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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 88 of 155)
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Where a pardon has been tendered to any person in connection with an offence,
he should not be tried for any alleged breach of the conditions of his pardon or
for any offence connected with that for which he has received pardon until the
tiral of the principal offence, and of any offence connected therewith, has been
completed.

[DilS., 20 A. 529 (532) = 18 A. W.N. 152; 29 A. 24 = 3 A.L.J. 615 (616) = A.W.N. (1906)
258 ; F., 23 B. 493 (494) ; 27 C. 137 (139) ; 32 M. 173 = 9 Or. L.J. 571 (574) =
2 Ind. Gas. 343 (344) ; 13 C.P.L.R. 123 ; R., 22 C. 50 (68) ; 14 Bur. L.R.
306 = 7 Or. L. J. 245 = U.B.R. 1S>07, 4th Qr., Or. P.O. 7 (10).]

THIS was a reference under s. 437 of the Code of Criminal Procedure,
1882, made by the Sessions Judge of Jhansi. The facts of the case suffi-
ciently appear from the referring order, which is as follows :

" I have, on the trial of Queen-Empress v. Nanhe, Muthu and
Musammat Sukhrani, charged under s. 302. Indian Penal Code, with the
murder of Mohan Lai at Daun, on the 2nd of June last, examined the
record of the case of Queen-Eunpress v. Sudra, committed for trial on the
charge under s. 411, Indian Penal Code, of having received or retained pos-
session of a bond stolen from Mohan Lai in connection with the murder,
and find that on the 20th of June, Mr. Sturt tendered a pardon to Sudra,
under g. 337, Criminal Procedure Code (not s. 327, Criminal Procedure
Code, as stated), on the condition that he made a ' full confession of the
whole of the circumstances within his knowledge relating to the murder
of Mohan Lai.' Notwithstanding this the Magistrate has committed Sudra
for trial. I may remark that I can nowhere find any record of Sudra's
having accepted the conditional tender of pardon, but as he was subse-
quently examined as a witness against Brijlal and Badli, charged also with,
the murder of Mohan Lai, it must be assumed that Sudra did accept it.

" S. 337, Criminal Procedure Code, provides that every person accept-
ing a pardon under this section shall be examined as a witness in
the case, although it was not when the charges against Nanhe, &c.,,
were under inquiry by the Magistrate that the tender of pardon
was made and accepted ; it was in the case of the offence of murder-
[337] ing Mohan Lai that it was made. So that Sudra was in the position
of a witness, and the tender of conditional pardon still subsisted while
* Criminal Reference No. G03 of 1891.



582



VII] QUEEN-EMPRESS v. SUDRA 14 All. 338

the case relating to the murder of Mohan Lai was pending. His commit- 1891

meat on the charge was therefore illegal, and in my opinion the record of DEC. il,

his casj must be submitted to the High Court that the commitment may

be quashed. I may add that as the trial of Nauhe, &o., on the charge of REVI-

murder has now been concluded, there is no objection to the Magistrate SIGNAL

now acting in accordance with the provisions of s. 339, Criminal Procedure CRIMINAL,

Code. Recently I submitted a somewhat similar case for the orders of

the High Court, and the commitment was quashed ; but before submitting 1* * 336=

the record in the present case, a copy of this proceeding will be sent to the *2 A.W.N.

Magistrate for any explanation he may desire to offer. The explanation (1892) 21.

should be submitted to this Court within four days.

******

" The Deputy Magistrate has returned an explanation in referene to
the above order, but;, so far as it is intelligible, I do not think it affords any
reason for not sending up the records relating to the case of Sudra for the
orders of the High Court;. What is important to bear in mind is that the
charge against Sudra is of having received or retained a bond or bonds
supposed to have been stolen from Mohan Lai at or about the time of his
murder. The Deputy Magistrate, when tendering the pardon, gives as
his reason for doing so that ' from the facts of the money bonds found in
his possession having been the property of Mohan Lai, the murdered man,
and known to have been in his possession at the time of his murder, there
is strong presumption that the accused was himself directly or in directly
concerned in the murder, or at least of his being privy to it.' I think the
pardon must necessarily be held to include a pardon of whatever offence
the accused may bave"committed arising out of, or even in any way con-
nected with, Mohan Lai's murder. The fact that the record of the case
against Sudra, who was mixed up only with the charge of murder against
Brijlal and Badli, who were not committed for trial, was different from
the record of the case against Nanhe, &o.. does not prevent the whole of
[338] the proceedings being in the case of the murder of Mohan Lah In
my opinion the Deputy Magistrate had no authority to withdraw the
pardon tendered to Sudra so long as the charge of murder against any
person was pending. I accordingly submit all the records of the two cases
for such orders as the Hon'bleHigh Court may consider necessary."

