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go the length of Sir Richard Couch in the second paragraph of the judg-
ment delivered by him in the case of Cassidy. Still it may be that the
learned Judge's remarks were applied to the particular facts of that parti-
cular case, and possibly they ought not to be read as having any applica-
tion beyond the facts that were then before the Court.

(1) 4 B.H.G.R. Ct. 17.
399



14 All. 44 INDIAN DECISIONS, NEW SERIES [Yol.

1891 For the purpose of constituting an attempt under g. 307, Indian

AUQ 5. Penal Code, there are two ingredients required, first, an evil intent or

knowledge, and, secondly, an act done. I guard myself by saying that

APPEL- not every act done would be sufficient, as has been pointed out in the

LATE well-known case of Regina v. Brown <1). No one would suggest that

CRIMINAL ^ ^ intending to fire the stack of B, goes into a grocery shop and

buys a box of matches, that he has committed the offence of attempt-

14 A. 38= ing to fire the stack of B. But if he, having that intent, and having bought
11 A.W.N. the box of matches, goes to the stack of B and lights the match, but it is
(1891) 176. put out by a purY of wind, and he is so prevented and interfered with, that
would establish in my opinion an attempt.

It seems to me that if a person who has an evil intent does an act
which is the last possible act that he could do towards the accomplish-
ment of a particular crime that he has in his mind, he is not entitled to
pray in his aid an obstacle intervening not known to himself. If he did
all that he could do and completed the only remaining proximate act in
his power, I do not think he can escape criminal responsibility, and this
because, his own set volition and purpose having been given effect to
their full extent, a facts unknown to him and variance with his own belief
intervened to prevent the consequences of that act which he expected to
ensue, ensuing.

[44] For my own part, I think any other doctrine would be a most
dangerous one to lay down, and it is some satisfaction to know that
similar views have been expressed in the Crown Cases Reserved, Regina v.
Brown (1), in which it was shown that the case of Queen v. Collins (2),
which all criminal lawyers long doubted as sound authority, has been dis-
carded as no authority, and further that the cases of Regina v. St. George
(3) and Regina v. Lewis (4), which have also been seriously questioned,
will in all probability be at the very first opportunity overruled.

In the present case, looking to all the facts, I have no doubt that the
appellant had had his carbine capped ; that at the time he pulled the
trigger and the hammer fell he believed it to be capped ; that, whether ifc
was or was not capped at that time, the failure to discharge the weapon
was wholly independent of any action of his ; and that not only did he
have the intent to shoot the chaukidar and his party who were attempt-
ing to arrest him, but that he did the last proximate act that he could
do to the completion of the full acj that was within his intention and
knowledge.

It is of course obvious that one might refer to many instances and
examples, some of which would be within this rule and some would not,
but I do not myself think that any useful purpose will be served by my
prolonging this judgment. 1 have very carefully considered the words I
have used above, and I think, as far as I am competent to put the matter
into a clear and explicit form, that they lay down the true legal rule by
which the determination of a question of this short should be guided. I
am of opinion therefore that the learned Judge might properly have con-
victed this appellant upon s. 307, and that he wrongly convicted him under
ss. 299 and 300 read with s. 511.

I direct that the conviction be recorded under s. 307, Indian Penal
Code, and I order that the sentence of five years' imprisonment stand.

(1) L. R. 10 Q. B.D. 381. (2) L, and C. 471 = 33 L.J. M.C. 177.

(3) 9 C. and P. 483. . (4) 9 C. and P. 523.

400



YH] In re PETITION OP DAULAT SINGH 14 All, 46

14 A. 43 = !1 A.W.N. (1891) 179. 1391

[45] EEVISIONAL CRIMINAL. AUG. 81.

Before Mr. Justice Knox. KEVI-

SIONAL
IN THE MATTER OP THE PETITION OP DAULAT SlNGH.* CRIMINAL.

[Slab August, 1891.]

14 A. 45 =

Criminal Procedure Code, s. 55 Subsequent treatment of persons arrested under the ijiwN
provisions r>/ s. 55. Aiw.a,

Where a person is arrested by the police under the provisions of a. 55 of the' ' '
Code of Criminal Procedure he should always be given the option of release on
reasonable bail being supplied.

THIS was a reference made under s. 438 of the Code of Criminal
Procedure by the Sessions Judge of Meerut. The facts of the case suffi-
ciently appear from the judgment of Knox, J.

JUDGMENT.

