D. E. Cranenburgh.

A handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] online

. (page 131 of 166)
Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 131 of 166)
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purchased a ryoti tenure within the limits of the accused's zentindari, and
the accused disliked his being there, and apparently, from what the witnesses
say, they intimated their dislike of that to them. Two witnesses say that on
that day they were at the house of the accused, when a peada of theirs came
and told them that the complainant, notwithstanding what they had done, was
still in the place, and was still taking away the paddy on the land, upon which
the accused said that they would beat him, and set fire to his house. Assum*
ing that to be true, the question is, whether that is a threat within the mean-
ing of the section.

The section which defines the offence is s. 503, and it is in these words :
" Whoever threatens another with any injury to his person, reputation, or pro«-
perty, or to the person or reputation uf any one in whom that person is interest-
ed, with intent to cause alarm to that person, or to cause that person to do any
act which he is not legally bound to do, or to omit to do any act which that
person is legally entitled to do, as the means of avoiding the execution of such
threat, commits criminal intimidation."

It is clear that the gist of the offence, as defined in that section, is the effect
which the threat is intended to have upon the mind of the person threatened,
and it is equally clear that before it can have any effect upon his mind it must
be either made to him by the person threatening, or communicated to him in
some way. In this particular case there is no suggestion that the threat was
made to the person threatened. All that happened was, that in the presencoi
of some persons the accused used the words I have quoted in Uietr House. In

LL. iLidaL 110.



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CHVNpfSa



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874



INDIAN LA W REPORTS.



1888.



GUNGA

ChOnder
Sen

GOUR

Chunder
Ban IKY A,
15 Cal. 671.



one sense those words amount to a very bad threat, but there is no evidence
on the face of them, and there is no other evidence, that they intended ihat ihe
words should be communicated to the complainant for the purpose of influ-
encing his mind. It seems to us that the evidence in the case falls far short
of establishing the offence defined by this section, which is, in our opinion, a
threat communicated or uttered with the intention of its being commanicated
to the person threatened for the purpose of influencing that man's mind. In ihis
case there is nothing whatever to show that it was the intention of the accu5^
that the threat should be communicated to the complainant. The cowipUinant
himself was called, and he does not say that he ever heard this pariicu ar threat
Though he speaks of a threat uttered on some other occasion, he does not say
that the threat which is the subject of this charge was ever commnnicaied to
him, or that he ever heard it. Under these circumstances, we think that there
is no evidence of an offence having been committed under this section, and
that this rule must be made absolute.



T. A. P.



Rule absolute.



1888.

May 18.

15 Cal. 71a.



CRIMINAL REFERENCE.

Be/ore Mr. Justice Wilson and Mr, Justice Tottenham.

DHIKU AND ANOTHER (CoMPLAiNANTs) V. DENO NATH DEB alias DINU

AND ANOTHER (AcCUSED).^

Appeal in Criminal Case — Cattle Trespass Act (I, of i8yr), s. 22 — Illegal seieun

of cattle.

No appeal lies from an order under s. 22 of Act I. of 1871, awarding compensatiofi
for illegal seizure of cattle.

Queen-Empress v. Raja Lakshma^ followed.*

The accused were charged in this case with the wrongful seizure of some
cattle belonging to the complainants, and under s. 22 of the Cattle Trespass
Act (I. of 1 87 1) were fined by the Honorary Magistrate of Sylhet — Denonaih
Rs. 20, and Cobra Rs. 1 5, which fines were ordered to be paid to the complain-
ants as compensation.

The accused appealed to the Deputy Commissioner, by whom the finding
and sentence of the Magistrate were set aside.

The case was submitted by the Sessions Judge of Sylhet to the High Court
under s. 438 of the Criminal Procedure Code, on the ground that the order of
the Deputy Commissioner had been made without jurisdiction, as he had no
power to entertain the appeal. The Judge referred to the case of Queen-Em-
press V. Raja Lakshma? in which it was held that no appeal lay in such a case.

No one appeared on the refei*ence.

The judgment of the Court (Wilson and Tottenham JJ.) was asfollows:—
VVe think that the ruling of the High Court of Bombay in Queen- Em press
V. Raja Lakshma? to which the Sessions Judge refers, is one ihjii should be fol-
lowed, and that no appeal lay to the Deputy Commissioner. We set aside his
order, and direct that the order of the first Court be restored.



' Criminal Reference, No. 135 of iSaS, made by R. H. Greaves, Esq., Sessions Judge
of Sylhet, dated the 28th of May 188^, against the order passed by G. Stevenson, Esq.,
Deputy Commissioner of Sylhet, dated the 6th of February 1888.

