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The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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IMP. r. MUSO wd. MATO and others.

Section 250^ Criminal Procedure Code,
It is both irregular and illegal for a Magistrate acting under section
250, Criminal Procedure Code, to issue notice to the complainant, who
happens at the time to be in jail for another offence, calling upon him to
appear before him at the expiry of the sentence he is undergoing or dis-
pensing with his attendance.

Jan. 19 [CRIMINAL REVISION No. 16 of 190(5,] 190C.

IMP. r. SANGAT and others.

Section 239i Criminal Procedure Code^ and section 883 j L P. Code,
Where persons owning lands on both sides of a road were accused of
having let the water on their own land overflow the road, and had been
charged with an offence punishable under section 283, I. P. Code,

Held they could not be jointly tried ; held^ further, that, as it appeared,
there had been a big inundation and the accused could not have helped the
water flowing off their land, they had not been rightly convicted.

Jan. 22 [CRIMINAL REVISION No. 117 of 1905.] 190C.

IMP. r. ARAB wd. MAURUF.

Act XIII of 1859 and sectim 528, Criminal Procedure Ck»de,

Where a District Magistrate, acting under section 526, Criminal Pro-
cedure Code, had transferred a complaint undr Act XIII of 1859 from the
Court of the Magistrate within whose jurisdiction the complainant resided,
and the agreement had been entered into, on the application of the accused,
'without notice to the complainant.



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190 The Criminal Law Journal. [Vol. Ill

IleU, on the application of the complainant, which alleged, first, that
the Act being for the benefit of the employer, his convenience ought to
have been first consulted, and that the transfer should not have been made
without notice to him, that both the grounds were valid, and the order of
transfer should be set aside.

Jan. 22 [CRIMINAL REPORT No. 45 of 1905.] 190C.

IMP. r. MANGIA xcd. GANGIA and another.

Sn^ioH 325, 1. P. Cod*.

On a conviction for the offence of grievous hurt, punishable under
section 325, a sentence of fine only is not legal. It should include some
term of imprisonment.

Jan. 30 [(CRIMINAL APPEAL No. 77 of 1905.] 190<;.

IMP. f. WALI MUHAMMAD.

S-rffVm 300, 1, p. CMf.
No rule of universal applicability can be laid down for deciding be-
tween classes of provocation, and declaring this to be and that not to be
grave and sudden enough to fttlfil the requirements of the exception.
AVhat is grave and sudden must in each case be a question of fact, to be
answered upon the facts of the particular case. But the criterion of
gravity could certainly never be affected by consideration of seatimentel

morality.

Held, therefore, that detecting a mistress in the act of infidelity may,
in certain circumstances, amount to provocation grave and sudden enough
to reduce the offence from murder to culpable homicide not amounting to

murder.

Crorcn vs. Karim Bahh wd. Shah Baksh (Sind Sadar Court Reports

1899, p. LXXVI) commented on.

Feb. U \(mmmAL revision No- 98 of 1905.] 1906.

IMP. f. BUDHO tod. 6HULAM and another.

Sfeti0n 340, Criminal Procedure Code,
ffeld that it is illegal for a Magistrate to whom a case has been snb-
mitted under section 349, Criminal Procedure Code, to transfer it to another
Magistrate for disposal.

Feb. 10 [CRIMINAL REVISION No. 13 of 190G.] 1906.

IMP. r. ALAHBACHAYO «•/. PUNU.

.%.<*;<,» m. J. P. Code, and teetion 164, Crimiml Procedure Code.
Held that a statement properly recorded by a Magistrate under section
164 Criminal Procedure Code, is evidence in a stage of judicial proceeding,
and'can be made the ground of a charge in the alternative under section

193, I. P. Code.

Crown vs. Gor'i wife of Khair Muhammad, Sind Sadar Court Roportsi
1898, p. 68, and Crown vs. Lahru, Sind Sadar Court Reports, 1902, p.

194, discussed.



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Vol III] The Criminal Law Journal. 191

Feb. 15 [CRIMINAL REPORT No. 4 of 1906.] 1906.

. IMP. V, Mussammat SABUL and others.

SrcthM250and439, Ciuvunal Procedure Cbde,

Before quashing an order nnder section 250, Criminal Procedure
Code, for illegality of inadequacy, it is not necessary to issue notice to the
accused who have been compensated, as it is not an order prejudicial to
them in the sense in which the word is commonly used.

March 2 [CRIMINAL REVISION No. 15 of 1906.] 1906.

