
there was no difficulty in discovering its origin. I hope I am not showing
undue leniency if, while rejecting the application for revision in its main
details and sustaining the fine of Es. 300, I reduce the term of rigorous
imprisonment from four to two calendar months.

EDGE, C. J. It appears to me that the High Court at Calcutta in the
case of Golam Ahmed Eazi (1) read s. 182 of the Indian Penal Code as
if no offence could be committed under that section unless the public servant
referred to in it had been induced by information supplied to him to do or
omit to do something which might affect some third person, and which he
would not have done or omitted to do had he known the true state of things,
I entirely agree wibh my brother Straight that the question whether the
public servant was induced to take action or to omit to take action is abso-
lutely [355] immaterial so far as this section is concerned. The offence is
giving information which the informant knows or believes to be false and
his intention thereby to cause or his believing or knowing it to be likely
that he will thereby cause the public servants o use the lawful power of
such public servant to the injury or annoyance of any person, or to do
or omit anything which the said public servant ought not to do or
omit if the true state of facts respecting which information is given were
known by him. It appears to me that there may be many cases, which,
in truth, may be cases of hoaxes, which would still come within this
section ; as, for example, suppose a man, knowing the statement to be
untrue, but intending the Magistrate to act upon it, informed the Magis-
trate of the District that a violent fire was raging in a city in the district
of which he bad charge. Now if the Magistrate believed that statement,
he would naturally send as many police as he could spare to assist in-
quelling the fire and keeping order. He might possibly also ask for the
assistance of the military, if there were any in the neighbourhood.
That would be a perfect example of a hoax, and I have not a doubt
that it would come within s. 182, whether the Magistrate acted upon the
information or not. To take another example of a case which in my
opinion would come within the section, although the public servant was
not induced to take ari action or to omit to take action upon the information
given to him. Let us say that a man had absconded for an offence from
Allahabad and that it was surmised that he would seek to escape at one of



A VII 29



(1) 14 C. 314.
225



13 All. 356 INDIAN DECISIONS, NEW SERIES [Vol.

1891 fche shipping ports. Information of his having absconded would be
APRIL 4. communicated to those ports, Calcutta amongst the number. A person

who, knowing that that man had not been arrested, and intending that the

REVI- authorities at Calcutta should cease to watch the outward-bound shipping,

SIGNAL telegraphed to the authorities at Calcutta informing them that the absconder

P MINAL had been arrested elsewhere, would in my opinion have committed an

J> offence under s. 182, although the public servant at Calcutta had not acted

18 A. 851= on the telegram but had persisted in his surveillance of the outward-bound
11 A.W.N. shipping. I agree with my brother Straight that the intention of the
(1891) 109. Legislature was that a public servant should not be falsely given inform-
ation with the [356] intent that he should be misled by a person who
believed that information to be false and was intending to mislead him.
In this particular case probably a sentence of two months' rigorous im-
prisonment and a fine of IJs. 300 will be sufficient to operate as a warning
to others who may desire to give false information to public servants ; and
they may take this further warning that, if in future in similar cases the
full penalty given under s. 182 is awarded, I shall hesitate before interfer-
ing with such a sentence. The application for revision to the extent
of the punishment being reduced is allowed, otherwise it is rejected.



13 A. 356 = 11 A.W.N. (1891) 10$.

APPELLATE CIVIL.
Before Mr. Justice Straight and Mr. Justice Tyrrell.



DURGA DAI (Opposite party) v. BHAGWAT PRASAD (Petitioner). *

[7th April, 1891.]

Execution of decree Act IV of 1882 (Transfer of Property Act), s. 90 Nature of decree
contemplated by that section.

The plaintiff obtained a decree on a hypothecation bond, the decree providing
that the money secured by the bond was to be realised by eale of the hypothe-
cated property, and, if that proved insufficient to satisfy the decree, by Bale of
other property of thsjjudgment-debtor. The hypothecated property, was sold and
the proceeds were not sufficient to satisfy the decree. The decree-holder there-
upon applied for enforcement of that portion of the decree which related to the
other property of the judgment debtor. To this application itgwas objected that
it was necessary to obtain a decree under s. 908of the Transfer of Property Act
(IV of 1882). This objection was allowed and the decree-holder applied for and
obtained a decree under the said section. The judgment-debtor then appealed
against that decree on the ground, amongst others, that, looking to the terms
of the original decree, the application under s. 90 was superfluous.

Held, that the decree contemplated by s. 90 of the Transfer of Property Act is
in fact an order to be obtained in execution of a decree for sale ; and though in
the present instance the application for such a decree may have been superfluous,
it may nevertheless be regarded as an application for (execution of a decree by
enforcement of a portion of it against property other than the mortagaged property.
Miller v. Digambari Debya (1) distinguished ; Bafizud-in Ahmad v. Damodar
Das' (2) and Raj Singh v. Parmanand (3) referred to.

[Dlss., 33 0. 367=4 C.L.J. 141 ', P.. 21 A. 453; R.. 14 A. 513 = 12 A.W.N. 80 ;
28 A. 365 = A.W.N. (1906) 44 = 3 A.L.J. 171 ; 6 O.G. 114.