« I. L. R., 10 Bom. 330.

' S«e also /» ft Gunesh Perskad, 3 N. W. aoo.



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CALCUTTA SERIES. VOL, XV. 875

CRIMINAL MOTION.

Before Mr, Justice O' Kinealy and Mr. Justice Rampini. """ .

In the matter of the Petition of DIN TARINI DEBI.i »888.

Criminal Procedure Code (Act X. of 1882), s, 50;^ — " Purdah-nashin" woman^^ '

Examination by commission — Personal appearance in Court, 15 Cal. 775,

A Hindu lady having been summoned as a witness on behalf of an accused applied
under s. 503 of the Code of Criminal Procedure to be examined by commission on the
ground {inter alia) that she was a " purdah-nashin." and that her enforced appearance in
a Criminal Court would entail a forfeiture of her dignity and position in Hindu society.

Held that such application was properly made under the section, and that, under the
circumstances of the case, the order prayed for could be made.

The facts upon which the rule was issued are as follow : —

The Chief Presidency Magistrate having framed a charge of attempting
to cheat against four persons arraigned before him for having committed that
offence, one of the four persons so accused applied for the issue of a subpoena
to one Din Tarini Debi, a Brahmini widow, as a witness on his behalf. The
subpoena being duly issued was serxed upon the lady on the 7th of August ;
she thereupon on the 8th August applied to the Magistrate for an order dis-
pensing with her attendance in his Court, and for the issue of a commission
to take her evidence under s. 503 of the Code of Criminal Procedure. In sup-
port of this application it was alleged on her behalf that she was a purdah-'
nashin lady not in the habit of appearing in public, that she resided in her na-
tive village of Goverdanga at a distance of 37 miles from Calcutta, and that her
attendance at the Court of the Chief Presidency Magistrate would therefore
entail upon her " inconvenience" of a kind contemplated by the provisions of
the section on which her application was based. It was further alleged on be-
half of the applicant that, in the event of the Magistrate not feeling himself
justified in granting such application, she was ready and willing to travel to
Calcutta, and submit herself for examination as a witness in a house she would
secure for that purpose if the Magistrate would be pleased to attend at such
house for the taking of her evidence on a day to be hereafter fixed by him.
The Magistrate refused to make the order prayed for, or entertain the altera
native proposal made.

On the 9th of August the applicant moved the High Court (Wilson and
Rampini, JJ.) under the provisions of s. 435 of the Code of Criminal Procedure
for a rule to be issued upon the Chief Presidency Magistrate to show cause
vrhy the order for the issue of a commission for the purpose of taking her evi-
dence under s. 503 of the Code of Criminal Procedure should not be granted.
The material averments in the petition on which the motion was made were
as follow : —

That your petitioner is a resident of Goverdanga in the sub-division of Baraset
in the district of the 24-Pergunnahs, which is about 37 miles distant from the Court
of the said Chief Presidency Magistrate of Calcutta.

That your peliiioner is a Hindu purdah-nashin lady of rank, living on income
derived from her own zemindari and other sources exceeding the sum of Rs. 5,000,
and that your petitioner is connected with other respectable zemindars, and that,
according to Hindu manners and customs, your petitioner never appears t)efore
the public.

* Criminal Miscellaneous Motion, No. 31 of 1888, against the order of summons issu-
ed by F, 7, Marsden, Esq., Chief Presidency Magistrate of Calcutta, dated the 3rd of August
tS88,



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Vj6 INDIAN La W reports.

i8S8. That your petitioner \\\% hever up to this time attended any Court of Justice

' anywhere, either civil or criminal, to give evidence or for other purposes, and ihat»



In the if your petiiio.ier be compelled to appear in the said Presidency Magistrate's Court,

MATTER OP she will for ever lose her dignity and position in society.

THfi Petition That your petitioner, should she be forced to appear in a Criminal Court of a

OP Din Chief Presidency Magistrate of Calcutta, will suffer degradation in the eyes of her

TarinI bBBi ^^^ associates and in the society to which she belongs, of a kind which nothing;'

Cal 77q ' y**"*" petitioner shall hereafter do will ever remove or evt- n modify. In running the

• n> ^^y^ ^£ experiencing such degradation by a literal compliance with the order con-

tained in the summons issued by the Court of the Chief Presidency Magistrate, a

true copy of which is hereto appended and marked A, your petitioner sub nits that

«he, as she alleges through no fault of her own, but entirely through her misfortune,

will suffer such inconvenience, as is specified in s. 503 of the Criminal Procedure

Code, as will entitle her to the reliei to be hereafter asked for in the prayer attached

to the petition.

