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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 79 of 155)
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appeared and pleaded, inter alia, that the title-deeds in question were HA. 238 =
either never voluntarily delivered by the defendant Bam Kishen to the 12 A.W N.
plaintiff, but were wrongfully obtained by him, or if they were voluntarily (1892) 97.
delivered, such delivery did not [239] take place until after Bam Kishen had
been adjudicated an insolvent, and in either case their delivery could not
operate to create a charge or interest in favour of the plaintiff. The suit
was transferred to the Court of the District Judge of Mirzapur, and a
further issue was added as to whether in any case a delivery of title-deeds
in Calcutta could effectuate a valid mortgage of property in the North-
Wesfcern Provinces. The District Judge, holding on the main issue in the
case that the deposit of title-deeds with the plaintiff or his agents in
Calcutta in February 1888, was not proved, dismissed the plaintiff's claim.
The plaintiff thereupon appealed to the High Court.

Munshi Madho Prdsad and Munshi Jwaia Prasad, for the appellant.

The Hon. G. T. Spankie, Mr. A. Strachey and Mr. Greenway, for the


TYRRELL and KNOX, JJ. We come now to the legal arguments on
which the deoree dismissing the suit was supported. Mr. Strachey,
on behalf of the respondent, contended that the provisions of the third
paragraph of s. 59 of the Transfer of Property Act, 3882, do not apply to
a case, where, as in the present, the immoveable property covered by the
title-deeds is situate beyond the towns of Calcutta, Madras, Bombay, Ka-
rachi and Bangoon. The clause in question, he pressed upon us, was a
saving and not an enacting clause. He allowed that the only recorded
precedent which he could find on this question was against him. The
case was one heard by the Sadar Diwani Adalat at Madras. That Court,
it is true, refused to enforce a lien against property situate beyond the
town of Madras, of which property the title-deeds had been deposited as a
security for a loan by parties living and contracting within the local limits
of the Supreme Court of Madras. The principle which guided them to
the refusal was that " such a transaction was not recognized" in Indian
law, and they held that, the principle of the English law applicable
to a similar state of circumstances ought not to govern their deci-
sion. But this decision did not approve itself to their Lordships of the
[240] Privy Council who reversed the decision, on the ground that the
transaction was not one forbidden by law, and nob being so forbidden, to
refuse recognition was in the case before them a violation of justice,
equity and good conscience. The case will be found reported in 9 Moo,
I. A. at p. 307 and is known as the case of Varden Seth Sam v. Luck-
pathy Royjee Lalluh. The learned Counsel in dealing with this ruling
laid great stress upon the facts thab when the contract then under
consideration was entered into, viz., in the year 1851, there was no special

* [N.B. This judgment which is a reprint of what is given in the I. L. R does
not purport to be a complete judgment delivered in the case. It contains only so much
of the judgment as deals with the question of the law involved in the case. ED.]

All. 2*1



1892 lav? governing the transfer of immoveable property and no law requiring
MAT 10. transactions affecting it to be registered. He maintained that this faefe

had led their Lordships to the decision at which they arrived, and that il

APPEL- might be fairly argued that if there bad been in existence then, as now,
LATE laws regulating the transfer of property and the compulsory registration
CIVIL. f m ortgages affecting immoveable property their Lordships would have
given effect to the law and not have arrived at a contrary conclusion,
1$ A. 238= regard being had to the saving clause contained in s. 59.
12 A.W.N. Positive local law now exists enacting how such contracts can and

(1592) 97. should be made, and it is a matter of public policy that the provisions of
that law should be maintained and enforced. It would now be against
justice, equity and good conscience to give effect, to a mortgage which vio-
lated all registration rules and virtually defeated the provisions of the law.
In short, a decision validating such a transaction is "opposed to the policy
of the Registration Law ; ib would lead to evasion of stamp duty, and it is
at variance with the principle of making the system of transferring land,
as far as possible, a system of public transfer." This was the substance
of Mr. Strachey's contention.