KNOX, J. The learned Sessions Judge of Meerut has sent up this
case for revision of the order passed by the District Magistrate of Buland-
sbahr under s. 118 of the Code of Criminal Procedure. It appears that
Daulat Singh alias Dulla, the petitioner in this case had been proved,
either to the police in charge of the station within the circle of which the
applicant resided, or to the Magistrate in charge of the district, to be an
habitual robber and a generally a bad character. The police professed to
have arrested him under the powers vested in the police officer in charge
of the station by s. 55 of the Code of Criminal Procedure, and the objec-
tion which the learned Sessions Judge takes to the order passed in the
case is that such arrest was illegal, that upon such arrest the applicant
was not admitted to reasonable bail, as be should have been, that he was
detained in custody for some twenty days without proper information
being given him as to the cause for which he was detained, and that this
procedure had materially prejudiced the applicant in rebutting the allega-
tion made against him, that he is a man of a notorious bad character.
The second objection the learned Judge takes is that the evidence, or a
considerable portion of the evidence, is of a character which cannot at pre-
sent be believed in the Bulandshahr district. Over and above all this,
the learned Sessions Judge is of opinion that the security demanded from
the applicant is excessive.

[46] As I have already remarked in cases of this kind, the powers
with which officers in charge of police stations and District Magistrates
have been armed under the Code for the purpose of restraining bad char-
acters are exceptional powers. They provide very strong remedies, and
should never be put in force by either the officer in charge of a police sta-
tion or the Magistrate of a district, without the greatest deliberation, and
except upon evidence which convinces the Magistrate that in the interests
of public welfare it is absolutely necessary to demand from the person
before him security to be of good behaviour.

Still there can be no doubt that the Code of Criminal Procedure
contemplated that cases would occur, though they might be rare and
exceptional cases, in which it would be the clear duty of the officer
in charge of a police station to arrest or cause to be arrested any
person within the limits of his station, who is by repute an habitual



A VII-51



* Criminal Revision No. 519 of 1691.!
401



14 All. 47 INDIAN DECISIONS, NEW SERIES [Yol.

1891 robber, house-breaker or thief, &o. It would and will be a clear derelic-

Aua. 31. tion of duty in such a case for police officers in charge of the station

to abstain from arrest. While, on the one hand, any case in which

REVI- the section was put into force without care and good faith would call

:' SIGNAL for the strongest measures against the police officers so offending, on

CRIMINAL ^e fcber h aD <3, the officer who has the courage honestly to act in a

' case of necessity under the powers given to him by the section is acting

- li' A. 45= faithfully to the trust reposed in him. Comparing, however, s. 55 of the
-il A:W.N. Code of Criminal Procedure with the provisions contained in s. 112 and
-(1891) 179. the following sections, I think there is little doubt that s. 55 was intend-
ed, as the learned Judge rightly points out, for suppression of habitual
bad characters whom an officer in charge of a police station suddenly finds
within his circle, or about whom he has good cause to fear that they will
commit serious harm before there is time to apply to the nearest Magis-
trate empowered to deal with the case under s. 112. That, at any rate,
would be a safe way of using the powers given by the section. Look-
ing to the explanation given by the Magistrate of Bulandshahr, while
I am not prepared to say that the arrest by the police was illegal,
I do thick that it was unnecessary, and that it would have been
better for the District Magistrate to have used suo moto the proce-[47j
dure laid down in Chapter VIII of the Code. I am distinctly of opinion
that when the police do act under s. 55 they are bound to give the person
arrested the option of bail, and that bail shall be, as the Code requires,
not excessive and in accordance with the position in life occupied by the
person arrested. As regards the action of the Distsicfc Magistrate, I am
of opinion that the order in writing setting forth the substance of the
information upon which he professes to act should always, except in
cases in which action has been taken under s. 55 of the Code, accompany
the summons issued under s. 114, and in no case should a Magistrate
acting under s. 112 issue a warrant of arrest except upon the clearest
grounds for belief that unless he issues such warrant a breach of the peace
is inevitable. It is the intention of the Code that any man called to
meet the exceptional procedure laid down in Chapter VIII, should at
his own house have the fullest information compatible with the cir-
cumstances of the case as to the reasons why his liberty is in danger
of being interfered with. Only where a breach of the peace is immi-
nent should the action taken under Chapter VIII be of a prompt and
vigorous nature. To deprive any person of his liberty is a most serious
step to take, and it is hardly too much to say that every step in the
process should show extreme deliberation and care, and if a person
has to be arrested previous to inquiry, he should be given the option of re-
lease upon proper bail. Now comes the question whether in this case the
arrest by the police, the neglect to pass an order allowing bail being given,
and the recording of information while the accused was under detention,
have been of such a nature as to materially prejudice the accused. Upon
this point I have examined the case with very great anxiety. I find from
the record that on the 5th June, Daulat was clearly asked what cause he
had to show why he should not give sureties to be of good behaviour. It
is unfortunate that at this point the Magistrate did not clearly tell him
the amount of the bond he would be required to enter into.the time for which
it would be in force, and the number, character and class of sureties
which would be required. Had it been done the applicant might
have shown that a bond of Rs. 1,000 and two sureties, zemindars,
in the sum of Rs. 500 each, [48] were wholly out of proportion to

