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 34 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 34 of 166)
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when a prisoner is discharged for want of evidence, the former proceeding is
at an end ; and when a prosecution is revived, it is a fresh proceeding, requir-
ing the evidence to be gone into de novo.

1 Criminal Reference, No. 1130! 1879, from an order made by Syud Ametr Alt, Ssq.^
Officiating Chief Magistrate of Calsiitta, Northern Division, dated the 5th Migr 1^^



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CALCUTTA SERIES. VOL. V. a^S

I hardly think the Legislature could have meant that a discharge under $. i8fQ«
87 shauld be a remand sine die. Arguments have been drawn from the use of — — •^—
the word " revival, '* but these arguments appear to me to be fallacious. If the Bhpmss-
words had been revival of the prosecution, instead of revival of a prosecution, ^'

thcie might have been some force in the contention. I take it that the expla- Chundb*
natioii to 8. 87 simply debars the defendant in certain cases from taking the plea Nath Dutt,
of auirefoit acquii ; but creates no special procedure such as is contended for. 5 Cal# lak
For the reasons above stated, I am inclined to hold that no commitment can be
made; and that, as the Government Prosecutor does not propose to call witnesses
to prove the material fads of the case, and to enable the defendant to cross-ex-
amine them with reference to the new evidence, the prosecution must fail.

The question referred was —

"Whether a prosecution revived under expl. 2 to s. 87 of Ad IV. of
1877 is a continuation of the old proceeding ; and whether evidence of the ''re-
vival " should or should not be taken de novo'* Pending the opinion of the High
Court, the defendant was enlarged on bail, to appear on the 30th instant.

The opinion of the High Court was delivered by

Whitk, J. (Morris, J., concurring). — The question raised bv the reference
of the Officiating Chief Magistrate is as to the procedure to be adopted in cases
under ch. 8 of the Presidency Magistrates' Aft, when an accused person,
who has been discharged by the Magistrate under s. 87 of that Aft, because
there are no sufficient grounds for committing the prisoner to take his trial, is
at some subsequent time again prosecuted before a Magistrate for the same of-
fence. The Aft, in s. 8z, states specifically the procedure to be applied when
an accused person is brought before the Magistrate under ch. 8, and no dis-
tittctkm is made between the cases of a first and that of a second prosecution
fotthe same offence. The argument that on a second prosecution the witnesses
who were examined on the first prosecution need not be examined again, but
may be considered as giving evidence in support of the second prosecution, is
based solely and entirely upon the circumstance that the Legislature, in expl. 2
dl& 87, has described the second prosecution as the '* revival of a prosecution."
Ithhlktheargaiiient is not sound, and has no sufficient foundation. Theargu^
Mot is> in fact, an inference from the use of the word "revival/' The object
of eaqd. t of s. 87 is to negative the supposition that a discharge would be a
bar to a second prosecution for the same offence. The explanation does not
deal ivitfa the procedure which is to be adopted, if such second prosecutkm
ihoddtikeplace. The faft that the Legislature has described the second prosecu-
tioa as the " revival of a prosecution, " does not, in my opinion, warrant the in*
fotnce eUher that the evidence upon which the first prosecution is based is also
nvbed, or that the procedure upon the second prosecution is to be different
fwm tlua pointed oat in s. 82. A further reason for this view is to be found in
tlw provisdoA for adjournment, which Is contahied in the same chapter of the
hXL Under s. 86 a Magistrate has large powers of adjourning an enquiry for
naaooable cause, but no adjournment can be for longer than fifteen days at a
daw. K, upon a second prosecution after a discharge, the Magistrate is to
tUflrt the evidence that was given in the first prosecution as evidence upon the
ledDnd proeecntion, or as it Is called in the reference before us — " take up the
cass lor ihe prosecution where it was left when the prisoner was discharged " —
the Uagistrate would, in effect, be acting as if he had adjourned the enquiry
nmi dit^ which he has no power to do. It cannot be supposed that the Legis«
btaie intended bv the mere use of the word '' revival of a prosecution " in expl.
2, s. 87, to give the Magistrate such a power, after it had carefully made pro-



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u& INDIAN LAW REPORTS.