Now, it seems clear and patent to us, from the precise and positive
language contained in s. 59 of the Act, that the Legislature was not only
aware of transactions of the kind with which we are dealing, but proceed-
ed of set deliberation to recognize the practice and to record to it the
full sanction of law. There is in the section not one word which forbids
effect to be given to an agreement [241] whereby parties express their
intention to create a lien on immoveable property by a mere deposit of the
title-deeds as security. Moreover, it seems to us that the question where
the property affected may be situate is not a matter which should affect
our decision. Had it been the intention of the law that transactions of
this kind should only affect immoveable property situate within the nar-
row circle of the Presidency Town, nothing would have been easier than
to give expression to such an intention. We find nothing in the Transfer
of Property Act or in the Registration Act of 1877 which forbids such a
transaction. It was beyond all doubt the intention of the contracting par-
ties in February 1888, that the deposit should operate as a hypothecation
or pledge, and it would be a violation of justice and equity under such
circumstances to refuse to give effect to ib. As regards the rest of
Mr. Strachey's contention, it seems to us that no greater violence is done to
the Registration Law in giving effect to an equitable mortgage in respect of
property in Benares than in respect of similar property in Calcutta. Our
attention was directed by Mr. Banerji, who appeared for the appellant, to
the case of Manekji Framji v. Rustomji Naserwanji Mittry (1) in which
upon another question the Bombay High Court recognised a deposit in
the town of Bombay of title-deeds affecting property situate outside the
limits of that Presidency Town as effecting a legal mortgage falling within
the provisions of s. 59 of Act IV of 1882.

This case is valuable as showing that the deposit of title-deeds of
property lying outside a Presidency Town operating as a legal mortgage
is recognized and given effect to in Presidency-Towns. We are, therefore,
unable to accede to Mr. Strachey's contention, and we agree wibh the
decision at which the lower Court arrived when dealing with this point.

The suit and the appeal are decreed with costs in both the Courts.

Appeal allowed.

(1) u B. 269,


14 A, 242 = 12 A.W.N. (1892) 83. 1892


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

Mr. Justice Knox. LATH


[7th June, 1892.] " \ " 2 =

\e A W ,ri ,

Criminal Procedure Cede, ss. 342, 366, 367 and 540 Sessions trial Accused person, (1892) 88
examinational Witnesses, treatment of, by Court Order of examination Judg-

Qestions put by the Court to an accused person under the provisions of s. 342
of the Code of Criminal Procedure, 1882, must ba strictly limited to the purpose
described in thai section, i.e , " of enabling the accused to explain any circum-
stances appearing in the evidence against him." The evidence referred to in
that section is tbo evidence already given at the trial at the time when the Court
puts questions to the accused.

It is not intended by s. 540 of the Code of Criminal Procedure, 1882, that a
Judge Shall reverse the order of a Sessions trial and call the witnesses summoned
for the defence before the case for the prosecution is closed.

It is illegal on the part of a Court to threaten witnesses with the penalties of
the law unless they are evidently giving wilfully false evidence or persistently
refusing to give evidence of iaots which must be within their knowledge.

A sentence which has been passed or a direction that an accused be set at
liberty which bas been given at a Sessions trial before the judgment required
by s. 367 of the Code of Criminal Procedure, J882, has been written is illegal.

[P., 27 M. 237 (238) = 2 Weir. 440 ; R , 19 A. 502 (503) ; 23 C. 502 (504) ; 1 Bom- Cr.
C. 55 (58) = 13 Bom. L.R. 635 (608) = 12 Cr. L J. 457 (453) = 11 Ind. Cis. 993
(994) ; 9 Gr, L.J. 56 (67) -4 N.L.R. 163.]

THE facts of this case are sufficiently stated in the judgment of the

Mr. W.M. Colvin, Mr. J. E. Howard, Mr. T. Conlan, Mr. A. Strachey
and Mr. R. Malcomson for the appellants.

The Public Prosecutor (the Hon. G. T. Spankie) for the Crown.


