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

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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 157 of 166)
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Junadiotion (contd.) —

Abdul Wahab v. Chandia. I. L. R., 13 CaL

305 [see p. 708 of this book].

7. Jurisdiction — Tributary Mehals —
Kheonjur — '* Local Area'*— Code of Crimi-
nal Procedure (Act X. of 1882J, ss. 182 and
S3 1.] The Penal Code and Criminal Proce-
dure Code have no application to the Tri-
butary Mehal of Kheonjur, which is on pre-
cisely the same footing in that respect as
Mohurbhunj. Certain persons, officers of
the Maharajah of Kheonjur, one of whom
was a resident of the Cuttack district, and
the others residents of Kheonjur, were
charged before the Deputy Ma^^strate of
Taj pore with certain offences under the Pe-
nal Code. They were convicted, and on
appeal to the Sessions Judge the conviction
was upheld. It was found by the Sessions
Judge that the scene of the occurrence which
gave rise to the charges was within the Ter-
ritory of Kheonjur. Held that the -Deputy
Magistrate and Sessions Judge had no juris-
diction to try the case, and that the convic-
tion must be set aside. Held further that
ss. 182 and 531 of the Criminal Procedure
Code had no application to the case. The
words " local area" used in s. 182 only ap-
ply to a ** local area" over which the Crimi-
nal Procedure Code applies, and not to a
local area in a foreign country or in other
portions of the British Empire to which the
Code has no application ; and similarly s.
531 only refers to districts, divisions, sub-
divisions, and local areas governed by the
Code of Criminal Procedure. — In the Mat-
ter of Bichitranund Dass and others v.
Bhu£but Perai ; In the Matter of Bichitra-
nund Dass and others v. Dukhaijana, I. L.
R., 16 Cal. 667 [see p. 953 of this book].

Jurisdiction -

Over European British Subject See
European British Subject.

Of Civil as opposed to Military Court. See
Mutiny Act.

Of High Court to punish Summarily.
See Contempt of Court.

Of High Court to Quash Sanction. See
Sanction to Prosecute, 13, 14.

Of Sessions Judge. See Sanctiok to
Prosecute, 15.

To Make Order for Protection of Proper-
ty. See Public Nuisance, 5.

Jurisdiction of High Court—

I. Jurisdiction of High Court — Act
VL of 1835— Act XX^^' of 1869, s. 9—24
and 2$ Vic, c. 67, s. 23 ; c. 104, ss. g, 11,
13^3 and 4 Will. IV., c. 85-— 16 and 17
Vic, c 95 — 17 and 18 Vic, c 77 — Delega-
tion, Power of] By Aa XXII. of l^
certain districts were removed from the juris-