[357] THE facts of this case sufficiently appear from the judgment
of Straight, J.



* First Appeal, No. 70 of 1890, from an ordsr Babu Brijpal Das, Subordinate
Judge of Gorakpur, dated the llth January 1890.

(1) 10 A.W.N. (1890) 142. (2) 9 A.W.N. (1889) 149. (3) 11 A, 486.

226



YII]



DURGA DAI V. BHAGWAT PRASAD



13 All. 358



Mr. Abdul Eaoof and Munshi Gobind Prasad for the appellant.
Mr, J. E. Howard for the respondent.

JUDGMENT.

STRAIGHT, J. (TYRRELL, J., concurring). This is an execution first
appeal from an order of the Subordinate Judge of Gorakhpur.dated the llth
January, 1890. On the 19th August, 1882,^one Lala Kunjbehari, husband
of Durga Dai, appellant, executed an hypothecation bond for Es. 5,000
in favour of the respondent. On the 26th October, 1887, the respondent
obtained a decree against Durga Dai, her husband being then deceased,
upon the bond for Ks. 7,205, principal and interest, with a direction con-
tained therein that the decretal amount was to be realised by sale of
the hypothecated property, and, in the event of that proving insufficient,
by sale of other property of the deceased obligor. On the 8th May, 1888,
the first application for execution was made, and it was confined to
an application for sale of the mortgaged properties. Objections were
taken by a third party, but they were disallowed, and subsequent-
ly, by an order of the 21st September, 1888, the Court held that the
decree-holder must obtain an order absolute for sale. On the 26th February,

1889, an order absolute for sale having.been obtained, a further application
or execution was put in, and, as it appeared that the property sought to be

sold was ancestral property, the execution was transferred to the Collector,
who, on the 21st July, 1889, sold the properties for Es. 5,600 which amount
was insufficient to satisfy the amount due under the mortgage. On the
23rd September, 1889, the decree-holder asked the Court to enforce that
part of the decree which provided that, in the event of the mortgaged pro-
perty being insufficient, the decree might be executed against other property
of the judgment-debtor, mortgagor, and he prayed for attachment and sale
of 2 annas of Mouza Pindra and 2 annas of Baikantpur. On the 25th
November, 1889, Durga Dai filed objections, the only material one of which
was the following: " That the property against which the decree was pass-
ed [358] enforcing hypothecation has been sold. Now other property not
hypothecated cannot be sold until a decree under ?,. 90 of Act IV of 1882
be obtained." This objection was allowed on the 14th December, 1889.
On the 19th December, 1889, the decree-holder asked that the decree under
s. 90 of Act IV of 19B2, might be framed for the balance of the decretal
money, and that such balance might be realised. On the llth January,

1890, the Subordinate Judge ordered that the decree-holder be empowered
to proceed for Es. 3,976 by attachment and sale of the other property of
the judgment-debter, and on the same day a decree was formally prepared
in accordance with 3. 90 of the Transfer of Property Act. It is this pro-
ceeding of the Subordinate Judge of the llth January, 1890, that is made
the subject of this appeal, and the only point seriously argued before us
was that, 'as the decree itself provided further sale of other property than
the mortgaged property in the event of the mortgaged property proving
insufficient, no decree under s. 90 was necessary. This contention comes
with very bad grace from the judgment-debtor, who, on the 23rd November,
1889, successfully objected to a then pending application for execution of
the decree as it stood, upon the ground that a decree under s. 90 was neces-
sary. No doubt the object of this was patent enough : the judgment-debtor
wishes to clear out of the way the application of December, 1889, in hopes
of successfully hereafter contending that any subsequent application for
execution is barred by limitation. In my opinion the decree mentioned
in s. 90 of Act IV of 1882, is one that is given in the execution-proceedings

227



1891

APRIL 7.

APPEL-
LATE
CIVIL.

ISA. 356 =
11 A.W.N.
(1891) 104.



13 All. 359



INDIAN DECISIONS, NEW SERIES



[Vol.



1891 arising under a decree for sale upon a mortgage and stands upon the same

APRIL 7. footing as an order absolute for sale, which the Full Bench of the Court

has held to be a proceeding in execution. Even if it be contended by the

APPEL- judgment-debtor that the application of the 19th December, 1889, was

LATE superfluous, having regard to the terms of the decree, I am not prepared to

CIVIL say ^ at * fc may nofc P r P er ly be treated and regarded as an application for

' execution of decree by enforcement of a portion of it against property other

13 A. 356= than the mortgaged property. In the course of the argument of this case, a
11 A.W.N. ruling of my [359] own was referred to in the case of Miller v. Digambari
(1891) 104. Debya (1). I pointed out to the learned pleader for the appellant the inappli-
cability of that ruling to the present suit. What was held there was that if
a mortgagee comes into Court upon an instrument which contains not only
ordinary mortgage terms in reference to the immoveable property but a
personal covenant upon the part of the mortgagor, and, as part of the relief
he seeks, asks for a decree declaring his rights personally against the



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 35 of 155)