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

ORDER.

One Sudra received from the Deputy Commissioner of Jhansi an
offer of pardon in the case of a murder committed upon the person of
one Mohan Lai on the 2nd of June 1891. The tender of pardon was made
to him with the view of obtaining his evidence, and it was made presum-
ably on the usual conditions. Apparently the tender was accepted, and
in a trial in connection with this murder held against two persons,
Sudra was examined as a witness. It further appears that it was
found necessary to charge other persons, namely, Nanhe, Muthu and
Musammab Sukhrani, with the same offence of murder committed
upon Mohan Lai. Before the case against these latter persons had
been heard, Sudra, who had originally been arrested on a charge under
s.411, Indian Penal Code, was committed for trial to the Sessions
Judge of Jhansi. The Sessions Judge of Jhansi has referred the commit-
ment to this Court with a view of its being quashed, and the ground
upon which he refers it is that until Sudra had been examined as a witness
in the whole case or cases connected with the murder in respect of which

583



14 All. 339 INDIAN DECISIONS, NEW SERIES

1891 tender of pardon had been made to him, he could not be tried for the
DEC. 11 offence in respect of which the pardon was tendered, or for any other offence
of which he appears to have been guilty in connection with the same
EEVI- matter. The whole question turns upon the interpretation which is to
SIGNAL be placed upon the words in s. 337, Criminal Procedure Code, namely,
CRIMINAL. " everv person accepting a tender under this section shall be examined as
a witness in the case." It is, in my opinion, the intention of the law that
14 A. 336= a person to whom a tender of pardon has been made in connection with
12 A.W.N. the offence should not be tried for an alleged breach of the conditions
(1892) 21, upon which the pardon was tendered until the original case has been fully
heard [339] and determined. There may arise cases in which owing to the
absconding of offenders the trial at an early date of an approver who
had not complied with tbe conditions on which the tender was made
appears necessary or expedient, and 1 am not prepared to say that
in such cases the result of the trial of the principal is always to be waited
for. The point does not arise for determination, and I do not determine
it. But where, as in the present instance, no suoh difficulty occurred,
the provisions of s. 337 of the Criminal Procedure Code should have
been strictly complied with, and in every case connected with the offence,
namely, the murder of Mohan Lai, Sudra should have been examined
as a witness, and until he had been so examined, his trial for any offence
in connection with that murder should not have taken place. I accord-
ingly quash the commitment and return the record. The District
Magistrate of Jhansi can of course take any steps open to him in law for
the further trial of Sudra if such trial appear necessary in the interests
of public justice.



141. 339 = 12 A.W.N. (1892) 12.

APPELLATE CIVIL.
Before Mr. Justice Mahmood.



EAM SUKH DAS AND ANOTHER (Defendants) v. TOTA BAM (Plaintift)*

[5th January, 1892.]
Cross-decrees Set off Civil Procedure Code, $. 246.

Where a decree-bolder holds a deoree against several persons jointly, one of
whom holds a deoree against him singly, both decrees being executable in the
same Court, it is competent to the holder of the joint deoree, under the provi-
sions of s. 246 of the Code of Civil Procedure, to plead suoh deoree in answer to
an application for execution of the deoree against him singly.

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

Mr. D. Banerji, for the appellants.
Mr. Niblett, for the respondent.

JUDGMENT.

[340] MAHMOOD, J. The plaintiff-respondent, Tota Ram, obtained
a deoree for Rs. 192-4-0 against Chunni and four other persons. On the
other hand Chunni obtained a decree for Rs. 43-14-0 against the above-
named Tota Ram. Both these decrees were capable of execution in the

* Second Appeal No. 203 of 1891, from a deoree of Babu Abinash Chandar Banerji,
Subordinate Judge of Agra, dated the 18th December 1890, reversing a deoree of Babn
Baij*Nath Prasad, Munsif of Mahaban, dated the 14th June 1890.

584



YII] BECHAN RAI V. NAND KISHORE RAI If All. 341

Court of the Munsif of Mababan, Tofca Eam's decree having been 1892
transferred to that Court. JAN, 5.

Before Tota Ram could take any action to execute his decree, his
judgment-debtor sold the decree to Earn Sukh, one of the defendants- APPEL-
appellants, on the 30th of July, 1888, and upon Tota Eam's endeavouring LATE
to execute his decree he was met by objections by the said Earn 3ukh, QlVIL

and those objections prevailed on the 20th of January, 1889. Tota Earn '

then instituted the present suit to establish his right to execute his decree 1* A- 339 =
against Chunni's decree in the hands of the defendant Earn Sukh. 12 A.W.N.