Digitized by




Jarisdiotion of High Court (ctd.)-^

diction of the High Court, and by s. 5 the
administration of civil and criminal justice
was vested in such officers as the Lieutenant-
Governor of Bengal should appoint. By s.
9 the Lieutenant-Governor was empowered
to extend all or any of the provisions of the
Aft to the Cossyah and Jynteeah Hills. By
a notification in the Calcutta Gaeette of 4th
October 1871, the Lieutenant-Governor ex-
tended the provisions of the A6t to the Cos-
syah and Jynteeah Hills, and directed that
the Commissioner of Assam should exercise
the powers of the High Court in the civil
and criminal cases triable in the Courts of
that district. The two prisoners were tried
for murder in April 1876, and were, on con-
viction, sentenced by the Chief Commis-
sioner of Assam to transportation for life.
On appeal by the prisoners to the High
Court, held by the majority of a Full Bench
(Garth, C.J., Macpherson and Pontifex, JJ.,
dissenting) that the High Court has juris-
diction to entertain the appeal, and such
jurisdiction was not taken away by A6t XXIL
of 1869. Per Curiam. — The Governor-Gene-
ral in Council had power by legislation to
remove the districts from the jurisdiction of
the High Court. Per Jackson, Ainslie, and
Markby, JJ. (Kemp, f., concurring). — The
Governor-General in Council had no power
to delegate his legislative functions to the
Lieutenant-Governor of Bengal in the way
he had done in X&. XXH. of 1869. The
power of delegation cannot be considered as
validated by any long course of practice, nor
as sanctioned by the tacit recognition of
Parliament; A6t XXIL of 1869 is therefore
so far invalid Per Macpherson, J. (Ponti-
fex, J., concurring). — Such delegation is no-
where expressly prohibited, and does not
bring the A6t under any of the restrictive
provisions of the Indian Council's Aft. Per
Garth, C.J., and Macpherson, J. (Pontifex, J.,
concurring). — The power of delegation now
questioned had been exercised in many cases
for a series of years previous to the passing
of the Indian Council's Aft, and that Aft
(the framers of which must have been cog-
nizant of such course of practice) must be
taken as impliedly approving of and sanc-
tioning such practice, which it would other-
wise have declared illegal. Per Garth, C.J.,
Jackson, Markby, and Ainslie, J T. (Kemp, J.,
concurring). — ^The High Court has power to
question the validity of the legislative acts
of the Governor-(jeneral in (founcil. Per
Macpherson, J. (Pontifex, J., concurring). —
The High Court has no such power if satis-
fied that the aft is not within any of the pro-
hibitions of the Indian Council's Aft. — In
the Matter of the Petition of Burah and Book
Sineh, 1. L. R., 3 Cal. 63 [see p. 67 of this

Jurisdiotion of High Court {ctd.)-^
2. Jurisdiction of High Court — Legis-
lative Power of Governor-General in Council
— Delegation — Conditional legislation — 24
and 2$ Vic, c. 104— Act XXIL of i86g, s. p.]
By the terms of the Act 24 and 25 Vic, c.
104, the exercise of jurisdiction in any part
of Her Majesty's Indian territories by the
High Courts was meant to be subject to, and
not exclusive of, the general legislative power
of the Governor- General in Council. An
exercise of legislative authority by the Gov-
ernor- (general in Council, whereby any place
or territory is removed from the jurisdiction
of the High Courts, is one expressly contem-
plated by the Stat. 24 and 25 Vic, c 104,
and by the Letters Patent issued under that
Statute. By the 9th section of Act XXIL
of 1869, passed by the Governor- General of
India in Council, the Lieutenant-Governor
of Bengal was empowered, from time to time,
to extend, mutatis mutandis, to the Jaintia,
Naga, and Khasi Hills, the provisions con-
tained in other sections of the Act, whereby
the administration of civil and criminal jus-
tice within the district called the CJaro Hills
was, from a date to be fixed by the said Lieu-
tenant-Ciovernor, to be withdrawn from ♦.he
jurisdiction of the Courts of civil and crimi-
nal judicature constituted by the Regulations
of the Bengal Code and the Acts of the Le-
gislature of British India, and to be vested
in such officers as the Lieutenant-Governor
might appoint. Held by a majority of the
Calcutta High Court that, as the Indian Le-
gislature was to be regarded as an agent or
delegate acting under a mandate from the
Imperial Parliament, which must in all cases
be executed directly by itself, the above pro-
visions, purporting to authorize the Lieu-
tenant-Governor of Bengal to extend Act
XXIL of 1869 to the Jaintia, Naga, and
Khasi Hills, since they involved a delegation
of legislative power, were void and of no
eflFect. Held by the Judicial Committee of
the Privy Council that the decision of the
majority of the High Court was erroneous,
and rested on a nlistaken view of the powers
of the Indian Legislature. The Legislature
has powers expressly limited by the Act of
the Parliament which created it, but has,
when acting within those limits, plenary
powers of legislation as large and of the same
nature as those of Parliament itself. When
plenary powers of legislation exist as to par-
ticular subjects, whether in an Iniperial or
Provincial Legislature, they may be well ex-
ercised either absolutely or conditionally.
Legislation, conditional on the use of parti-
cular powers, or on the exercise of a limited
discretion, entrusted by the Legislature to
persons in whom it places confidence, is not
uncommon, and, in many circumstances,
may be highly convenient. — Empress v.