IMP. V. ALAHYAR alias YAR MUHAMMAD wd, PIR BAKHSH

and five others.

Seetiom 435 and 439^ Criminal Procedure Code,

The interference of Courts of revisional authority is guided by well
established general principles. They will not ordinarily interfere upon
mere technicalities, but must be satisfied that, unless they do, substantial
injustice will be done.

Held in this case that the exclusion from consideration, bv the Judge
of appeal, as inadmissible, of the deposition of a witness, which was admit-
tedly irrelevant and had been wrongly admitted by the trying Magistrate,
without directing in the circumstances, the examination of the witness, in
the case, was not a sufficient ground for interference, when it appeared
that, in taking the view he did, he would not have been influenced to any
appreciable extent by the irrelevant evidence which he excluded from his
consideration.

Heldy further, in this case that misappreciation of evidence is a
ground upon which this Court is slow to intervene. There must be a clear
case of misappreciation to induce it to do so.

March 2 [CRIMINAL REVISION No. 20 of 1905.] 1906.

IMP. r. GUL W. BACHAL.

Section 379, /. P. Code.

Where, as in this case, the proof against a person accused of the ofPence
of theft amounts only to this — ^that he knew where the stolen property
was and pointed it out.

Held that he cannot be rightly convicted of that offence.

March 3 [CRIMINAL REPORT No. 5 of 1906.] 1906.

IMP. V. WADHUMAL GANGUMAL.

Section 447, L P. Code, sections 43S and 439, Criminal Procedure Code,

Accused had gone into the court-yard of the complainant with a
bailifiE of the Subordinate Civil Court in order to serve a summons on the
complainant's mother, and been convicted of an offence punishable under
section 447, 1. P. C. The Magistrate who tried him found there was tlie
requisite intention to insult. The District Magistrate, who made the refer-
ence, was of opinion that the facts disclosed on the record did not warrant
that finding.

Held it must always be a question of nicety to say with what inten-
tion in a case of this sort the entry was made, and this Court as a Court of
Revision and Superintendence would not in such circumstances interfere*



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192 The Criminal Law Journal. f^oJ- ^^

March 3 [CRIMINAL REVISION No. 10 of 1906.] 1906.

IMP. V. ALAH BAKHSH wd. MANGHAN.

Section 01 of AH 1 II of 1879.

Punishment under Act VII of 1879 cannot properly be inflicted, when
the offence falls within the definition of mischief under the Indian Penal
Code.



March 3 [CRIMINAL REVISION No. 31 of 1906.] 1906.

IMP. V. SAHIJRAM KHIAMAL.

SeetioHS 43S, 436 and 439, Crimnal Procedure Code,
Accused had in this case been charged with ofEences punishable under
sections 331, and 304, I. P. Code, exclusively triable by the Sessions
Court, and was discharged by the Magistrate who held the preliminary
enquiry into the case. On an application being made to the Sessions
Court under section 435, Criminal Procedure Code, enquiry into the case,
and after such enquiry to commit the accused for trial before him on the
above charges. The accused then applied to the Sadar Court for the
revision and setting aside of the order of the Sessions Judge.

Held^ rejecting the application, that, although it is impossible to lay
down any hard-and-fa^t rule as to the limits within which a Magistrate
is competent to appreciate the evidence he has taken in respect of an
offence triable exclusively by the Sessions Court, it is a sound general
principle, favoured by the English law, that, where there is evidence
connecting the accused person with the crime, evidence which, if laid
before a Judge and Jury, might and probably would.be left to the Jury,
then the Magistrate's proper course is to commit and not to take upon
himself the function of the superior Court.

IleliU further, that the Sessions Judge had no power to order further
inquiry and at the same time to order committal.

March 20 [CRIMINAL APPEAL No. 82 of 1905.] 1906.

IMP. r. KHUDA BAKHSH xjod. UMED ALL

Section 297, Crhni/ial Procedure Chde.
Held that, in charging a Jury while a Judge may state what hi«
opinion of the evidence is, he should be careful not to do so in such a way
as to practically dictate his conclusion to the Jury. To say, for example,
" that the proved facts clearly show," &c., is taking upon himself the
peculiar function of the Jury. For it is they, and not he, wno must decide
what facts are and what are not proved.

April 2 [CRIMINAL REVISION No. 121 of 1905.] 1906.

IMP. r. RE WO AND OTHERS.
Sretion 7 of Bomhay Gamhling Act (IV of 1887).

It may be doubted if the presumption under section 7 of the Act has
over much material bearing on particular cases.