EDGE, C, J. (TYRRELL and KNOX, JJ., concurring). Hargohind Singh,
Eajwant Singh, Buddhu, and Jhulai were, on the 21st of January 1892,
"found guilty of the murder of one Sambhal Singh, and sentencid to death
by the Sessions Judge of Benares. They appealed, and their appeal was
heard by us on the 2nd, 3rd and 4th of this month. On the bearing of
the appeal Mr. Spankie, Public Prosecutor, appeared for the Crown, and
Mr. Strachey for the appellants. The main grounds upon which we
were asked to reverse the findings of the Sessions Judge were that,
[243] on the evidence on the record, the appellants were entitled to be
acquitted ; that the Sessions Judge bad during the course of the trial
committed such illegalities and irregularities as rendered the trial bad ;
and that his conduct of the trial was such as precluded a fair trial of the
appellants, and would, in case of a new trial being ordered, seriously damnify
the appellants. It was further alleged on behalf of the appellants that, at
the time when sentence of death was passed upon them, no written judgment
was in existence, and that the written judgment which now accompanies
the record, although signed by the Sessions Judge and bearing date the
21st of January 1892, was not written until after that date. It is hardly

Criminal Appeal, No. 96 of 1892.



1892 necessary to say that when a person is convicted of an offence under
JUNE 7. ^ Qe Idian Penal Code and haa a right of appeal to a High Court,

and exercises that right of appeal, he is entitled to allege, and in the

APPEL- best way he can to prove, that there was no valid trial according to
LATE ^ aw **hat khe Judge who tried him acted illegally and with material

P TUHNAT i rr egularity in the course of the trial ; that the Judge by his con-

'' duct of the trial precluded a fair trial being had ; that the Judge in

H A. 242= passing sentence had acted in violation of sections 366 and 367 of the

12 A.W.N. Code of Criminal Procedure, 1882 ; and that at the time when such sen-

" (1892) 837"te n ce was passed there was no record as required by law of the conviction
which must precede and ba the justification for the sentence. Further, it
need hardly be said that when such serious allegations are bona fide raised
by an appellant in a High Court, it is the duty of the High Court to
consider them, and however unpleasant it may be for the Sessions Judge
or for the Judges hearing the is the duty of the Judges who have
to decide the appeal to express their opinions as to the correctness or
otherwise of those allegations and as to the effect of them, if substantiated,
on the case. When in an appeal, whether it be in a civil or in a criminal
case, it appears to the Judges of a High Court that the Judge of a Court
subordinate to the High Court has acted illegally or irregularly in the case
under appeal, it is their duty, not only to the appellant in the particular
case, but in the interests of the Government and of the public, to speak
plainly and to point out in what manner the provisions of the law have
[244] been violated and its requirements disregarded. It is of greater
moment to the Government and the public, if possible, than to one accused
of a crime, that Criminal trials should be conducted regularly, decorously,
and in accordance with law and statutory procedure, and that no ground
for doubting the competency or the impartiality of the Judiciary should
be afforded by a departure on the part of a Sessions Judge or a Magistrate
from the rules of law, or the rules of procedure, which, as a Judicial
Officer, he is bound to follow, or by a High Court passing over in silence
and without comment such departures when they are material. High
Courts are responsible for the due administration of the law by the Courts
subordinate to them, the duty of superintendance having been imposed
upon them by their Letters Patent. Indeed, the Government of India in
one well-known case claimed the right to rabuke a High Court for the
non-performance, as it appeared to the Government of India, of that duty
of superintendance. It is necessary in this case to consider nob only the
evidence on the record, but the circumstances under which that evidence
was recorded at the Sessions trial, and the most material of the alleged
illegalities and irregularities connected with the trial.

There are in this case four parsons who say that they saw committed
the murder of which these appellants have been convicted. The most
material of those four witnesses was Amir Singh, who was a brother of
Sambhal Singh, who was alleged to have been murdered by these appel-
lants at the instigation of one of the zamindars of the village in which
Amir Singh and Sambhal Singh had been tenants, and of which many
years ago their family had been the zemindars. Not only as a witness
for the prosecution was Amir Singh of great importance, but his due and
regular examination and cross-examination were of almost vital importance
to the defence, as the case for the defence was that Amir Singh, and not
the accused was the person who had killed Sambhal Singh, and that Amir
Singh had murdered his brother with the object of making a false charge
of murder against the zemindars and their servants. The accused alleged



that the case for the prosecution was what is known in [24S] that part 1892
and the adjoining parts of these Provinces as a sesari-muqadama, of which JUNE 7.
each- of us have had examples before us before now, examples, if this be
one. as revolting as the present case. APPEL-

