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 7 of 166)
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in the Financial Department. It may be that what really vacates an office is
not the going on furlough, but the appointment of another person to the office;
and, as far as I have seen, no person was specially appointed to succeed Mr.
Carnegy in his office as Magistrate in the district of Seebsaugor. The num-
ber of Subordinate Magistrates in a district being unlimited, there was no neces-
sity for doing so. And this seems to be the view of the Local Government of
Assam ; for whilst Mr. Carnegy' s powers were conferred afresh, it does not ap-
pear that he ever received any fresh appointment as Magistrate. He is, no
doubt, treated as having ceased to be Magistrate of a division of a district, but
he is apparently treated as being still, on his return, a subordinate Magistrate

I. L. R., Gal. 5.



1876.



Inthb
mattbr of
pursooram

BOROOAH,

3 Cal. 117.



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IJ^DIAN LA W REP0RT;S,



1^.



In thb

^^TTER OF

^V^OORAlf

QpBOOAH,

?C^j, 117,



in or o/z district, which district could have been no othe^ than the district of
Seebsaugor.

I should, therefore, desire further consideration before holding that Mr.
Carnegy vacated his former appointment by going on furlough, and that on
this ground he was not. transferred to the district of Kamroop within the mean-
ing of s. 56 ; I desire to be understood as expressing no opinion upon this
point.

But there remains the second question, whether the operation of the sec-
tion is prevented, because the Local Government has otherwise directed.

If we take s. 56 quite literally, it would seem to indicate that the " direction
otherwise" there alluded to was a direction contemppraneous with the trans-
i^. This would render a special direction necessary in every case of transfer
where the powers had already been locally restricted under s. 38. But when
the Local Government had already declared its intention on this subject, this
would seem to me to be superfluous. And it does not appear to me necessary
to put this construction on s. 56. I think that the words, " unless the Local
Government othenvise directs, " reasonably construed, will include a previous
restriction under s. 38, as well as one imposed when the transfer is made.
This accords with the view taken by the Local Government of Assam, which
(as before pointed out) clearly treated the powers conferred upon Mr. Carnegy
as having come to an end.

Upon this last ground, therefore, I hold that Mr. Carnegy has no sum-
mary powers under s. 222 in the district of Kamroop; and I, therefore, thin^
that we ought to quash the conviction, and discharge the sureties.

MiTTER, J.^-I am also of the same opinion. It seems to me that the
eSect of the Government Resolution, dated ist of January 1873, was to confer
upon Mr. Carnegy powers under s. 222 of the Criminal Procedure Code within
the Sub-division of Jorehaut only. That being so, it cannot be said that he
was " transferred to an equal or higher office " of the nature of that which he
held in the district of Seebsaugor ; because, supposing he was transferred with-
in the meaning of that section, and that he never vacated his appointment, the
office to which he was transferred in the district of Kamroop is neither equal
to nor higher than that he held in the district of Seebsaugor. A reference to
ss. 27 and 28 of the Code will show that the powers of a Magistrate of a division
of a district are higher than those of a Magistrate of the first-class not in charge
of any Sub-division. I am, therefore, of opinion that, under the section (56)
referred to above, Mr. Carnegy did not continue to exercise the same power
which he had while in charge of the Sub-division of Jorehaut.

Conviction quashed.



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CALCUTTA SERIES. VOL. II. J5

FULL BENCH.

Before Sir Richard Gar/A, Kt., Chief Justice, Mr, Justice Kemp, Mr. Justici
Macpherson, Mr. Justice Markby, and Mr. Justice Ainslie.

THE EMPRESS OF INDLV v. DILJOUR MISSER.i 1877*

Conviction of offence committed before the Penal Code came into operation — Reg, '

IV. of lygy — Act XVII. of 1862— Act I. of 1868 (General Clauses Consoli- 2 Cal. 225.
daiion Act), s. 6.

The prisoner was found guilty, and sentenced, under Reg. IV. of 1797, to transporta-
tion for life, for a murder committed in 1861, before the Penal Code came into operation ;
and the case was sent up to the High Court to confirm the sentence. Reg, IV. of 1797
was repealed bv Act XVII. of i86a, and that Act was wholly repealed by Acts VIII. of
1868 and X. of 1872. Held^ on a reference to a Full Bench, that the conviction was
illegal, s. 6 of Act I. of 1868, which provides that the repeal of any Act or Regulation
shall not affect any offence committed before the repealing Act shall have come into
operation, not being applicable.