Held that, if instruments of gambling are found in a house and
persons are gambling there, these are facts which, with or without the
section, would be evidence against the accused requiring rebuttal. What
weight should be given to them depends on each case as a whole. WherjP
the house has been entered duly under a legal warrant, they might carry
more probative force.



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Vol. Ill] The Criminal Law Journal. 193

STATEMENT OF CRIMINAL RULINGS BY THE SADAR
COURT OF SIND FOR THE MONTH OF MAY, 1906.

May i [CRIMINAL REVISION No. 3G of 1906.] 1906.

IMP. r. CHANDAN and others.

Section 5 of Bombay Prerention of Oamhling Act (IV of 1SS7),

Held in this case that, as the place where the alleged gambling was
going on was not a common gaming house, the conviction of the accused
under section 5 o£ Act IV of 1887 was illegal, and should be set aside.

May 15 [(CRIMINAL APPEAL No. 15 of 1906.] 190fi.

IMP. r. YARU wd. MEWO.

Section 133^ Itidian EHdence Act,

Although a conviction based on the uncorroborated testimony of an
approver is not by the law of India illegal, its validity depends upon the
degree of trust that can bo reposed in the approver.

The rule that, before an approver's testimony can be made the legal
and su^cient foundation of a conviction, it must be corrol)orated in material
particulars by independent and reliable evidence touching not only the
commission of the crime but the identity of each of the accused charged
with its commission, and the part taken by each, is certainly not a part
of the law ol this country. Applied strictly, it dispenses altogether with
the need of an approver or offering pardon for the sake of obtiiining his
evidence.

It certainly, however, is a rule of prudence, which all Courts would
do well to strictly observe, that an approver's evidence is necessarily
tainted, and should be treated with caution. It is not, according to the
best legal authority, safe to act upon it, unless it is substantially corrobo-
rated in material particulars which show that the approver is not only
speaking the truth about the commission of the crime (for of that he must
be plainly cognizant, if he is really an approver), but also about the part
which the accused person took in it.



DISQUALIFICATION OF JUSTICES ON THE GROUND OF
PECUNIARY INTEREST.

An incident which we recorded at p. 174, ante^ would seem to show
that the strictness of the law as to the disqualification of justices on the
ground of their interest in the subject matter of proceedings before them
is not so generally appreciated as it ought to be. In the case to which we



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; 194 The Cuihinal Law Journal. [Vol. Ill

refer, a magistrate, sitting at a well-known police court, adjudicated upon
two summonses for defrauding a railway company. At the close of the
hearing of the second summons he alluded casually to the fact that he was
•himself a shareholder in the particular company, and was apparently a
good deal surprised at being told by the clerk that ho was in consequence
disqualified from adjudicating upon cases to which the company was a
party. It is almost superfluous to point out the importance, both on puMic
and private grounds, of the law upon this point being rigidly observed.
;In the first place it is essential to preserve the administration of justice
not. merely from any taint of bias or impartiality, but also, as far as pos-
sible, from any suspicion of such taint ; and secondly, if but one of a
number of justices who adjudicate upon a matter is in fact disqualified
*from so doing, the whole proceedings are vitiated, and any decision given
by them may be quashed on that ground, with the result that, if their
order has been enforced, they may find themselves exposed to the expense
and annoyance of an action for trespass.

The interest which disqualifies a justice, and, indeed, any person in a
judicial position, from adjudicating upon a matter is, according to the
usually accepted clas.sification, two-fold, viz., pocuniary interest, and interest
on grounds other than pecuniary, such as personal feeling or bias. It is
with certain kinds of pecuniary interest that we are at present concerned.
The rule upon the point is clearly stated by Stephen, J., in i?. v. Farrant
(18^7), 20 Q.B. 1). 58, in the following words : "It is a leading principle
of English law that no one is allowed to be a judge in his own case ; that
means that the least pecuniary interest in the subject matter of the litiga-
tion will disqualify any person from acting as judge." The most familiar
illustration of the working of this rule — as also of the truth of the boast
tliat our law is " no respecter of persons" — is the reversal of Lord Chan-
cellor CottenhaiHS judgment in the case of Dimes v. Grand Junction Canid
(1852), 3 //. L. C. 759. In the course of the prolonged litigation carried
on by Mr. Dimes against this company, he appealed against a decree of the
Vice-Chancellor. The appeal was heard by the Lord Chancellor, who had
apparently forgotten that he was the holder of some shares in the defen-
dant company, and who affirmed the decision. Sul)se(iuently the plaintiff,
on discovering the facts, appealed to the House of Lords, who were unani-
mous in holding that the Lord (>hancellor's judgment must be set aside
on the ground of his interest ; and we are told by a recent biographer that
it was commonly said that Mr. Dimes killed Lord Cotfenham by the worry
which he caused him. The latter was indeed already dead at the date of
the Lords' decision; but in justice to his niemDry it may be added. that,
when they themselves came to consider the original decree on its merit,
they aflSrmed it as he had purported to do. The rule applies, of course,
to the case of a justice who is a shareholder or stockholder naiuy