402



YII] in re PETITION OF ABDUL AZIZ 14 All. 49

kfe means. I think there can be no doubt that, so far as this point 1891
is concerned, Daulat has been prejudiced to an extent which I cannot .AUG. 31,

overtook. I do not find, however, that he was ignorant of the nature

of the proceedings taken against him, or that any difficulties were BBVI-
pufc In bis way of citing persons to depose to his character. He was given SIGNAL
till the 12th June, as a first opportunity, and till the 23rd June, as CRIMINAL 1

the second opportunity for producing evidence as to good character *

and to rebut that which had been given against him. Not less than 14 A. J5=*

six witnesses were cited by him, and not one of those six, if the record 11 A.W.N.

can be trusted, was able to say with confidence that Daulat was a man of (1891)1179,

good repute. On the contrary, two of them deposed to his repute being

distinctly bad. I have already remarked in previous cases that Magistrates

of the District must and should be trusted as to the evidencejon which they

act. Where the record shows that tBey have been neglectful or careless or

have been wanting in discretion I should be the first to interfere, but in

the present instance twelve witnesses have deliberately sworn that the

accused is an habitual thief and bad character. The evidence seems to have

been carefully taken, and I do trust the Magistrate when he puts on

record that he fully believes the information to be good and trustworthy. I

do not therefore propose to interfere in the Magistrate's order further than

to direct that Daulat execute a bond in the sum of Es. 250 and furnish two

sureties, zemindars, in the sum of Bs. 250 each, to be of good behaviour

for the space of one year, and that in default of giving such security he

suffer rigorous imprisonment until such security be given or the year

expires, whichever event first occur. It is much L to be regretted that the

language used by the District Magistrate in the explanation which he

furnished is not of a judicial and becoming nature. I allude particularly

to the paragraph marked "seventhly" in his memorandum. Explanations of

this kind are not intended as channels for criticism of the Court to which,

for this purpose, a District Magistrate is subordinate. They should he brief

and aim at pointing out facts which appear to have been overlooked by or

to have been misrepresented to the Judge, when they travel beyond this

they are impertinent and improper.



14 A. 49 = 11 A.W.N. (1891) 182.

[49] EEVISIONAL CEIMINAL.

Before Mr. Justice Knox.



IN THE MATTER OP THE PETITION OP ABDUL AZIZ.*

[25th September, 1891.]

S(curity to keep the feace Power of the Magistrate of a district to call upon a ferton
residing in another district to furnish stcurity Criminal Procedure Code, s. 107.

Section 107 of the Criminal Procedure Code does not empower a Magistrate to
issue process under it to a person not residing within his jurisdiction.

In the matter of the fetiiicn of Jai Parkash Lai (1) followed, Bajendro
Chunder Roy Chcicdhry (2) and Dinonath Mullick (3) approved.

[P., 23 B. 32 (35).]

THIS was a reference under s. 438 of the Code of Criminal Procedure
made by the Sessions Judge of Gorakhpur. The facts of the case, so far



* Criminal Revision No. 494 of 1881.
(1) 6 A. 26. (2) 11 C. 737, (3) 12 0. 133.

403



.H All. 50 INDIAN DECISIONS, NEW SERIES [Y(>1.

1891 as they are necessary for the purposes of this report, are contained in the
SEP. 25. referring order, which is as follows :

" " This is an application praying for revision of an order of Mr. Hose,

REVI- District Magistrate, directing applicant to find two sureties for Es. 1,000
SIGNAL each to keep the peace for one year.

CRIMINAL- " The applicant has property in the Gorakhpur district, but he is a

1* A M resident of mauza Nanduar, police station Mendhawal, in the Basti district,

A W lT an( * ^ e k' e ^ contention is based on the ruling of a Full Bench of the

MRQI\ 9 Allahabad High Court in the case of Jai Parkash Lai (l), where it was

81 decided that a Magistrate acting under s. 107, Criminal Procedure Code,

has no jurisdiction over a person residing beyond his local jurisdiction, and

this view of the law has also been adopted by the Calcutta High Court in

the cases of Bajendro Chunder Boy Cfowdhry (2) and Dinanath Mullick (3).