1879. vision by s. 83 against unlimited adjournments. In my opinion the proper reply

to the question of the Officiating Chief Magistrate is, that a " revival of a pro-

Emprbss secution, " as mentioned in expl. 2 of s. 87, is not a continuation of the original

'^' prosecution from which the accused has been discharged ; and that, upon the

Chunder revival of the prosecution, all the witnesses on whose evidence the prosecutor

Nath Dutt, intends to rely as justifying the committal of the accused must be examined

5 Cal. 131. before the Magistrate ; and if any of- them were examined at the time of the

original prosecution, they must be examined de novo.



Be/ore Mr, Justice Morris and Mr, Justice White.

THE EMPRESS v, MAGUIRE.i
^ Mutiny A^t s, loi — Jurisdiction of Civil (as opposed to Military) Courts-^C^-

— — fence committed by British Soldier,

5 Cal. 1:14. g jQ, Q^ ^|jg Mutiny Aft does not deprive the Civil (as opposed to NUHtary) Courts

of jurisdiction over British soldiers committing offences within the territorial limits of
those Courts, nor render the exercise of their jurisdiction dependent upon the sanction of
the Commander-in-Chief. The section is merely permissive of a military trial being held.

In this case the prisoner, who was a European British subjed, and a private
in the army, was charged with the offence of theft, and was committed by the
First Assistant Superintendent for trial to the Sessions Judge and Judicial Com-
' missioner of the Andaman and Nicobar Islands. That officer referred the case
to the High Court under s. 296 of Aft X. of 1872 and s. 13 of the Andaman
and Nicobar Islands Regulation of 1876, on the ground that the commitment
had been made without regard to the provisions of s. loi of the Mutiny Ad,
1878, which provides in such cases for a trial of the prisoner by court-martial,
and without any communication on the subjeft having been made to the Com-
mander-in-Chief. He was therefore of opinion that he had no power to try the
case.

The opinion of the Court was delivered by

White, J.— We have referred to the loist section of the Mutiny Aft (41
Vic, c. 10, A.D. 1878), and are of opinion that that section (which is also to be
found in the Mutiny Acts between 1873 and 1878) does not deprive the Civil
Courts of jurisdiction over British soldiers committing offences within the terri-
torial limits of those Courts, nor render the exercise of their jurisdiction depend-
ent upon the sanction of the Commander-in-Chief. The loist section simply
provides that, as regards civil offences committed by British soldiers serving in
India or its dependencies, and at a distance of more than 1 20 miles from the
Presidency-town, the offenders may be tried by a general court-martial, the ap-
pointment of which rests with the Commander-in-Chief. It appears to us ^iat
the section is merely permissive of a military trial being held. In this case the
Court has got possession of the investigation of the offence, and the military
authorities have not availed themselves of the alternative procedure of trying
the offender by a general court-martial. Under these circumstances, we think
that the Court of the First Assistant Superintendent was a competent Court to
commit the accused for trial on a charge of theft, and that the Court of the Ses-
sions Judge and Chief Commissioner is a competent Court to deal with the case
so committed, and we accordingly dired the latter Court to dispose of the case.

> Criminal Reference, No, G?of 1879, from an order made by Lieutenant«General

C. A, Barmell, C.B., Sessions Judge and Chief Commissioner of Andaman and Nicobar
Islands, dated the 24th April 1879.



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CALCUTTA SERIES. VOL V. a 17

APPELLATE CRIMINAL.
Before Mr, Justice Ainslie and Mr, Justice Broughton,
Ik the mattbr of ABDOOL and others (Petitioners) v. LUCKY NARAIN ito*

MUNDUL AND OTHERS (OPPOSITE PaRTY).^ A^MI>

Order under s, 518 of A^ X, of i8*j2 — Limit of Order, . q^^ j^^

Per Ai.HSLiB, ]. — In dealing with the civil rights of a subject under s. 518 of the Cri-
minal Procedure Code, it is incumbent on the Magistrate to limit the operation of his order
to such reasonable time as may be necessary to enable him to hold a full and sufficient
enquiry, as to whether the a6t prohibited as likely to cause a breach of the peace is within,
or is in excess of, the l^;al right of the person forbidden to do it ; and, if necessary, to deal
with the case under the other provisions of the Criminal Procedure Code, which enable
him to meet cases of probable breach of the peace.

Per Broughton, J. — Where an order on the face of it appears to have been made
without jurisdiction, no subsequent explanation can make it good.

Four Mahomedan residents in a Hindu village applied to the Deputy Ma-
^strate of Midnapore for an order restraining the Hindu inhabitants of the
village from obstructing them in the slaughter of cattle in the village, and also
for an order preventing a breach of the peace.