The prisoner was charged with murder, alleged to have been committed
on 24th May 1861, before the Penal Code came into force, and he had evaded
arrest up to the time of his apprehension. The prisoner was, on 7th August
1876, found guilty by Mr. A, V. Palmer, Sessions Judge of Shahabad, of
culpable homicide not amounting to murder, and sentenced to transportation
for life. The case was referred by the Judge under Reg. IV. of 1797, s. 3,
for the orders of the High Court, and, on its coming before Markby and Ainslie,
J J., the following note was made thereon by those Judges : —

"Reg. IV. of 1797 was repealed by Act XVII. of 1862 with some re-
servations, but, as appears by a case* just decided, those reservations have
been also repealed, so that the Sessions Judge was not empowered to make
the reference he has done. Nor are we aware of any Regulation in existence
under which the prisoner could be punished for culpable homicide committed
on the 24th of May 1861. Unless, therefore, some cause be shewn to the
contrary, the conviction must be set aside as illegal."

' Criminal Reference, No. 176 of 1S76, from an order of A. V. Palmer, Esq., Ses-
sions Jndge of Shahabad, dated the 7th August 1876.

' R. V. Lall ShaAa, Criminal Appeal, No. 438 of 1876. In this case the prisoner was
convicted, in May 1876, of robbery committed in 1857, under s. 3, Rep. LIII. of 1803,
and s, 3, Keg. XVI. of 1825, and was sentenced, under s. 395 of the Penal Code, to seven
years' rigorous imprisonment. His appeal came before Markby, Ainslie, and Mitter, JJ.,
on 17th August 1876, when the following judgment was delivered: —

Markby, J. — In this case the prisoner has been tried for robbery by open violence,
and sentenced to seven years' rigorous imprisonment, under Reg. LIII. of 1803, s. 3,
and Reg. XVI. of 1825, s. 3. He has appealed to this Court, and his first ground
of appeal is that, those Regulations having been repealed, the conviction is illegal.
These Regulations were repealed by Act XVII. of 1862 with a certain saving as to
past offences. Act XVII. of i86a was repealed by Act VIII. of 1868, except ss. 3, 4, 5,
and 6, These sections were repealed by the Code Qf Criminal Procedure of 1872. It
would, therefore, seem that this ground of the prisoner's appeal is well founded. From
another case of a somewhat similar character, which is now before us, we gather that
there is an opinion prevalent in the Courts of the country, that the old criminal laws,
antecedent to the Penal Code have not been swept away to the extent to which they
appear to us to have been on a perusal of the Statutes above referred to. We regret
that we have had no assistance on behalf of the Crown in the investigation of this matter,
but, as far as we are able to judge upon the information before us, this conviction ap-
pears to be illegal, and we ord^r it to be set aside, and the prisoner discharged.



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36



INDIAN LA W REPORTS.



1877.



Empress of
India

DiLJOUR

MlSSBR,

2 Ctl. 225.



1877.

Jan, i8,
2 Ctl. 273.



Notice was ordered to be given to the Government Pleader and to the
prisoner, and the case subsequently came heiore Mar kfy, Ainsliey ^.ndiMUter,
JJ., who referred it to a Full Bench with the following remarks : —

** In a case which came before this Court on appeal a short time ago, it
was held by us that Act XVII. of 1862 was totally repealed by Acts VIII. of
1868 and X. of 1872, and that therefore no conviction for an offence committed
prior to 1862 could be maintained. That case was not argued, and we were
therefore only able to express our opinion with reference to such research as
we could ourselves make into the matter. Very shortly afterwards the present
case was referred to us under Reg. IV. of 1797, s. 3, to confirm a sen-
tence passed by the Sessions Judge of Shahabad, for an offence committed
on the 24th May 1861. We accordingly gave notice that we should again con-
sider this question, and the Junior Government Pleader has appeared to argue
it. He maintains that, notwithstanding the repeal of Act XVII. of 1862, the
prisoner may be still tried and punished because of the proviso in s. 6 of the
General Clauses Act (I. of 1868). We find considerable diflSculty in coming
to a conclusion as to the operation of this section in the present case, and as
the question is one of general importance, it should, we think, be heard by a
Full Bench."

No counsel appeared on either side before the Full Bench.