Digitized by




Jnrisdiotioii of High Court (c^.)—

Burah, L. L. R., 4 Cat. 172 [see p. 166 of
this book].

3. Jurisdiction of High Court — Tribu-
tary Mehals — Mohurbhunj — British India.']
A British subject, residing in Midnapore, in
Bengal, was charged before the Maharaja of
Mohurbhunj with having committed the of-
fence of defamation in Mohurbhunj in the
Tributary Mehals. On an application made
by the accused to the Magistrate of Midna-
pore, objecting to be tried by the Raja of
Mohurbhunj, the Commissioner of Cuttack,
who was also Superintendent of the Tribu-
tary Mehals, directed that the case should
be transferred to Midnapore, and tried by
the Magistrate of that district, who had the
power of an Assistant Superintendent of the
Tributary Mehals. The accused, while being
tried, moved the High Court to set aside the
proceedings at Midnapore^ on the ground
that, the offence not having been committed
within the district, the Magistrate was act-
ing without jurisdiction. Held that the pro-
ceedings were without jurisdiction. Per Cun-
ningham,]. — The Tributary Mehals are now,
as they were in 1874, a portion of British
India, which the Government of India has
been pleased to exempt from the ordinary law
and jurisdiction of the Courts, and to govern
by means of special officials and enactments.
Whatever may be the powers of Government
as to Mohurbhunj, those powers do not ex-
tend to empowering the legally constituted
tribunals of a British district to follow in
that district, and in the case of residents in
it, anv procedure, and to exercise any other
jurisdiction than that created by the law. Per
Prinsep, J. — The territory of Mohurbhunj is
a part of British India, out at present not
subject to any laws not specially extended to
it. The Tributary Mehals being British In-
dia, and being excluded from the operation
of all the laws in force in British India, un-
less expressly extended to them, the orders
of Government conferring powers on parti-
cular officers over criminsil offences commit-
ted within those Mehals are ultra vires. —
Hursee Mahapatro v. Dinobundro Patro, I.
L. R., 7 Cal. 523 [see p. 357 of this book].

4. Jurisdiction of High Court — Ap~
peal — Revision — Offence committed out of
British India.] The High Court hasno pow-
er, either by way of appeal or revision, to
interfere with a sentence passed by the Su-
perintendent of the Tributary Mehals when
exercising ju risdiction over offences com-
mitted in Mohurbhunj, a place not situated
within the limits of British India. Empress
V. Keshub Mohajun (1. L. R., 8 Cal. 918) and
Hursee Mahapatro v. Dinabundhu Patro (I.
L. R, 7 Cal. 523) referred to. — Em press v.
Hurro Kole, I. L. R., 9 Cal. 2&^\c^ p. 470

of this bookj.

Juror refiismg to act—

See Public Nuisancr, 8.


1. ]\3fCt^-Criminal Procedure Code (Act
X. of 1872), s. 20 3 — High Court, Pamer cf—
Jury, Verdict of acquittal by,] Where the
]ury acquitted the prisoners on the char^^
framed, but found certain facts which
amounted to another offence, and omitted to
convict the prisoners of that offence, as pro-
vided by s. 457 of the Criminal Procedore
Code, held that the High Court could, oa
the case coming before them under s. 263 o€
the Criminal Procedure Code, find the pri-
soners guilty of such offence. — Empress ».
Harai Mirdha and Umed Sardar. 1. L. R., 3
Cal. 189 [see p. 115 of this book].

2. Jury— Crimimj/ Procedure Code (Act
X. of 1872), s. 263— Verdict — Disagreeutent
in finding of Jurors — Dissent of Judge from
verdict of majority — High Court, P&ner ef.]
An accused struck a woman, carrying an in-
fant in her arms, violently over head and
shoulders. One of the blows fell on the
child's head, causing death. Held that the
accused had committed hurt on the io^nt
under circumstances of sufficient aggravatioa
to bring the offence within the definition of
grievous hurt. Where a jury are not ona-
nimous in their finding, and the Judge dis-
sents from the opinions expressed by them.
on the case being referred under s. 263 of
Act X. of 1872, the High Court is compe-
tent to find the prisoner guilty, notwithstazkd*
ing an acquittal by the majority of the jury.
It is the duty of a Judge in sending up a case
to the High Court under ss. 263, 4^ of the
Criminal Procedure Code, when he disagrees
with a verdict of acquittal, to state the of-
fence which, in his opinion, has been com-
mitted. — Empress v. Sahae Rae, I. L. R., 3
Cal. 623 [see p. 136 of this book].