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Vol. Ill] The Criminal Law Journal. 19i

company which is a party to a matter before him ; but, for obvious reasons^
its effect is most often felt in railway cases. As long ago as 1863, a con-
Tiction for travelling without a ticket was quashed because some of the
Justices were shareholders in the company, and therefore interested in enfor-
cing the purchase of tickets (/?. v. Hammond (1863), 27 J. P. 793) ; and
in many localities it is by no means easy to procure the attendance of"
Justices qualified to hear such cases. It must, however, be remembered
that if a person who is under disqualification states precisely to the parties
the nature of his interest in the matter, and they raise at the time no
objection to his adjudicating, it will be too late for them to attempt to do
so after ho has given his decision. (7?. v. Kent JJ. (1880), 44 J, P.
2t)8.)

Another kind of pecuniary interest is that which every rate-payer has
in questions relating to any rate or fund to w hich he is liable to contri-
bute, or by which he may be benefited. At common law such interest is
sufficient to disqualify. Thus we find reported an instance in which a
deputy-recorder's decision on a mere question of taxation of costs was
quashed because he was a rate-payer contributing to the common fund of
the respondent union (/?. v. Cambridge Becorder (1857), 8 E, Sf B. 637) ;
and in another case the decision of sessions upon a rate was quashed on
the ground that some of the justices adjudicating were partners in a bank-
ing company which owned property assessed to the same rate in the occu-
pier's name (R. v. Cheltenham Commissioners (1841), 1 Q. B. 467^.
The rigour of the common law has, however, been cDnsiderably relaxed
by special provisions in the case of disqualification arising out of the pay-
ment of rates. Thus the combined effect of 16 Geo. II. c. 18, ss. 1, 3 and
27 & 28 Vict. c. 39, s. 6, is that justices may adjudicate in petty and
special sessions in matters relating to " parochial taxes, rates, and levies "
notwithstanding that they are themselves rated to or chargeable with such
taxes, rates, and levies within the parish, township or place affected by
their decision (E.r parte Workinr/ton Overseers. [1894] 1 Q. B, 416^,
whilst in quarter sessions they are no longer disqualified from hearing
poor rate appeals merely because they are rated in some parish in the
union other than that for w^hich the rate appealed against is made. So,
too, section 258 of the Public Health Act, 1875, allows a justice to act in
cases arising under that statute notwithstanding that he is a member of a
local authority or is one ol several rate-payers or persons liable, in common
with the others, to contribute to, or to be benefited by, any rate or fund
out of which any expenses to be incurred by such authority are to be de-
frayed. Similarly, in boroughs a justice is not to be disqualified from
acting in the execution of the Municipal Corporations Act, 188:^, " by
reason of his being liable to the borough rate." (Section 158 (2) ). In



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1% Thb Criminal Law Journal^ f^^l'in

the Metropolis corresponding provisions are to be found in the Metropoli-
tan Police Acts, the Public Health (London) Act, 1891, and the Metro-
polis. Water Act, 1902. The Gasworks Clauses Act is another statute of
general application which contains an enabling clause, section 46 provid-
ing that no justice is to be disqualified from acting in the execution of the
Act by reason of his being liable to the payment of any gas rent or other
charge thereunder. Again, no justice is to be disqualified from acting
Tinder the Licensing Acts merely because he is interested in a railway
company which retails intoxicating liquors, nor under the Salmon Fishery
Acts because he is a conservator, or a subscriber to some society for the
protection of salmon or trout.