Upon that application the High Court (Wilson and Rahpini, JJ.) on
J(th August issuecl the following rule : —

In this case, as far as we can judge, it does seem to be ^ hardship that this
l^dy should be required to give evidence in Court. The tietter course would be to
issue a rule upon the Magistrate to show cause, which he will do by a letter to us,
why it should not be ordered that this lady shpuld noi be required to appear in Court,
We intimate to the Magistrate that we think he should not enforce fier attendance
under the subpoena, provided she does what she says she is willing to do, that rs,
cbnies to Calcutta, arid gives her evidence in such suitable place, either within the
Court-building or not, under such circumstances, to be arranged by the Magistrate,
as to seciire that she may be examined in the presence of the accused, and at the
same time not be exposed to the inconvenience of coming into the public Court-room.

We woukj ask the Magistrate to let us know what arran^ments he proposes
to make in this matter, and if, as we have no doubt wiH be the caie, those arrange-
ments seem to us suitable, no further order will be necessary.

Th6 rule now came on to be heard.

The Advocate-General (Sir Charles Paul) for the Crown.

Mr. Reily, Dr. Guru Doss Bauer ji, and. Baboo Sureniro Naih Iktss tor
thd petitipner.

The Chief Presidency Magistrate, in a letter addressed to the High Court,
<|ontended that the Code of Criminal Procedure did not contenipLate a Magis-
ti^a^^ being called upon to take the evidence of a witness under commission or
Qthe^r\vise other than in his Court ; that the expense and inconvenience which
WQi^id be caused should any innovation of this rule be permitted by the High
Court would be very great, and would encourage innumerable applications of
a siipilar kind being made in the Criminal Courts. The Magistrate further
alleged that the petitioner apparently was frequently in the habit of travelling
Ijeiween Goverda,nea and Calcutta, that she was not a lady of exalted rank,
g(nd that; she had been granted the privilege of attending Coart and giving
her evidence in a palki — a practice invariably Allowed ia the Coiirt of the
Magistrate.

The Advoeate^General, — S. 503 of the Code of Criminal Procedure ap-
plies to all people, whether males or females, irrespective of rank or position;
it may apply to the condition of a witness as inchidfed within the term *• cir-
cumstances of the case," but does not relate to the privileges and immunities
of witnesses, and therefore does not apply to a purdah-nQshin woman. Her
case m^st depend on the general law under xyhich she <;iaina^ e^emptk)!!.
This exemption has not been allowed within the term of living memory eiiter*



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CALCUTTA SERIES. VOL. XV. 877

bv the High Court in its criminal jurisdiciion or in ihe Police Court. It hai , 18S8.

always been deemed a necessary condition 10 a criminal trial that the Court — r

should hear the evidence of the witness, and no inconvenience worth considera- ^ ^"^
tion has been supposed to apply to the case of a woman coming into a Court ^''^'''^^^0^
of Justice in a palki and giving her evidence therefrom The petitioner avers ^"^ Pktitiom
that the fact of her being forced into entering a Criminal Court would be of Din
degrading to her position ; the Court will be careful not to encouras^e this belief Tarini Debi,
by any undue regard for her susceptibilities. The Court should not encourage «5 Cal. 775.
such a belief or notion, as numbers of highly respectable native ladies have
given evidence in Court from palkis.

Mr. Reily for the petitioner. — The word " inconvenience " has already
been held to apply to the case of a purdah-nashin lady who can furnish sub-
stantial reasons for her reluctance to appear in a Criminal Court — see /n the
ma Her 0/ ihe Petiiion of Farid-un Nissa ;^ also Jn the matter of the Petition
of Hurroo Soondery} This reluctance may be a matter of mere prejudice, but
is nevertheless a sentiment on which native society as at present constituted .sets
great store. The Legislature has expressly recognized the existence of this feel-
ing hy giving immunity to certain persons from appearing in Civil Courts. The
petitioner in this case is the widow of a Brahmin, a lady of some means, and in
order to give proof of the genuineness of her objections is willing to pay the
costs which may be incurred in connection with the issue of the commission.