3. Jury — Assessors — Trial by Jury of a
case properly triable with assessors — Appeal
on f acts— A^ VIII. of 1871, s. 80 — Criminal
Procedure Code (Aa X. of 1872), s. ^JJ.]
/>fr Maclean, J. (Mitter, J., dubitante).— The
trial by a jury of an offence triable with as-
sessors is not invalid on that ground, but an
accused who would have been entitled to an
appeal on the facts, if the case had been
tried with assessors, is not debarred from that
right merely by the fact that the trial by jory
is not invalid. — Empress v. Mohim Chundo'
Rai, I. L. R., 3 Cal. 765 [see p. 151 of this

4. J U RY — Verdict on offence proved, though
not independently charged — Unaniwums wer-
dict — Dissent of Judge — Procedure in suck
cases — Criminal Procedure Code (AS X. ef
1872), ss. 263, 457— Penal Code (AB XLV.
of j86o), ss, 149, 3^5] The accused ^

Digitized by




Jury (contd.)-^

chamd under s. 149, coupled with s. 325, of
the Fenal Code, with, while being members
of an unlawful assembly, committing griev-
ous hurt. The jury disbelieved the evidence
as to the unlawful assembly, but unanimously
found two of the accused guilty of grievous
hurt under s. 325. Held that such verdict
was, under s. 457 of the Code of Criminal
Procedure, legally sustainable, although that
offence did not form the subject of a separate
charge. S. 457 enables a verdict to be given
on some of the facts which are a component
part of the original charge, provided that
those facts constitute a minor offence. It is
only in a case where the jury are not unani-
mous that a Court may require them to retire
for further consideration. Where a verdict
is unanimous, it must be received by the Judge,
unless contrary to law. Where a Judge dis-
sents from the unanimous finding of a jury
given in accordance with the law, the only
procedure open to him to follow is that laid
down in the fifth clause of s. 263 of the Code
of Criminal Procedure. — Government of
Bengal v. Mahaddi. I. L. R., 5 Cal. 87 1 [see
p. 242 of this book].

5. Jury — Criminal Procedure Code (Act
X, of 1872J, s. 263 — Discretion of Court —
Verdict of jury — Forgery and abetment — Ac^
quiiial by jury — Disagreement by Judge —
PrinHples guiding the Court's discretion un^
der s. 263 of the Criminal Procedure Code
(Act X, of 1872) - " Fraudulently and dis-
honestly uttering " — Intention — Inference of
fraud. "^ Notwithstanding the large discre-
tionary powers vested in the High Court
under s. 263 of Aft X. of 1872, the Court
will adhere generally to the principle of the
Courts in England, ifiB., that the Court will
not set aside the verdift of a jury unless it
be perverse and patently wrong, or may
have been induced by the error of the Judge;
and when the Court is asked to do so on the
ground that the verdift is against the weight
of evidence, the question is, not whether the
learned Judge who tried the case was or was
not dissatisfied with the verdift, or whether
he would have come to the same conclusion
as the jury, but whether the verdift was
such as reasonable men ought to have come
to. Where a person, in the course of an ac-
tion brought against him to eain possession
of a property, used a forged document for
the purpose of supporting his title, though
there may be no necessity for the use of it,
such a user is clearly fraudulent. A general
intention to defraud, without the intention
of causing wrongful gain to one person or
wrongful loss to another, would, if proved,
be sufficient to support a conviction; and
such an intention is a necessary inference
which the jury should be directed to draw,

Jury {contd.y-

if they are satisfied that the accused has
uttered a forged document as a true one,
meaning it to be taken as such, and knowing
it to be forged Under s. 26^ of the Code
of Criminal Procedure, a Court is authorized
to ask the jury such questions as are neces-
sary to ascertain what their verdift really
is ; but where the verdift, although perhaps
erroneous, is not ambiguous, it is the duty
of the Judge to record it without further
question. — Empress v. Dhunum Kazee, I. L.
R., 9 Cal. 53 [see p. 458 of this book].