The first Court dismissed the suit, holding it to be barred by s. 244 (1892) 12.
of the Code of Civil Procedure, but the lower appellate Court has given
sufficient reasons for holding that the section does not apply, and to this
finding no objection is taken here before me on the other side.

The main ground upon which Mr. Diuarka Nath Banerji has rested
bis argument on behalf of the appellants is that, although under s. 233 of
the Code of Civil Procedure, Earn Sukh must be taken to have purchased
Chunni's decree subject to such equities as Tota Earn had against such
decree, yet, inasmuch as Tota Eam's decree was not solely against Chunni,
but also jointly against four others, therefore no such equities arose as
would enable the two decrees to be dealt with under s. 246 of the Code of
Civil Procedure. In support of his contention the learned Counsel has
invited my attention to illustration (&) to the section.

I am of opinion that the learned Subordinate Judge has arrived at
correct conclusions. It is true that Tota Eam's decree was against
Chunni and four others jointly, but since the decree of Chunni was solely
against Tota Earn there seems no reason why Tota Earn should not be
entitled to resist the execution of Chunni's decree by reason of his larger
decree above mentioned. The [341] illustration contemplates cases where
there are judgment- creditors and not cases where the sole judgment-debtor
is the sole creditor of another decree. I think this distinction is recognizable,
and in Bury Doyal Guho v. Din Doyal Guho (1), it was actually ruled that a
judgment-debtor may get-off against the amount of the decree against him
the amount of a decree which he has obtained against the decree-holder
and other persons.

I think the effect of the learned Subordinate Judge's decree in this
case is consistent with the view which I have expressed. I therefore
dismiss the appeal with costs.

Appeal dismissed.



1* A. 341 = 12 A.W.N. (1892) 18.

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



BECHAN EAI AND OTHERS (Defendants') v. NAND KISHORE EAI

(Plaintiff).* [8th January, 1892.]
Conditional sale Wajib'Ul-are Pre-fmplion,

The pre-emptional rights of the parties to a deed of conditional sale cannot be
affected by a wajib-ul-arz prepared subsequently to the execution of the deed of

* Second Appeal No. 1691 of 1888 from a decree of Rai Lalta Prasad, Subordinate
Judge of Ghazipur, dated the 13th August, 1889, modifying a decree of Maulvi Bayyid
Zain-ul-abdin. Munsif of Korantadih, dated the 9th January 1888.

(1) 9 C. 479.

585
A VII 74



14 All. 342



INDIAN DECISIONS, NEW SERIES



[Vol.



1898

JAN. 8.

APPEL-
LATE
CIVIL.

11 A. 311 =

12 A.W.N.

(1892) 18.



conditional sale, but prior to the sale becoming absolute, they not being parties
to the wajib-ul-arz and the wzjibul-d'e not apparently indicating any pre-
existing custom of; pre-emption in the village. Raghubir Singh v. Nandu
(1) distinguished.



[D , 24 A, 493.]

THE facts of this case, so far as they are necessary for the purposes
of this report-, appear from the judgment of Edge, C. J.

Munshi Jwala Prasad and Munshi Gobind Prasad, for the appellants.
Pandit Sundar Lai, for the respondent.

JUDGMENT.

EDGE, C,J. This was a pre-emption suit brought under a wajib-ul-
arz in respect of a sale of a share within the village. The sale arose in
this way. The shareholder in the village executed in favour of the present
vendees two deeds of conditional sale. Sub- [342] sequently to the execution
of the deeds and to the making of the contracts embodied in the deeds a
wajib-ul-arz was prepared, agreed to and sanctioned in the village. After
the making of the wajib-ul-arz the mortgage by conditional sale became,
on operation of the agreement contained in the deeds of conditional sale
and the default of the mortgagor, an absolute sale. It is in respect of this
absolute sale that this pre-emption suit has been brought. According to
the plaint the plaintiff-respondent here, alleged that by tha wajib-ul-arz
it was agreed that there should be a right of pre-emption in the case of
any shareholder wishing to sell, mortgage, &c., his share. The plaintiff
did not rely upon any custom of pre-emption existing in the village at the
time of the execution of the deeds of conditional sale. He simply relied
upon an agreement contained in a wajib-ul-arz subsequent in date to the
deeds of conditional sale, by which the right of pro eruption was created
in the village. It appears to me that no subsequent village contract to
which the parties to the conditional sale-deeds were not agreeing parties
could alter the rights of the conditional vendee under his deeds. Those
rights came into existence on the making of tha deeds of conditional sale.
The change of the transaction from one of mortgage to one of absolute sale
merely followed as the leagal result of events contemplated by the contract
of conditional sale. We were referred to the case of Raghubir Singh v.
Nandu Singh (1). With regard to that case, I may point out that there
not only was a wajib ul-arz agreement relied upon, but the plaintiff also
relied upon a village custom. A wajib-ul-arz may not only be evidence
of the existence of village custom at the date the wajib-ul-arz, but it
may also possibly afford evidence that such custom was a pre-existing
custom in the village. How far these considerations account for the deci-
sion of the case I need not consider. In the present case, I am clearly of
opinion that the subsequent wajib-ul-arz agreement cannot affect the legal
and equitable rights which the conditional vendee has by the agreement
contained in the deeds of conditional sale acquired. I would allow the
appeal and dismiss the suit with costs in all the Courts.