The judgment of the High Court (O' Kinealy and Rampini, JJ.) was as
follows : —

This was an application made by Srimati Din Tarini Debi, asking that she
might be examined by commission and not examined on oath in Court under
s. 503 of the Code. In her application she sets forth that she was a purdah-
nashin and a Brahmini, connected with a family of acknowledged respectabi-
lity and possessed of considerable property, and she prayed that what had been
done in some previous ca.ses might be done in her case, namely, that she
might not be compelled to appear in Court. On that application a rule was
issued to show cause, and cause has been shown by the Presidency Magistrate
of Calcutta and by the Crown. The Crown objects, because the lady in her
petition said that it was a degradation for her to appear in a public Court, and
the learned Advocate-General argued that it would be intolerable to allow such
a principle to receive the sanction of this Court. No doubt, the phrase is ob-
jectionable, and it would be impossible, as the learned Advocate-General says,
to admit the fact that merely appearing in Court is a degradation. Yet we do
not think that disposes of the case.

There is no doubt that such applications have been granted under s. 503,
and granted on the principle that in matters of procedure the customs and habits
of the people should be taken into consideration. The learned Presidency
Magistrate has shown cause by saying that it is the invariable custom for
purdah-nashin ladies to be examined in palkis in Court, but that is not exact-
ly the question. The question is whether a commission ever issued in regard
to purdah-nashin ladies in his Court. Of that he makes no mention. He also
says that this lady travels from Goverdanga to Calcutta, but he does not say
that she does so publicly. So far therefore as cause has been shown by the
learned Magistrate, it does not seem that the facts staled by him affect the
reasons upon which such commissions have been granted. Looking to the



» I. L. R., s All. 93. M. L. R., 4 Cal. 20.



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878 INDIAN LA W REPORTS.

188S. nature of the application and to the fact that the ladj has actnallf taken a honse

— j in Calcutta not far from the Magistrate's vJourt. where she can be examined;

In THE jj^^j j^Q possible inconvenience can arise to any person; and further that the

MATTER OP la^y ^j^g volunteered to pay the expenses of the commission, and even the

THE Petition fjefence do not require her to be examined in open Court, we can see no reason

OF Din why ihis rule should not be enforced, and we make it absolute.
Tarini Debi, ^^ further direct by consent that the petitioner shall be bound to pay all

15 Cal. 775. ^r,sts consequent on the issue of the commission in Calcutta, which the learned
Magistrate in the Court below shall deem reasonable and proper.

J. V. W. Rule made absolute.



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[ 879 ]

VOLUME XVI.



CRIMINAL MOTION.

Before Mr. Justice Wilson and Mr, Justice Rampini,

In the matter of the Petition of PARBUTTY CHARAN AlCH. isss.

PARBUTTY CHARAN AlCH v. QUEEN-EMPRESS.^ Auf^. 6.



Criminal Procedure Code, ss. 134^ 144— Penal Code, s, 188— Disobeying order of ,6 Cal. 9.
Public Servant — Trader at Hdt — Order prohibiting holding of Hdt,

A District Magistrate, by an order made under s. 144 of the Criminal Procedure Code,
after stating that it appeared that one " G C S has recently established a h4tat S in the
vicinity of K, an old-established hit, and held it on the same days, and that in conse-
quence of the establishment of the new hit. and the endeavours made to induce or force
people to frequent the new hit, instead of the old one, a serious breach of the peace or
riots are imminent," ordered ** that the said G C S and all other persons abstain from
holding such hit" on those days. The. order was duly made and promulgated, but not
strictly in accordance with s. 134 of the Code, and the orders of Government made there-
under. Notwithstanding the order one PC A was found exposing goods for sale as a
trader at the hit on one of the prohibited days, and he was thereupon charged with dis-
obeying the order of the Magistrate, and convicted of an offence under s. 1S8 of the Penal
Coae. Held that the conviction was bad, as P C A did not come within the description
of the persons intended by the order to be prohibited from ''holding' the hit, which refer-
red to "holding" as owner or manager, not as a trader.

Held also, that the terms of s. 134 of the Code, and the notification made by Govern-
ment thereunder as to promulgation and issue of an order, are directory, but an omission
to follow strictly such direction, though it is an irregularity, does not invalidate the order:
Mhere therefore it is shown that the order has been brought to the actual knowledge of the
person sought to be affected by it, such omission does not prevent the case coming within
9. 188 of the Penal Code.

The appellant Parbutty Charan Aich was charged with having disobeyed
an order made by the Magistrate of Backergunge, and with having in conse-
quence been guilty of an offence under s. 188 of ihe Penal Code.