6. J u RV — Trial by — Jurisdiction of Judge
— Evidence of approver — Corroboration —
Confession of one of several prisoners."] It is
open to a Judge in charging the jury to ex-
press his opinion as to the effect of a certain
portion of the evidence; but he should always
be careful to add that it is for the jury to
form their own opinion. Exact correspond-
ence in details of several statements made
by an approver in the course of a trial is
not corroborative evidence such as is ordi-
narily required to make it safe to convict a
particular prisoner. Confessions of prisoners
are not, as against their fellow-prisoners
who were not present when the confessions
were made, such corroborative evidence of
the statement of an approver as would jus-
tify the conviction of the other prisoners
thereon. Confessions of two of several
accused persons made in the absence of
the others are of no weight as against the
latter. Such confessions, as well as the state-
ments of approvers, are always regarded as
tainted ; because, from the position occupied
by the persons making them, they are not
entitled to the same weight as the evidence
of ordinary witnesses. An accused person
is not bound to account for his movements
at or about the time an offence was commit-
ted, unless there has been given legal evi-
dence sufficiently ^*imf/aa> to convict him
of the offence. — Empress v. Bepin Biswas,
I. L. R., loCal. 970 [see p. 564 of this book].

7. Jury — Misdirection — S. 26 of the
Charter of 1865 — Charge, Misunderstanding
of] Mere misunderstanding on the part 3i
bystanders in Court, or Counsel engaged in
a case, of expressions used by a Judge in
charging a jury (where it appears that the
expressions used by the Judge were such as
ought to have been understood by any rea-
sonable man, having regard to what was prov-
ed in the case, and what was said to the jury
afterwards), will not constitute misdirection.
— Empress v. Shib Chunder Mitter, I. L. R.,
10 Cal. 1079 [^c P- 5^ of this book].

8. J URY — Misdirection of—Burmak Courts'
Act of 1S75, *. 80 — Reference to High Court,]
Three persons, who were attacked and wound-
ed in an affray, informed the police on the

Digitized by




Jury {contd,)—

same day that the persons who had attacked
them were A, B, and C. Eighteen days
afterwards the same complainants gave to
the Magistrate inquiring into the case the
names of four other persons, who, they said,
with the three persons first accused, formed
the attacking party. The seven accused
were tried jointly for the offence before the
Additional Recorder of Rangoon and a jury.
In his charge to thejury the Additional Re-
corder omitted to call their attention to the
fact that four out of the seven accused had
not been mentioned by the prosecutors un-
til after eighteen days had passed over. The
prisoners were convicted. Held that the
Additional Recorder misdirected the jury ;
that under the circumstances the misdirec-
tion prejudiced the four persons last accus-
ed ; and that the verdict must be set aside
as far as they were concerned. — Leiu Tu v.
Empress, I. L. R., 1 1 Cal. 10 [see p. 590 of
this book].

9. Ju RY — Verdict in accordance with charge
— Verdict disagreed with by Judge — Refer-
ence under s. 307, Act X. of iSS2.^ The
Court will not interfere with the finding
of a jury, unless their verdict is shown to
be manifestly erroneous. A prisoner was
charged under ss. 302, 304 of the Penal
Code, and the Judge at the trial added a fur-
ther charge under s. 325. The Judge in his
charge to the jury directed them that, in the
event of their finding the charges under ss.
302, 304, unsustainable, they might find the
prisoner guilty under s. 325. The jury unani-
mously acquitted the prisoner under the
charge framed under s. 302, and a majori-
ty of them acquitted him under the charge
framed under s. 304 ; but a majority of them
found him guilty under the charge framed
under s. 325. The Judge disagreed with
their finding as regarded the charge framed
under s. 304, and referred the case to the
High Court under s. 307 of the Criminal
Procedure Code. The High Court refused
to interfere with the verdict, on the ground
that the verdict could not be said to be ma-
nifestly erroneous, the Judge having heard
the evidence, and having expressed his opi-
nion to the jury that they might find the
firisoner guilty under s. 325. — Empress v.
acquiet, I. L. R., 11 Cal. 85 [see p. 600 of
this book].