[343] KNOX, J. I also concur in decreeing the appeal. In fact, I
should have had no difficulty in arriving at this decision, but for a refer-
ence which was pressed upon us to the judgment in Raghubir Singh v.
Nundu Singh (1), to which I was a party. Upon refernce to the notes
taken when that case was argued, I am of opinion that there was this
clear distinction between that case and the case now before us, that in the



(1)11 A.W.N. (1891) 134.
586



VII] HAM MANOHAR MISB V. LAL BEHARI MISR 14 All. 344

prior case the claim tor pre-emotion proceeded not merely upon the wajib- 1892
ul-arz, bat also upon a custom alleged in the plaint and borne out by the JAN. 8.
language used in the waji-ul-arz. In the present case no attempt has

been made to base the claim upon custom, and I have not been referred APPKL-
to any clause in the wajib-ul-arz which indicated that any custom upon LATE
this point existed prior to the completion of the wajib -ul-arz, which was QlVIL

admittedly completed in the village between the time the deeds of condi-

tional sale were executed between the parties and afterwards became 14 A. 341^

a complete sale. 12 A.W.N.

Appeal decreed. (1892) 18.



14 A. 343 = 12 A.W.N. (1892) 18

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



BAM MANOHAR MISR (Defendant) v. LAL BEHARI MISR AND ANOTHER
(Plaintiffs)* [27th January, 1892.]

Civil Procedure Code, s. 514 Arbitration Power of Court to extend time for making
award.

A Court has power to act under s. 514 of the Code of Civil Procedure at any
time before the award is actually made, whether the time previously limited for
making the award has expired or not. Raja H*r Narain Singh v. Chaudhrain
Bhagwant Kuar (1) referred to.

[R., 2 N.L.R. 81 (85) ; U.B.B. (18971901), Vol. II, 24 ; Not Appl., 7 lad. Gas. 595
(598) =4 8.L.R. 26.]

THE facts of the case sufficiently appear from the judgment of
the Court.

Mr. J.E. Howard, for the appellant.

The Hon'ble Mr. Spankie for the respondents.

JUDGMENT.

EDGE, C.J., and TYRRELL, J. This is an appeal from a decree
passed in accordance with an award. The learned Counsel for the [344]
appellant desired to argue that the arbitrator had been guilty of miscon-
duct. Taat point was decided against his client by the Court below, and
is not apparently open to him in appeal here. Section 522 of the Code
of Civil Procedure enacts how and when the decree is to be drawn up,
and further enacts : " No appeal shall lie from such decree except in so
far as the decree is in excess of, or not in "accordance with, the award."
It is not contended that the decree in question is either in excess of or not
in accordance with the award. The other contentions put before us on
behalf of the appellant are, that no time was fixed by the Court originally
for the making of the award ; that no order under s. 508 of the Code of
Civil Procedure was drawn up ; that the Judge wrongly exercised his dis-
cretion in extending the time for the making of the award, and that some
of the orders of extension-were made after the time previously limited for
making the award had expired. We have gone through the different peti-
tions and orders in this case. On the 16bh of July 1886, there is the order



' Second Appeal No. 873 of 1889 from a decree of J.C. Leupoult, Esq., 'District
Judge of Ghazipur, dated the 15th April 1889, confirming a decree of Babu Mrittoojoy
Mukerji, Subordinate Judge of Ghazipur, dated the 29th March 1884.

(1) 18 I.A. 55 = 13 A. 300.

587



14 All. 345



INDIAN DECISIONS, NEW SERIES



[Yol.



J892 of the Court referring the matter to arbitration, and, as we read th.vt order,

JAN. 27. ifc fixed the 16bh of August 1886 for the award to be returned to the Court.