The opinion of the Full Bench was delivered by —

Garth, C.J. — In this case the prisoner has been convicted of culpable ho-
micide not amounting to murder committed on the 24th May 1861, and sen-
tenced to transportation for life. Act XVII. of 1862, under which the prisoner
has been tried and convicted for this offence, has been totally repealed by Acts
VIII. of 1868 and X. of 1872. It has, however, been contended that, notwith-
standing this total repeal of Act XVII. of 1862, the prisoner may still be
tried and convicted under that Act by virtue of the provisions of s. 6 of the
General Clauses Act (I. of 1868). We have considered this clause, and upon
the whole we think that it does not apply to the present case. The conviction,
therefore, must be set aside, and the prisoner discharged.



APPELLATE CRIMINAL.
Before Mr, Justice Jackson and Mr, Justice McDonell,

THE EMPRESS OF INDIA v, JUDOONATH GANQOOLY.i

Criminal Procedure Code (Act X, of 18^2)^ s. 2J2 — Appeal — Officer appointed to
prefer Appeal — Judgment of Acquittal — Conviction on Charge of Murder of
Culpable Homicide not amounting to Murder — Acquittal,

On the trial by a jury of a person on a charge of murder, the jury found the accused
not gfuilty of the offence of murder, but convicted him of culpable homicide not amounting
to murder. The Sessions Judge, although he disagreed with the verdict, declined to sub-
mit the case to the High Court under s. 263 of the Criminal Procedure Code. The Local
Government, thereupon, directed the Legal Remembrancer to appeal under s. 272 of the
Code, and in pursuance of this direction an appeal was preferred by the Junior Govern-
• ment Pleader. Held that the appeal was duly made. Held further that a judgment pass-
ed by the Court of Session, following the verdict of a jury acquitting the prisoner, is a
judgment of acquittal within the meaning of s. 272. Held also that, there being an ac-
quittal on the charge of murder, the appeal lay.

* Criminal Appeal, No. 278 of 1876, against an order of J, O^KineaXy^ Esq., the Ses-
sions Judge of the 24-Pergunnahs, dated the 8th May 1876.



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CALCUTTA SERIES. VOL. IL



37



The prisoner, Jndoonath Gangooly, was tried by a jury for the murder o1
one Dassee Raur. The jury acquitted him of .the charge of murder, but con-
victed hini of culpable homicide not amounting to murder. The Sessions
Judge, although he remarked that he did not concur with the verdict, declined
to submit the case to the High Court under s. 263 of the Criminal Procedure
Code. He recorded two separate findings and sentences, stating in the first
that the jury had found the prisoner not guilty of murder, and directing his
discharge; and in the second, stating that the jury had found the prisoner guilty
of culpable homicide not amounting to murder, and sentencing him to 10 years'
rigorous imprisonment. The Local Government directed the Legal Remem-
brancer to prefer an appeal to the High Court under s. 272 of the Code,
" against the judgment of the Sessions Judge acquitting the prisoner of the
charge of murder." In pursuance of this direction, a petition of appeal was
presented and filed by the Junior Government Pleader.

Mr. Ingram (with him the Junior Government Pleader, Baboo Juggada-
nund Mookerjee) for the Crown.

Mr. M. M. Ghose for the prisoner.

Mr. Ghose, — There are three objections to the hearing of this appeal : Firsi,
it has not been preferred by one of the persons mentioned in s. 272. No public
prosecutor has as yet been appointed under s. 57 of the Code, and the Junior
Government Pleader has not been generally appointed to prefer appeals of this
nature, nor was he specially appointed to prefer this particular appeal. [Mr.
Ingram stated that he was instructed by the Legal Remembrancer. Jackson, J.
— ^The appeal must be taken to be an appeal by the Government.] Secondly,
— ^The prisoner has been convicted, and not acquitted. Where, upon certain
facts found, the jury bring in a verdict of guilty of a particular offence, there
is no such acquittal as would give a right of appeal under s. 272 ; that section,
it is submitted, applies only to cases of absolute acquittal. Thirdly ^ s. 272 only
gives a right of appeal from judgments of acquittal ; it cannot, therefore, apply
to cases of trial by jury in which there is no judgment ; but only the summing
up by the Judge, the verdict by the jury, and the sentence or order of the Court.
The Code of Criminal Procedure throughout draws a distinction between a
" judgment" and a " sentence" or " order." It is doubtful whether an appeal
can be maintained on a question of fact. The section is a novel one, and must
be construed with the utmost strictness.