It appeared that one Gobinda Chunder Sahu had established a hit in a
village called Singhrakaii in the Distrift of Backergunge. The Magistrate of
the Distrid, finding that such a hit interfered with the previously established
hit in the neighbouring village of Krishnagunge, and that a breach of the
peace was thereby imminent, issued the following order: ** Whereas it appears
from the report of Sub-Inspector Prosonno Coomar Mookerjee, and from the
affidavit of Baikanto Chunder Gangooly filed herewith, that Gobinda Chunder
Sahu has recently established a new hit at Singhrakati in the vicinity of Krishna-
gunge hit, an old established hit, and held it on the same days, viz., Tues-
days and Saturdays, and that, in consequence of the establishment of the new
hit, and the endeavours made to induce or force people to frequent the new
hit instead of the old one, a serious breach of the peace or riots are imminent,
it is hereby ordered that the said Gobinda Chunder Sahu and all other persons
abstain from holding such hit, or any hit whatever, near or within the hit at
Krishnagunge on any Tuesday or Saturday. This order is made under s. 144
of the Criminal Procedure Code, and will remain in force two months."

» Criminal Motion, No. 238 of 1888, against the order passed by % Posford, Esq.,
Judge of Backergunge, dated 21st June 1888, modifying the order pass^ by F. A. Hossein,
Deputy Magittxate of Patuakhally, dated the lath May 1888.



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88o



INDIAN LA W REPORTS.



1888.



Parbutty
Charan

AlCH
V.

Queen*
Empress,
16 Cat. 9.



The order was not served personally on Parbutly Charan Aich, nor was it
duly promulgated in ihe h4t by beat of drum, or as provided for by s. 134 of ihe
Code and by Government notification made under that section. Notwithstand-
ing this order, the hit at Singhrakati still continued to be held, and on Satur-
day. 2 1st January, Purbutiy Charan Aich» being found exposing goods for sale
in ihe hit, was charged under s. 188 of the Penal Code with disobeying the
above order, and on conviction was sentenced by the Deputy Magistrate to
rigorous imprisonment for three months — a sentence which was altered on
appeal to the Sessions Judge to seven days' imprisonment and a fine of Rs. 30.
The Judge said : *' As to Parbutty Charan Aich I see no reason to doubt the
propriety of ihe conviction ; but I do not find any satisfactory proof of his
being more than a trader who comes to the hit and offers goods for sale there.
He does not appear to be one of the hit proprietors or managers, though he
is said to have been a iadbirkarJ" Parbutly Charan Aich appealed to the High
Court, on the grounds that ihe order of the Magistrate prohibiting the hat was
not promulgated in the manner provided by law ; that the order being there-
fore bad, the disobedience of such an order was not punishable under s. 188
of the Penal Code ; and that the act imputed 10 him did not constitute a dis-
obedience of the order.

Baboo Umbtca Churn Bose and Baboo Baihanio Nath Doss for the appel-
lant.

The Officiating Deputy Legal Remembrancer (Mr. Beehy) for the Crown.

The judgment of the Court (Wilson and Rampini, J J.) was as follows: —

Wilson, J. — The conviction in this case is under s. 188 of the lodian
Penal Code, which says that whoever, knowing that, by an order proroalgaied
by a public servant lawfully empowered to promulgate such order, he is direct-
ed to abstain fiom a certain act, disobeys such direction, shall be liable to cer-
tain punishment. Now, the order which the accused in the present case was
charged with disobeying was an order by the District Magistrate under s. 144
of the Code of Criminal Procedure. It was an order made with relation to a
hit. It appears that there was an old-established hit, and that certain persons,
acting for, or with, one Gobinda Charan Sahu, opened a new hit in the vici-
nity of the old one. and held it on the same days. This action, in the opinion
of the Magistrate, made a serious breach of the peace imminent ; and therefore
having made the necessary inquiries he passed this order* [After reading the
order,^ His Lordship continued] :

It has been found that, notwithstanding that order, the new hit was never-
theless held on Tuesdays and Saturdays ; and the present accused has been
convicted of disobeying that order. The fact found is that he sold goods m
the hit, not that he was a proprietor of the hit, or was one of those who pro-
moted or managed or had any control of it, but simply that as a trader he sold
goods at the hit.

Two points have been raised before us. The first is, whether there was
any such service or promulgation of the Magistrate's order as to bring the case
within s. 188. With regard to that it would appear that the mode of service
was not in accordance with the Criminal Procedure Code, because s. 144 says
that a Magistrate may, by a written order slating the material facts of the case,



Online LibraryD. E. CranenburghA handbook of criminal cases containing a verbatim reprint of all criminal cases reported in vols. I. to XVI., Calcutta series, I. L. R. [1876-1889] → online text (page 131 of 166)