The accused men when before the committing Magistrate had not LATE
given him a list of witnesses whom they wished to have summoned on CRIM^^I,

their behalf for the Sessions trial. Each of the four accused bad, in

answer to a question put by the committing Magistrate, stated, that he 14 A. 242
would file a list of witnesses. The committing Magistrate had not cross- 12 A.W.N.
examined the accused as to the names of their intended witnesses or as (1892) 83.
to what those witnesses would be called to prove. Each of the accused
bad, in his statement which was recorded by the committing Magistrate
under section 364 of the Code of Criminal Procedure, 1882, clearly in-
dicated what his defence was and would be. In our opinion, the com-
mitting Magistrate acted with sound judicial judgment and in accordance
with law. The committing Magistrate would not, in our opinion, have
been justified, either in law or in common fairness, in. forcing the
accused to disclose either the names of their intended witnesses or what
those witnesses would ba called to prove. An accused is entitled when
before a committing Magistrate to reserve bis defence and to refuse to
disclose the names of the witnesses whom he intends to call at the
Sessions trial. We say this not only because the omission of the com-
mitting Magistrate to break the law in these respects has been made by
the Sessions Judge the occasion and the thema of severe comments upon
the Magistrate and his general conduct of the case when it was before
him comments which, in our opinion, were entirely unjustified and un-
called for but because that omission of the committing Magistrate has
been made by the Sessions Judge the pretext for procedure on his part
which, in our experience, is unprecedented in modern times in any part
of Her Majesty's dominions and was entirely illegal.

A list of witnesses for the defence was, subsequently to the
committal, filed in the Magistrate's Court. On the 22nd or 23rd
of December 1891, the Vakil for the accused presented to the Court
of the Sessions Judge a petition, asking that 11 persons therein
[216] named should be summoned as witnesses for the defence. The
prayer of that petition was complied with, and the persons named in the
petition were summoned as witnesses for the defence.

The Sessions trial commenced on the 6th of January 1892.

The accused had been committed for trial on charges under sections
304 and 148 of the Indian Penal Code. To those charges they pleaded not
guilty. We may here state that a great deal of evidence was produced at
the trial, tending to show that it was probable that there was no good
feeling between the zemindars and the family of Sambhal Singh.
With such evidence the record was overloaded. If there was much
oppression on the part of the zemindars, it was as likely to have
been the cause of the murder alleged by the defence as of that alleged
by the prosecution. The first witness called waa Amir Singh. He spoke
to the connection of his family with the village ; to alleged acts of oppres-
sion on the part of the zemindars ; to alleged false charges brought against
him or members of his family by the zemindars or their servants
including the accused Hargobind ; to the connection of the accused with
the zemindars and the village, but did not on the 6th of January utter
one word to connect the accused with the crimes with which they were
charged, nor did he on the 6th of January give any evidence that a crime



1892 had been committed. The sole allusion in his evidence on that day to the
JUNE 7. death of Sambhal Singh was contained in the following sentence : " My

brother, Sambhal Singh, was killed on the 13th of September." At the

APPEL- end of the record of the evidence given by Amir Singh on the 6th of January

LATE there is the following : " (Note. Further examination of this witness

p deferred, as he is tired of standing)." Whether Amir Singh was or was

' not tired of standing, the interests of justice required that his examination,

14 A. 242= cross-examination, and re-examination should be completed before any
12 A.W.R. other evidence as to what had occurred on the 13th of September 1891
(1692) 83. was taken on one side or the other.

The next witness called was Muhammad Zahurf a constable who
had been employed as a writer in the office of the District Superin-
[247]tendent of Police at Benares. He produced a petition which, on the
5th of September 1891, had been presented on behalf of the zemindars
of the village. That petition is of such importance that we give the
translation of it in extenso. The translation is as follows :