Mr. Ingram for the (Sovernment. — The only argument to be drawn from
the novelty of the section is that, inasmuch as its wording is general, the Legis-
lature intended to give the Local Government a general and absolute power of
appeal. Under the former Code, which was drawn under the influence of Eng-
lish ideas of criminal justice, the verdict of a jury could only be touched under
the revision section ; but the present Code provides three ways of interfering
with such verdict, — vtz,i under s. 263, where the Court disagrees with the verdict,
under s. 272, and under s. 288. The prisoner has been acquitted upon the
charge of murder, and an appeal lies from such acquittal. Under s. 263, the
jury are bound to return a verdict on all the charges on which the accused is
tried; under s. 452, there must be a separate charge for every distinct offence,
and each charge must be tried separately, except in the cases by the Code
excepted. Then s. 457 provides for an exceptional case; under that section,
the accused may be convicted of the offence which he is proved to have com-
mitted, although he is charged with a "different" offence; and illustration {b)
shows that n^urder and culpable (homicide aipounting to murder are different or



1877.



Empress of
India

V,
JUDOONATH
GANGOOtY,

2 Cal. 273.



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S8 INDIAN LA W REPORTS.

1877. distiikct offences: lastly, s. 461 provides that the Court, in passing jadgment,
■ shall distinctly specify the offence of which the accused is convicted. The word

£MFftEss or "judgment" in s. 272 means what falls from the Court after the verdict; it is
India ^Jj^ conclusion of a syllogism of which the major premiss is, every man who
*• commits a particular offence shall be punished in such and such a way ; the

JuDooNATH minor premiss, — this man has committed th^t offence, and the conclusion is,
Ganoooly, judgment according to the law. S. 263 shows that there is a judgment in trials
3 Cal. 373. by jury : " if the Court does not not think it necessary to dissent from the ver-
dict, it shall give judgment accordingly." S. 271 restricts the right of appeal
of an accused person convicted in a trial by jury to matters of law, but there
Is no such restriction in s. 272. As to the power of appeal under the latter
section in trials by jury, see the observations of Pheafy J., in Queen v. Koonjo
Lethy

Mr. Ghose in reply.

The judgment of the Court was delivered by

Jackson, J. — ^During the argument we disposed of the first part of the
objection taken by Mr. Ghose, who has, at our request, carefully and feelingly
advocated the case on behalf of the prisoner. That objection was, that we
had not before us an appeal such as is contemplated by s. 272 of the Cri-
minal Procedure Code, inasmuch as the petition of appeal had not been pre-
ferred by the Government " prosecutor or other officer specially or generally
appointed in this behalf." It appeared, and still appears to us, that, under
the authority conveyed by the Secretary's letter to the Legal Remembrancer,
the appeal was duly made by one of the Government Pleaders, and has been
regularly and properly sustained before us by the counsel instructed by, and
appearing on behalf of, the Legal Remembrancer.

Mr. Ghose next contended that, in the first place, s. 272 was not meant
to apply, and did not apply to cases where the accused person has been tried
and acquitted by the verdict of a jury; and in the next place, that an appeal
would not lie, inasmuch as there has not been any operative judgment of ac-
quittal, the prisoner not having been set at liberty, but having been convicted
of a minor offence arising out of the same set of facts on which he was charged
with murder. We observe that one of these points, viz,, what is included in
a judgment of acquittal, has been adverted to, though not expressly decided
by Phear, J., in the case of Queen v. Koonjo Lethy But, irrespective of that
expression of opinion, we ourselves do not entertain the least doubt upon this
subject. It appears abundantly from the various sections of the Code of Cri-
minal Procedure relating to judgments, that the judgment passed by the Court
* of Session, following the verdict of a jury which acquits, is undoubtedly a judg-

ment of acquittal. The Legislature has allowed an appeal in cases of acquittal
by the Local Government, under s. 272, in the widest terms, and without any
limitation whatever. Then, as to the contention that there was no acquittal in
this case, it appears manifestly from the record that, as regards the particular
charge of murder, the prisoner was acquitted, and ordered to be discharged
or set at liberty; and that, but for the finding of the jury and the sentence of
the Court in respect of the other offence included in the charge, the prisoner
would, so far as the charge of murder was concerned, have been set at liberty
on his acquittal. He was charged with the offence of murder, which is an
offence distinct from the offence of culpable homicide not amounting to mur-
der. The Judge not having thought fit to refer the case under s. 263, the judg-

» II B. L. R. 14. ' ^



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CALCUTTA SERIES. VOL. IL 39

meat 9tood as a judgment of acquittal. The Local Goveramept is charged with 1^77.

the responsibility of considering in such cases whether the public interests re-

quire that an appeal should be preferred, and as in the exercise of its judgment Empress of
it has thought fit to prefer this appeal, we think the appeal lies. It remains to India
consider what decision we ought to arrive at upon the appeal so preferred, and *-

I confess that I should have greatly desired that the learned Sessions Judge who Jvdoqnatb
tried the case in the Court below had thought right to set out in the proceedings Gangooly,
the grounds upon which he abstained from doing that which the law enjoins 2 Cal. 273.
him to do under s. 263, and not imposed upon the Judges of the High (Jourt
the onerous and painful duty of passing the proper sentence in the case. (The
learned Judge proceeded to consider the evidence, and held that the accused
was guilty of murder, and sentenced him to death.)