The above is, we believe, a complete list of the statutory provision*
which have modified the rigour of the common law rule with regard to
disqualification on the ground of pecuniary interest. Unless a case can te
brought within one or other of such provisions the rule still applies in all
its strictness ; thus in R. v. Gaisford, [1892] 1 Q. B. 381 ; 50 J. F. 247,
a conviction for obstructing the highway, upon a summons tak^n out by
the district surveyor, was quashed upon the ground (inter alia) that one of
the justices was a rate-payer in the parish and so pecuniarily interested in
the result of the summons, the matter not being one concerning the
" repair of highways . . . parochial levies, taxes, or rates" within the
meaning of IG Geo. II. c. 18, s. 1, nor yet a matter arising under the ]

Public Health Act, 1875. It must be remembered too that a provision j

removing a disqualification on the ground of pecuniary interest has no
effect upon any other ground of disqualification. Thus a fishery conser-
vator, who is himself a party to a resolution to prosecute an offender,
cannot adjudicate upon the summons notwithstanding the enactment
above referred to, for he is regarded as personally interested in its result.
{li. V. ITenlef/, [1892] 1 Q. B. 504 ; 5G J. P. 391.)—/. P.



THE LAW OF THE VAGABONDS.

A vagabond is thus defined, namely, one who wanders from place to
place, having unfixed dwelling, or not abiding in it, and usually without
the means of honest livelihood ; a vagrant, a tramp or other worthless
person or rascal. The word vagabond appears in Holy Writ, " A fugitive
and a vagabond shalt thou be in the earth." — Genesis IV. 12.

In English and American law the term vagabond is used in a bad
sense, denoting one who is without a home, a strolling, idle, worthless
person* Vagabonds are described in old English statutes as " such as
W4ike on the night and sleep on the day, and hfiunt cqstomdble taverns and



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Vol. inj The Criminal Law Journal. 197

ale honses, and routs about ; and no man wot from whence tfiey came, nor
whither they go." In the American law the term "vagrant" is employed
in the same sense. The phrase " rogues and vagabonds " is applied at the
present day to a large class of wandering, disorderly or dissolute persons.
They were formerly punished by being whipped and having the gristle of
the right ear bored with a hot iron. The earliest known race of vagabonds
were the gypsies who came originally from India and entered Europe in
the fourteenth or fifteenth centuries, and are now scattered over Turkey,
Russia, Hungary, Spain, England, etc., living by theft, fortune-telling,
horse- jockeying, tinkering, or any other means by which they can pro-
cure a livelihood excepting hard work.

The poet Dryden very cleverly describes a rogue in the following
lines :

" 'Tis no scandal grown,

For debt and roguery to quit the town."

See, also, Pope :

" The rogue and fool by fits is fair and wise."

The following quaint and curious law is found on the statute books of
the State of Massachusetts :

" Revised laws, chapter 212, section 61, reads as follows : A person
who is known to be a pick-pocket, thief or burglar and having no visible or
lawful means of support, if found prowling around any steamboat landing,
railroad depot, banking institution, broker's office, place of public amuse-
ment, auction room, store, shop, crowded thoroughfare, car or omnibus, or
at any public gathering or assembly, shall be deemed a vagabond, and
shall be punished by imprisonment in the house of correction for not less
than four nor more than twelve months."

A statute relating to the punishment of incorrigible rogues has long
been in force in Great Britain. (5 George IV., chap. 83, sec. 5).

The leading English decision on the law of vagabonds is the case of
Beffina v. Clark (14 Q. B. D. 92, 16 Cox C. C. 666, 54 L. J. M. 0. 66).

The above case decides " that suspected or reputed thieves visiting
public places with intent to commit a felony, but being merely once in the
street, though with intent to commit a felony, does not constitute the
oflFence covered by the statute." In other words there must be some overt
act or unsuccessful attempt to commit some crime. To hold otherwise
would be to lay down a doctrine of " constructive criminality," and would
strike at the very roots of civil and religious liberty and the spirit of free
institutions. The style of the above opinion is judicial and the logic and



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198 The Criminal Law Journal. [_Vo1. Ill

legal reasoning o£ the subject matter is to my mind unanswerable. It is
written in that easy, flowing and graceful style which characterizes almost
every English decision.

This act was passed to protect the public in crowded cities an J on
public occasions, but the framers of it did not foresee the injustice and
hardship of it, namely, four to twelve months for merely walking the
street. It can be made a life sentence at the whim and pleasure of police,
and in many instances it has been a convenient instrument of oppression.
A man released from prison, if only for the first time, is sent forth with
the " mark of Cain " upon his brow, and is for ever an outcast among his
fellowmen. This is contrary to the teachings of all reformers of the
civilized world at the present time.

To obtain a conviction under this act, the government must make
bad character a part of its original case. This it cannot legally do under
the Massachusetts decisions which hold character sacred, and the initiative
must be taken by the accused. If the government, to prove an essential
part of the complaint, is required to take the initiative in the production
of bad character, then the whole proceedings are unconstitutional, and the



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 24 of 91)