The Magistrate ordered the police to report on the case, and they rec9pi-
mended that the cattle should be slaughtered at a place four miles distant from
the village. On this report the Deputy Magistrate, on the loth June 1877,
ordered ** that the application to slaughter kine in the said village be rejected."

The Mahomedans then applied to the Sessions Judge under s. 295 of the
Cnminal Procedure Code ; and he, on the 20th September 1877, rejected the
application, on the ground that, until there was any actual disturbance on the
part of the Hindus, the poUce could not interfere on behalf of the Mahomedans.

The Mahomedans, subsequently to this, continued to slaughter caUle, and
OQ their so doing, one of them was charged under s. 188 of the Penal Code wUh
disobeying the Deputy Magistrate's order, prohibiting the slaughter of kine in the
vtlb^, and was sentenced to one month's imprisonment and a fine of Rs. 20.

On appeal from this conviction, the Judge, on the 19th March 1878, set
aside the order, holding that there was no legal prohibition existing by virtue
of any order made by the Deputy Magistrate forbidding the slaughter of kine.

From that time the Mahomedans continued to slaughter cattle as they had
formerly done up to the nth November 1878, when a Hindu inspector of police
reported to the Magistrate that the Hindus and Mahomedans had agreed by
ikramama to use a certain place, four miles off, for the purpose of slaughter-
ing kme. On this report the Magistrate passed an order ex parte on the 2xst
November 1878, in these words : ** Kine may be slaughtered on the land speci-
fied in the ikramama, and in no other place, and that to the above effed a
pnblic notification be issued."

Against this order the Mahomedans appealed, and after certain corre-
moodence between the Judge and the Joint-Magistrate as regarded the juris-
diction of the Joint-Magistrate, the appeal was rejected.

The Mahomedans applied to the High Court under s. 296 of the Criminal
PiDCcdure Code to have the order set aside.

VLooxi'^t^ Mahomed Yusuf^Xi^ Moulvie ^^r^^Z/x/^/w for the petitioners. —
The Magistrate had no power to issue the order under s. 518 of the Criminal

* Criminal Motion, No. 75 of 1879, against the order of T. D. Beightan, Esq., Joifit-
Magisteite of Midnapore, dated the 21st of November 1878.

I. L. R., Cal. 28.



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ii8



imiAN La w reports.



1879.



In the

matter op

Abdool

Lucky
Narain

MUNDUL,

5 Cal. 133.



Procedure Code, no action havipg been taken before the cattle were slaugh-
■ tered, so as to give jurisdiction to the Magistrate to direft the Mahomedans to
abstain from slaughtering cattle. No breach of the peace was imminent, and
it is only under cases of emergency that the Magistrate has power to pass an
order under s. 518 ; at all events, he had no jurisdiction to pass an order under
that section, that we should not slaughter cattle except in one particular spot.

Baboo Mohiny Mohun Roy and Baboo Bhohany Churn Dutt for the op-
posite party.

The judgments of the Court were as follows : —

AiNSLiE, J. — ^The order of the Magistrate complained of is dated the 21st
November 1878, and is in the following terms: " Kine may be slaughtered
in the place named in the ikrarnama. They cannot be slaughtered in any
other place. A notice to this effeft will be issued by beat of drum."

This order does not, on its face, purport to be made under s. 518 ; nor
does it determine that there was any emergency, which made it necessary for
the Magistrate to resort to the provisions of that section. It is either an order
under s 5 18, or it is not. If it is not under that section, it does not appear that
there is any law which authorized the Magistrate to make it, and no prosecution
under s. 188 of the Penal Code could be maintained for disobedience of it. If
it is taken to be made under s. 518, the order is bad, inasmuch as it deals with
the civil rights of persons without any limitation of time.

The objeft of s. 518 is to enable a Magistrate, in cases of emergency, to
make an immediate order for the purpose of preventing an imminent breach
of the peace, &c. ; but it is not intended to relieve him of the duty of making
a proper enquiry into the circumstances which make it likely that such breach
of the peace, &c., will occur. It is, therefore, incumbent on him to limit the
operation of his order to such reasonable time as may be necessary to enable
him to hold a full and sufficient enquiry, and, if necessary, to deal with the case
under the other provisions of the Criminal Procedure Code, which enable him
to meet cases of probable breach of the peace, &c. An order made under s.
518 is not bad, simply because it interferes with the legal rights of individuals ;
but when such interference is necessary, it is the duty of the Magistrate to limit
it as much as possible; and for the purpose he should afterwards hold an enquiry
into the circumstances, and determine whether, as a matter of faft, the aft pro-
hibited as likely to lead to a breach of the peace, &c., is within, or in excess
of, the legal right of the person forbidden to do it. If it is found that a man
is doing that which he is legally entitled to do, and that his neighbour chooses
to take offence thereat, and to create a disturbance in consequence, it is clear
that the duty of the Magistrate is, not to continue to deprive the first of the
exercise of his legal right, but to restrain the second from illegally interfering
with that exercise of legal rights.