" Under these circumstances, without entering into the merits of the

case, I am compelled to find that the Magistrate's order was ultra vires,

and the record will be forwarded to the Hon'ble High Court with the

recommendation that the order of the Magistrate, dated the 16th June

1891, be set aside."

On this reference, the following order was made by Knox, J.

OEDEK.

KNOX, J. The order of the Magistrate was ultra vires and must
be set aside at once. The applicant and his sureties, if any, will be
released from any bond into which they may have entered.



it A, 50 = 11 A.W.N, (1891) 219,
[50] APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell and
Mr. Justice Knox.



BADHA PRASAD SINGH (Plaintiff) v. MATHURA CHAUBE (Defendant)*

[9th November, 1891.]

Act XII of 1881 (Nor th- Western Provinces Rent Act), s. 189 Act XIV of 1886 amend-
ing Act (Xll of 1881), s. 5" Bent payable by the tenant "Appeal.

The words " rent payable by the tenant " in 8. 189 of the North-Western Pro-
vinces Rent Act (XII of 1881) (as amended by Aot XIV of 1886) mean the rats of
rent payable by the tenant and not merely the actual amount of money wbioh
is due at any given time by the tenant to his landlord as rent.

Where a zemindar sued a tenant for rent of certain alluvial land, the amount
claimed not being above Rs, 100, and the tenant objected that there was a
custom in the village by which rent was paid in case of alluvial land only on the
oulturable portion, and that during some of the years in suit a less portion of the
land than that for which rent was claimed had been culturable :llcld that in
such a suit the rate of rent was in dispute and an appeal would therefore lie.
Radha Prasad Singh v. Pergash Rai (4) followed : Peyag Sahu v, Matadin (5)
overruled.

P., 16 A. 51 ; R , 21 A. 247.]

Second Appeal, No. 1030 of 1889, from a decree of F. W. Fox, Esq., District
Judge of Ghazipur, dated the 29th May 1889, confirming a decree of Maulvi Muham-
mad Wasi, Deputy Collector of Ghazipur, dated the 31st May 1888.

(1) 6 A. 26. (2) 11 C. 737. (3) 12 C, 133.

(4) 13 A, 193, (5) 10 A.W.N. (1890) 229,

404



YII] BADHA PRASAD SINGH V. MATHURA CHAUBE 14 All. 3$

THE facts of this case were as follows : 1891

The plaintiff-appellant suad in the Court of the Deputy Collector to NOV. 9.
recover from the defendant-respondent a sum of Es. 54-11-6, alleging the ~
same to be due as rant of certain land from 1292 to 1295 fasli together APPEL-
with interest on the sarns. The defendant pleaded limitation as to one LATE
year and as to the rest that the land in question was a diara, and accord- CIVIL.

ing to local custom rent was only payable on the culturabie portion,

which, he alleged, was during those years less than it was stated by the ** * 3 ^ =
plaintiff to be. The Deputy Collector found that the claim as to 1292 H A.W.N.
fasli was barred, that; the interest claimed was correct, and, allowing (1891) 219.
apparently the validity of the defendant's contention as to the area of the
land, decreed the plaintiff's claim in part. The plaintiff thereupon
appealed to the District Judge who dismissed the appeal on the ground
that " TheSvalue is below Rs. 100. There has been no determination of
proprietary right or of the rate of rent payable." The plaintiff then
[51J appealed to the High Court. The appeal came before Mahmood, J.,
who, in yiew of certain conflicting rulings of the Court, referred the case
to a Bench of three Judges.

The Hon'ble Mr. Spankie, for the appellant.

Mr. J. Simeon, for the respondent.

JUDGMENT.

EDGE, C.J., TYRRELL and KNOX, JJ. This appeal has arisen out
of a suic brought by a zemindar against his tenant to recover alleged
arrears of rent and interest amounting to Es. 54-11-6.