There was a further order made on the 21st of July 1886. It appears that

APPEL- the arbitrator went to Gaya. It appears also that the Judge went on leave ;

LATE and it appears by the proceedings that at the desire of the respective

CIVIL Paries the matter was suspended during the time of the Judge's absence

' on leave. When he came back from leave he made an order directing that

ii A. 348= a formal order should be drawn up, and the papers forwarded to the arbi-
12 A.W.N. trators. We must presume that a formal order was drawn up in accord-
*1892) 18, ance with the Judge's direction and forwarded to the arbitrators. We may
further infer that that was done from the fact that subsequently there was
an application for extension of time, and from the fact that the arbitrator
himself petitioned for a further extension of time, alleging in that petition
that he had been ill with fever. Now on the 17th of December 1886 the
last order extending the time was made. By that order the time was
extended to the 17th of January 1887. The award was made on the llth
of January 1887, consequently it was made within the extended time given
by the Judge. [345] In the case of Raja Ear Narain Singh v. Chaudhrain
Bhagwant Kuar (1), their Lordships of the Privy Council held that under
a. 514 of the Code of Civil Procedure, a Judge has power from time to time
to extend the time for making an award. In the case which was before
them one of the orders extending the time was made some days after
the time which had been fixed by the previous order had elapsed ; so that
having regard to the facts of the case which was before their Lordships
of the Privy Council, we must infer that their Lordships were of opinion
that a Judge has power at any time before the award is actually made to
act under s. 514 of the Code of Civil Procedure. The award in that case
was upset on another ground. Now we have come to the conclusion on
the facts appearing in the record of this case that the proceedings were
not ultra vires, and that the award having been made within the time
which was given by the order of the 17th of December 1886 cannot be
impeached on any of the grounds to which we have been referred.
There was another ground taken by the Counsel for the appellant to which
we shall now refer. It was that his client had revoked the agreement to
refer, and had done so before the award was made, and at a time when
there was no order extending the time for the making of the award.
That attempted revocation was put before the Court by means of an
application, which was apparently rejected. Now we are of opinion that
neither party to this reference had any power to revoke the agreement to
refer without the consent of the Court. There are grounds upon which
the order of reference may be amended or set aside, but when once a
-Court has passed its order of reference, as it did here in the appeal which
was before it passed that order on the agreement of the parties, we are of
opinion that neither party had power to revoke except by consent of the
Court and under an order of the Court. We dismiss this appeal with
costs.

Appeal dismissed.



(1) 18I.A. 55-13 A. 300.
588



YII] QUEEN-EMPRESS V. BASHIR KHAN 14 All. 347

14 1.346 = 12 A.W N. (1892) 19, 18 g 2

EEVISIONAL CRIMINAL. JAN. 0.

Before Mr. Justice Straight. REVI-



[346] QUEEN-EMPRESS y. BASHIK KHAN AND ANOTHER.'*'
[30th January, 1892.]

Criminal Procedure Code, s. 192 Transfer Procedure to be followed where a cass has 12 m'w u
been tranftriei after the evidence for the prosecution has bten recorded. A. W.N.

(1892) 19.
A Magistrate to whose Court a oase under s. 355 of the Indian Penal Code has

been transferred at a stage when all the evidence for the prosecution had been
taken, did not re-summon the witnesses for the prosecution but proceeded to act
on their evidence as if it had been taken before himself : Held that whether
such procedure amounted to an irregularity or illegality or not, it was sufficiently
prejudicial to tbe accused to warrant the conviction being quashed.

[R., 15C.P.LR. 66 (68) ; 12 C.W.N. 140 (144) = 6 Cr. L.J. 434; D., 35 C. 457
(462) = 7 C.L.J, 498 = 7 Cr. L.J. 220 = 12 C.W.N. 416.]

THE facts of this case, so far as they ara necessary for the purposes
of this report, appear from tbe judgment of Straight, J.
Mr. Fateh Chand, for the petitioners.
The Government Pleader (Munshi Ram Prasad), for the Crown.

JUDGMENT.

STRAIGHT, J. In this case charges were preferred before the
Honorary Magisrates of Agra against the two petitioners for an offence
under section 355 of the Indian Penal Code, that is to say, of committing
an assault with the intent to dishonor a person, that person being one
Sukhdeo Prasad, the complainant. The case was pending before tbe
Honorary Magistrates, when an application was put in by the accused to
have it transferred from that Bench to the Court of a First-class Magistrate,
and accordingly an order of transfar was made to the Court of Muham-
mad Isa Khan, a First-class Magistrate of the Agra District. At the time



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 88 of 155)