I think, therefore, that, in the present instance, the order of the 21st No-
vember 1878 must be set aside as being either in excess of the power given
by s. 518, or as being altogether in excess of the jurisdiction of the Magistrate.

Broughton, J. — I entirely concur in what has fallen from my learned col-
league. I would only add a word with reference to the objection raised, namely,
that the subsequent correspondence of the Magistrate would have explained the
nature of his order. It appears to me that, if the order does not, on the face
of it, show that it was made with jurisdiction, no subsequent correspondence or
explanation would make it a good order.

Order set aside.



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CALCUTTA SERIES. VOL. V, ai9

APPELLATE CRIMINAL.
Before Mr. Justice Ainslie and Mr. Justice Brougkton.
Ik the matter of DURJAN MAHTON and others v. WAJID HOSSEIN ^^

AND OTHERS.! A^l 23*



Beng. Act VIII. of i86g, s. SJ— Ejectment— Right to Standing Crops on land. 5 C*l« «3S.

The effect of an order of ejectment under s. 53 of the Rent Act is to dispossess the
lyots, not only of the land, but also of the crop standing thereon, the object of such an
ejectment being to terminate completely Jhe connection between the parties as landlord
suid tenant.

In September 1878, one Wajid Hossein and others obtained a decree for
arrears of rent against Durjan Mahton and others, the decree containing a provi-
sion under s. 52 of the Rent Act for the ejectment of the tenants, in case of
non-payment of the rent within fifteen days from the date of the decree. On
the 7th November 1878 a writ of ejectment was issued, and on the loth the
decree-holders were put into possession. The ryots refused to allow the decree-
holders to remove the crop, and the decree-holders therefore made an appli-
cation to the Magistrate, stating in their petition that they were entitled to
divide the crop with the ryots. The Deputy Magistrate, on the 12 th Decem-
ber, without taking any evidence or issuing any notice to the ryots, directed
the police to cut the crop and store it for '* the persons who might be entitled
to it." On the 28th December 1878 the decree-holders amended their peti-
tion and claimed the whole of the crop, and asked that proceedings might be
taken against the ryots under s. 530 of the Criminal Procedure Code. The
Magistrate cancelled his order of the 1 2th December, and ordered the police
to see that no breach of the peace occurred. The crop had, however, been cut
previously to the latter order. In January 1879 the ryois represented to the
Deputy Magistrate that the decree referred to the land and not to the crop ;
and on this the Magistrate referred the matter to the police to enquire and re-
port whether the decree for possession included the crop. The police reported
their opinion that, when the land was decreed, the crop must go with it, and the
Deputy Magistrate ordered the crop to be made over to the decree-holders.

The Sessions Judge, on the case coming up before him, was of opinion
that the order of the Deputy Magistrate was illegal, inasmuch as, without taking
evidence or issuing any notice, he had ordered the police to cut the crop, and
made it over to the decree-holders on a report of the police ; and he therefore
referred the case to the High Court under s. 296 of the Criminal Procedure Code.

Moonshee Mahomed F«j«/* appeared for Wajid Hossein.

No one appeared on the other side.

The opinion of the Court was delivered by

Ainslix, J. (Broughton, J., concurring), who, after stating the facts, con-
tinued : — ^The proceedings of the Deputy Magistrate have, no doubt, been very
irregular, but it appears to us that the result arrived at is that which he must
have arrived at if he had acted according to the law.

The dispute in this case arose in respect of certain property which admit-
tedly was in the possession of the ryots up to a certain date ; and which was
claimed by Wajid Hossein and others as having been transferred to them by

1 Criminal Reference, No. 137 of 1878, dated the 3rd April 1879, made by J, M ^
Lomt, Esq,, C.S., Sessions Judge of Bhagalpore.



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INDIA NLAW REP OR TS.



1879.