Appeal allowed.



ORIGINAL CRIMINAL.

Before Mr, Justice White.

In the matter of the Empress of India on the Prosecution 1877.

OF Malcolm v. Gasper and others. Mar. 19 & 22.

High Courts' Criminal Procedure Act (X, of iSy^J, s. 14^ — Transfer of case 3 Cal. 278.
before Police Magistrate to High Court — Power to issue Mandamus.

A charge was made against the accused of asing criminal force under s. 141 of the
Penal Code. The Police Magistrate heard the evidence for the prosecution, and, without
disbelieving it, decided it did not amount to the offence charged. Held that, assuming
that an error of law had been committed, the High Court had no power to issue a man'
damus to the Ma^strate to commit the defendants ; it was not a case where the Magis-
trate had declined jurisdiction ; he had exercised his jurisdiction, and heard the case.
Meld also, it was not a case which the Court could transfer under s. 147 of the High
Coorts' Criminal Procedure A6t.

This was an application under s. 147 of the High Courts' Criminal Pro-
cedure Ad (X. of 1875) for a rule calling on Mr. Dickens, one of the Police
Magistrates of Calcutta, to show cause why a case should not be transferred to
the High Court for hearing and final determination, or for a mandamus to
compel the Magistrate to commit.

The defendants were charged before the Magistrate, under s. 141 of the
Penal Code, with being members of an unlawful assembly, and, in pursuance
of the common object of such assembly, with having used criminal force, or
show of criminal force, and ejected the prosecutor from the Armenian Church,
of which be was in possession. The Magistrate took evidence in the case, and
came to the conclusion on that evidence that no offence had been made out.
When the application was first made, the Court suggested that it had no power,
luider the circumstances, to grant it, and asked for an authority to show that,
in a similar case, the Court of Queen's Bench or this Court would issue a manda-
«Ms, or grant a certiorari, and gave leave to re-new the application.

Mr. Phillips (Mr. G. Gregory with him), renewing the application, said
that he had been unable to find any case in which the Court of Queen's Bench
had issued a mandamus ordering the Justices to commit ; but there was a reason
for that remedy not being given in England, which did not exist here. The
Queen's Bench does not grant a mandamus until all the other remedies open
to the applicant have been exhausted. Now, in England, in such a case as this,
the rem^y would be to go before a grand jury ; therefore a mandamus would



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40



INDIAN LA W REPORTS.



iS77'



Malcolm

V.

Gasper,
2 Cal. 378.



not lie. But in this country the grand jury has been abolished, and, there being
' no other remedy, a mandamus will issue, the Court having the powers, in that
respect, of the Court of Queen's BencTi. The Magistrate did not disbelieve the
evidence, for he stopped the case for the prosecution. He considers that, ad-
mitting the facts proved to be true, they do not constitute any offence ; he has,
in other words, mistaken the law. Where a primd facie case is made out, the
Magistrate is bound to commit — Burn's Justice of the Peace, Vol. I., p. 773.
He has no further discretion. [White, J. — Suppose in such a case as this in
England you went before a grand jury, they might throw out the bill. You
might, indeed, go before a second grand jury; but they also might ignore the
bill : would the Queen's Bench compel the grand jury to find a true bill ? And,
if not, the remedy you mention is very incomplete. I doubt whether the reason
why the Queen's Bench won't grant a mandamusy is because there is a remedy
by going before the grand jury.] It is submitted that it is ; and that reason, the
grand jury having been abolished, not existing here, this Court has power to
issue a mandamus. In cases where there is no other remedy the Queen's Bench
does grant it. In a case where there is no other remedy, a Magistrate can be
ordered to grant a summons ; see The King v. The Justices of Kent} [White,
J. — Here the Magistrate has exercised his jurisdiction, and dismissed the case :
that seems to me to be your difficulty.] His action amounts to saying that the law
does not give him power to commit, because there is no ofEence, — that is, he
says he has no jurisdiction; in other words, declines jurisdiction. See 9 Geo.



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 7 of 166)