" The petitioner begs to state that all the three brothers, Amir Singh,
Sambhal Singh, and Har Naryan Singh, residents of mouza Gaharwarpur
police station, Baragaon, are very turbulent and quarrelsome persons,
and that Amir Singh has been punished for criminal offences on several
occasions ; but still they do not cease to do wrong and michief. Owing
to their failure to make payment, their entire property, cultivatory lands,
mills, trees, bamboo clumps, and dwelling-houses with dalan, &o., have
been sold at auction in execution of decree. On the 10th August
1891 Amir Singh was fined Es. 20 by the Criminal Court on a charge
of trespass and mischief. The petitioners are now going to remove the
mill sold at auction ; but there is a strong apprehension on their part of the
occurrence of riot and quarrel. Moreover, the aforesaid persons threa-
tened and said that they would beat Sambhal Singh, who is a very old
man and will get the zemindar and his karinda implicated, and it is likely
that they will commit the offence. Therefore it is prayed that an order
may be sent to the officials of the police station of Baragaon, directing
them to prevent the commission of the offence of riot and quarrel." By
that petition the zemindars, eight days before Sambhal Singh was killed,
informed the police that they had heard that a sesari muqadama would
be got up against them and their karinda. Muhammad Zahur proved
that he had put the petition at once before the Assistant Superintendent
of Police, whose order was : " Order. That if there was fear of vio-
lence, to put a stop to it." Muhammad Zahur stated that the papers
were posted the same day to the Sub-Inspector at Baragaon. The petition
was accompanied by a Mukhtarnama purporting to be signed by the
zemindars. The Sessions Judge having heard the evidence abovemen-
tioned of Amir Singh and of Muhammad Zahur, and having read the
petition, Mukhtarnama and order of [248] the Assistant Superintendent
of Police, framed a charge against the accused of wilful murder, under
section 302 of the Indian Penal Code, and read and explained that charge
to the four accused. To that charge they pleaded " not guilty."

The next witness called was Jawahir Lai, bead constable, who, on
the 13th of September 1891, was in charge of the Harahua outpost of the
Baragaon police station. His evidence showed that Gaharwarpur, the
village . where the murder is said to have been committed, was distant
about two miles from his outpost. His evidence is distinctly favourable
to the defence. He proved that at seven o'clock on the morning of the
13th September Hargobind Singh, who is said by the prosecution to have



taken an active part in the murder, came to the outpost at Harabua with 1892
one Bhukan Das, and asked him (Jawahir Lai) to go with them to JUNE 7.
Gaharwarpur, as their men were assembled and they were going to remove
the mill. Jawahir Lai refused to go, as he had not got any orders. APPEL-
Hargobind Singh and Bhukan Das told Jawahir Lai that they bad presented LATE
a petition for police assistance, and therefore expected him to go with them. CRIMINAL

Hargobind Singh and Bhukan Das left the outpost of Harahua, according to

Jawahir L*l, by 7 30 A.M. and at 8 A.M., or rather before than after 8 A.M. 14 1. 242 =
Prayag Singh, the son of Sambhal Singh came to the outpost and reported 12 A.W.N.
that a scene of violence had occurred and that his father had he jn killed. (1892) 88.
Jawahir Lai went at once to Gaharwarpur with Prayag Singh, and on the
road met Bahadur Singh and the accused, Rajwant Singh, Prayag Singh
told him (Jawahir Lai) who the two men were. Jawahir Lai told the two
men to go with him, as Prayag Singh was complaining of them. When
passing Karoma, Ja'wabir Lai directed the two men to stay at the Karoma
chhaoni until he should send for them, and they obeyed his orders.
Jawahir Lai went on to Gaharwarpur, and when he arrived there it was
near nine o'clock A.M. At Gaharwarpur Jawahir Lai found Amir Singh
standing by the corpse of Sambhal Singh. There was dead silence in the
village, and although the village contained about one hundred inhabitants,
not a man, excepting Amir Singh, was to be seen there. At this period of
the trial an Inspector [249] of Police named Bhairo Shankarand abeadcon-
stable named Bija Narayan Singh were interposed to produce and prove a
plan of Gaharwarpur ; and then Jawahir Lai was recalled and examined on
the plan and as to the position of the corpse, some signs of digging, the be-
ginning of the construction of an embankment, the condition and position of
a cane-press, the position of a sugar-boiling house, of the buildings of the
deceased man, of a mango grove and a well, and as to whether the construc-
tion of the embankment would not interfere with a footway from the houses
and with the access to the well, and such like matter. Jawahir Lai said :
'' I found Sambhal Singh quite dead. I should say from the appearance
that he had been dead an hourt>r an hour and a half. The blood had
ceased to flow. The blood had flowed from four or five wounds. On the
ground there was a clot of blood about the size of the palm of a man's

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 79 of 155)