In THE

M ATTSR OF

^URjAir

Marton

Wajid
H08SBIN,
5 Cal. 135.



the execution of a decree for ejectment under the Rent Law on the i8th of No-
• vember 1878. Both the parties refer to the same decree, one as showing hia
right to both crop and land, and the other as showing that the zemindars were
entitled to the land only, and not to the crop. When, therefore, it became neces-
sary for the Deputy Magistrate to consider what steps he should take to pre-
vent any breach of the peace, it clearly was necessary for him to come to some
determination as to the effect of the Munsif s decree, which both parties put
forward as conclusively establishing their respective rights. If he was of opi-
nion that the evidence before him showed that a breach of the peace was likely
to occur, he would have to give effect to his decision in regard to the effect of
the execution under the decree, by binding over the party whom he considered
to be wrongfully putting forward a claim to the property, in recognizances not
to commit a breach of the peace. The practical effect of the recognizance would,
no doubt, have been, to give the crop to one or other of the contending parties.

Instead of making the order in this form, he unfortunately allowed the
police to interfere with the cutting and carrying away of the crop, and having got
it into his own custody it became necessary for him to get rid of it.

The order to cut the crop, and subsequently to make it over to one of the
parties, was not an order warranted by the Code of Criminal Procedure, but the
effect of it was the same as if he had bound down the r}'ots under s. 491, or re-
strained them from interfering with the crop under s. 518.

The Judge is of opinion that in this case the Deputy Magistrate has en-
croached upon the functions of the Civil Courts, and that he has, instead of al-
lowing the Civil Court to execute its own decree, proceeded to execute it after
consulting with the police. This, in our opinion, is not quite a correct state-
ment of what occurred. However irregular the proceedings of the Deputy Ma-
gistrate may have been in form, it clearly was necessary for him to come to a
decision as to the effect of the decree of the Civil Court. The steps he took for
arriving at that decision were, however, improper. If he had any doubt as to
the intention of the Court executing the decree, the proper course for him was
to consult the Court itself, and not to make enquiries as to the effect of the exe-
cution of the decree from the police. But, although his mode of arriving at that
conclusion was not correct, it appears to us that the conclusion arrived at, so far
as we are able to come to any determination on the point in the exercise of cri-
minal jurisdiction, was correct. We are not aware that the question as to
the effect of an ejectment order under s. 53 of the Rent Law has yet been con-
sidered on the civil side of the Court. But, looking at the provisions of the Act
itself, it seems to us thdt the conclusion arrived at by the Deputy Magistrate,
that the effect of an ejectment under the Rent Law is to dispossess the ryot not
only of the land but also of the crop standing thereon, was a reasonable one.
The object of that ejectment is to completely terminate the connection between
the parties as landlbrd and tenant. The ejectment is in itself by way of penalty
for non-payment of the rent of previous years, and the provisions of s. 54 of the
Refti Law are extremely stringent.

That section does not allow the Court executing the decre6 to entertain any
application for stay of execution, and it does not allow any person evicted under
an ejectment order to be restored to possession at all unless the decree shall be
reversed.

We are, therefore, of opinion that the conclusion at which the Deputy Ma-
gistrate arrived, as to the effect of the ejectment order, was a correct one ; and
that he would have been perfectly justified in taking steps, under the provisioiis



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CALCUTTA SERIES. VOL. V.



aai



of tlieCriiiihial Procedure OodCf for protecting flie decree-holden from violence,
when they proceeded to enforce their claim to the crop standing on the land -
firom which the ryota had been ejected.

With reference to the explanation of the Deputy Magistrate, dated the 3rd
of April 1879, ^^ which he says that he is not aware that there is any particular
section of the law applicable to his actioft, we would observe that, if the law did
not allow him to act in the way in which he did, his action clearly was illegal.
He was bound to follow the provisions of the law, which, properly applied, are
sufficient for providing against a breach of the peace. In support of his view,
that, in the absence of any special law, he was justified in acting on his own
discretion, Mr. Hampton says that '* there is no section of the law authorizing
return of stolen property recovered to the man robbed, yet it is in reason that
the property should be so returned." Mr. Hampton has apparently Overlooked
theproTtsions of s. 418 of the Code. That section clearly provides for the oaae
which he supposes to be left not provided for.



187^



hf THB

1IATT»R OF

DVKfiM

Manto*

Wajid

HOSSBIN,

5 Cal. 135.



APPELLATE CRIMINAL.

Before Mr. Justice Ainslie and Mr. Justice Broughton.



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 34 of 166)