• 10. Jury — Charge to-^Criminal Procedure
Code (Act X. of 18S2), s. 298— Duty of
Judge when the jury are uncertain as to the
offence committed — Evidence disbelieved in
some parts, and accepted in others^] A jury,
after retiring, returned to the box, and, after
unanimously finding both prisoners not guil-
ty of the charges framed against them,
stated to the Judge that they thought an of.

Jury {contd.)^

fence had been committed by one of the pri-
soners, but were uncertain as to the section
of the Penal Code applicable to his case ;
the Judge thereupon made over to them a
copy of the Penal Code, leaving them to
decide under what section the offence felL
Held that he had failed in his duty, and that
he should have asked the jury what doubts
they had as to the crime which had been
committed, and should have explained to
them the law, and informed them what of-
fence the facts would prove against the pri-
soner if they believed those facts. Where
the evidence at a trial is in part disbelieved,
as to which part it is thought that the wit-
nesses had committed perjury, it is unsafe
to accept the evidence of those witnesses in
other parts, and to convict the prisoner
thereunder. — Jaspath Singh v. Qneen-Em-
press, I. L. R., 14 Cal. 164 [sec p. 727 of
this book].

II. Jury — Sessions Judge, Opinion cf—
Criminal Procedure Code (Act X. of 1882),
s. 307 — High Court, Power of] In the exer-
cise of its powers under s. 307 of the Code
of Criminal Procedure, the High Court will
form and act upon its own view of what the
evidence in its judgment proves ; but, in do-
ing so, the opinion of the Sessions Judge,
no less than the verdict of the jury, is enti-
tled to its proper weight. Reg. v. Khande-
ra Bajirav (I. L. R., i Bom. 10), Empress tr.
Mukhun Kumar (i C. L. R. 275), Empress «».
Dhunum Kazee (I. L. R., 9 Cal. 53), Queen-
Empress 9. Mania Da3ral (I. L. R., 10 Bom.
497), Queen c. Ram Chum Ghose (20 W. R.
Cr. 33), Queen v. Sham Bagdi (13 B. L. R,
Ap. 19 ;v 20 W. R. Cr. 73), Queen v. Harro
Manjhee (14 B. L. R. Ap. 2 ; 21 W. R. Cr. 4).
Queen v. Wuzir Mundul (25 W. R. Cr. 25),
Queen v, Nobin Chunder Banerjee (13 B. L.
R. Ap. 20 ; 20 W. R. Cr. 70), referred to.—
Queen-Empress v. Itwari Saho, I. L. R., 15
Cal. 269 [see p. 808 of this book].

Jury— .

Appeal upon Facts from Verdict of. See
Appeal by Loc.\l Government, 2.

Charges, Distinct and Separate, tried
Simultaneously by. S«? Separate
Charges, 2.

Charge to. See Evidence, 4.

Functions of a, in a Case of Public Nai-
sance. See Public Nuisance, 3.

Illegally Constituted. See Public Nui-
sance, 8.

Judge disagreeing with Verdict of Acquit-
tal of. See False Evidence, 8.

Minority of, refusing to act. See Public
Nuisance, 12.

Misdirection to. See Previous Convic-
tion, I ; Refreshing Witness's
Memory, 2.

Digitized by




Jury (contd.)—'

Questioning of, as to Verdict. See Right

OF Reply, 1.
Verdict of. See Appeal, i.

JTurytcan —

Qualification of. See Evidence, 4.

Justice of the Peace—

Disqualifying Interest of. See Municipal

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 157 of 166)