The third plea in defence in effect was that by the custom of the ilaka
and of the particular mzhal the tenant was entitled to a deduction from
the rent in respect of the land which became submerged or in which the
seed had not been germinated, and that, according to the custom, in order
to ascertain the rent payable the land had to be measured annually. We
need not trouble ourselves with the question as to whether in fact there
was such a custom or nod in conflict with the agreement between the zemin-
dar and his tenant. Those are matters yet to be decided, amongst others,
by the lower appellate Court, if an appeal lay to that Court. An appeal
was brought to the lower appellate Court and that appeal was dismissed by
that Courc, on the ground that the amount or value of the subject-matter
did not exceed Es. 100, and that; the rent payable by the tenant within
the meaning of s. 189 of Act XII of 1381, was not a matter in issue.
From that decree the plaintiff has brought this second appeal. It came
on to be haard before a Single Banch, and the Single Judge being pressed
with the contention that there was a conflict between a decision of Mr.
Justice Young [Payag Sahu and others v. Matadin and others (I)] and
a concurring judgment of ouc brother Straight and Mr. Justice Young
[Ratha Prasad Singh v. Pergash Bai (2)] referred the appeal to this
Bench. The case as presented to us involves two questions, one as to the
construction of s. 189 of Act XII of 1881, so far as the meaning of the
words "rent payable" is concerned ; the other, whether the "rent
payable" was a matter in dispute [52] and to be determined in this
suit within the meaning of that section. It has been held in the
case to which we have lastly referred that the words "rent payable"
in the section mean a rate of rent, and that is the view which we
take of the section. Incur opinion the rent payable in that section

(1) 10 A.W.N. (1890) 229. (2) 13 A. 193. ;

405



14 All. 53



INDIAN DECISIONS, NEW SERIES



[Vol.



1891

NOV 9.

APPEL-
LATE
CIVIL.

HA. 10 =
11 A.W.N.
(1891) 219.



means the rate of rent payable, and that is the view which was adopted
in an unreported judgment; to which one of us was a party along with
Mr. Justice Brodhurst. When s. 189 was amanded we do not think ifc
could have been the intention of tha Legislature fco have given an appeal
in those rent cases where the only question in dispute was how much of
an agreed rent had been paid or noc, if the matter in dispu'e was under
Bs. 100. In other words, tbey could nor, have intended, for example, that
there should be a series of appeals over a question as to whether the
tenant had in fact paid Eg. 16, Dortion of an admitted rent. It is a
wholly different matter where the question of the rate of rent is concerned.
The determination of the question of the rate of rent might affect
the parties as landlord and tenant for a great number of years, and
consequently the Legislature in our opinion intended that when the rate
of rent was in dispute and had to be decided there should ba an appeal.
In the case to which we first referred, Mr. Justice Young was clearly of
opinion that if the point had been merely what was the actual amount
which the tenant in that case had paid in liquidation of his rent, the
appeal would not be under 8. 189, but he seems to have put too narrow a
construction on the expression "rate of rent." He seems to have thought
that to ascertain the rate of rent it would never be necessary to ascertain
the area of the land. It appears to us that where the dispute is as to
the rate of rent that dispute may be raised in many different ways, as for
example, where the landlord said the rent payablewasBs.lOOandthetenant
said it was Bs. 50 a year, then there would be a dispute as to the rent
payable. It might in another case be necessary to ascertain the area in order
to find what was the rent payable or rate of rent for any particular year
under the terms of a particular contract, or according to the custom which
prevailed. Here, in our opinion, there was a dispute as to the rate of
rent. The tenant said that by reason of the custom the rent [53] payable
for those particular years was not the rent alleged by the zemindar.
The appeal in our judgment lay to the Court below.

We allow the appeal, set aside the decree below and remand the case
under s. 562 of the Code of Civil Procedure, and order the case to be
reinstated on the list of pending cases and disposed of according to law.
The costs of this appeal will abide the result.

Cause remanded.



14 A. 53 = 11 AW. N. (1891)222.

APPELLATE CIVIL.
Before Sir John Edge, Kt. t Ghief Justice, and Mr. Justice Tyrrell



CHAIN SUKH BAM AND ANOTHER (Plaintiffs] v. PARBATI AND

ANOTHER (Defendants) AND MANS A B^M AND ANOTHER (Plaintiffs] v.

SUNDAR AND OTHERS (Defendants].* [28th November, 1891.]

Hindu Law Custom Adoption of sistir'& soi Bohra Brahmans.

Amongst the Bohra Brahmans of the northern districts of the North- Western
Provinces, there exists a v*lid and legal custom in virtue of which a person of
that caste can adopt his sister's son.

CR., 17 A. 291 (310) (F B.) ; 19 B. 423 ; 110 P.R. 1906 = 31 P.L.R. 1907 = 59 P.W.R.



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 61 of 155)