Karl Heim.

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

. (page 27 of 91)
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 27 of 91)
Font size
QR-code for this ebook


or power to deal with the cafee except this Court.

(4) The circumstances under which alone a further enquiry can

bo ordered have not arisen, and the District Magistrate has
no power or jurisdiction to order a further enquiry.



Digitized by



Google



16 . The Criminal Law Journal Reports. [Vol. Ill

HLA GYI r. EMPEROR.

(5) That when a case has boon committed to Sessions the subordinate
Courts have no power or jurisdiction to take further evidence
except under the provisions of section 219 of the Code of
(Viminal Procedure.

(6) That the order of the District Magistrate is not justified by
section 204 of the Code of Criminal Procedure.

(7) That your petitioner having boon released by order of this Court,

no Court subordinate thereto can arrest your petitioner in
respect of the same offence in the course of his trial for which
(sir) he was released.

(8) That no Court but this (^ourt has any jurisdiction to deal with
this case, nor with the trial of the charge against your peti-
tioner.

These grounds originate from a misapprehension of the real effect
of the Magistrate's order. He has not ordered a further inquiry under
section 437 of the Code, but he has taken cognizance of the oflEonce alleged
against the accused under section 190 of the Code, and has taken action
under sections G5 and 192.

The question is whether he had jurisdiction to do so.

All the grounds are based on the contention sot forth in the first
ground to the effect that proceedings against the petitioner on the same
charge as that on which the District Magistrate made the order complained
of, are still ponding before this Court.

The facts stated in the first paragraph of the petition themselves
controvert this ground.

It is stated that the petitioner on the commitment of the Western
' Subdivisional Magistrate was tried at the last Criminal Sessions of this
' Court and was convicted and sentenced.

On a proceeding under section 12 of the Lower Burma Courts Act,
1900, the conviction and sentence wore set aside, but the accused wjis not
acquitted of the offence charged against him.

Upon the order of committal there was a trial which ended in a record-
ed verdict of guilty of murder, on which judgment of guilty of that offence
was recorded, and sentence was passed.

The Bench of this Court in the proceeding under section 12 of the
Lower Burma C^ourts Act hold that such verdict had not been arrived
at in due course of law, and sot the judgment and sentence aside.

The contention put forward on behalf of the api)licant is that the
proceedings wore regular up to a certain point, and that the proceedings up
to that point not having been sot aside, the trial is still before this Court.
Especially it is said that the original commitment is still in force.



Digitized by



Google



Vol. Ill] The Criminal Law Journal Reports. it

HLA GYI V. emperor;

We "were strongly urgod to keep from our minds what it is open to a
High Court to do under sections 423 and 430 of the Code in a ease
which comes before it on appeal or revision from a Divisional Sessions
Court, on the gi'ound that a trial by a High Court is quite distinct from
a trial by such Court, and section 12 of the Lower Burma (^ourts Act,
and presumably also section 2G of the Letters Patent of the High Courts;
and section 434 of the Code of Criminal Procedure, are self contained.
Yet it was argued that the power given by s. 423 of the ('ode to order a
retrial showed that an order of commitment was valid and subsisting until
there had been a trial which had ended in a finding of conviction or ac-
quittal or in a discharge of the accused.

The argument is somewhat inconse(iuent. It is sufficient to say that
in the present case there was a trial on tlie order of commitment, and that
that trial ended in a conviction and sentence. The order of commitment
was thus satisfied, and nothing more remains to be done on it. The fact
that in cases from a Divisional Sessions Court the C3:le gives power to a
High Court to order a retrial upon an original commitmv^nt cannot affect
the question of whether that order has been complied with by the first trial.
Prima facie and hut ior the provisions of the Code in cases arising in
Divisional Sessions Courts the commitment order is exhausted by a
completed trial following upon it.

Assuming that section 12 of the Lower Burma Courts Act, section 26
of the High Courts Charters, and section 434 of the Code of Criminal
Procedure do not contemplate an order for a new trial being made, when
a Court acting under one of those sections merely sets aside a conviction
and sentence pronounced in a completed trial, which is the present case,
the accused is in the position in which he originally was. The (.^ode itself
in section 273 and section 333 contemplates that after commitment an
accused may be placed in the position of being liable to be i)roceeded
against de novo upon a fresh commitment order, for unJer section 403 aii
entry on -the charge under section 273, and under section 333 a stay of
proceedings, does not amount to an acquittal, unless in the latter case the
Judge otherwise directs.

That being so, it is clear that a Magistrate who for any reason con-
siders it proper that an accused shouhl be further prosecuted, would have
to take cognizance of the case under section IDO. There is no means of
his bringing the ca>e before the High CDurt again unless he do? 4 so. If
he could not do-»o the provisions of section 403 regarding an entry under
se3tion 273 and those of section 33? regarding a stay of proceedings with-
out the order of the Judge not being an acquittal would be futile.
• Those considerations emphasize the fact that even when there has not
been a trial the commitment order may no longer be subsisting.



Digitized by



Google



18 The Criminal Law Journal Reports. [Vol. IH

EMPEROR r. CHAN E.

The main provisions however by which a Magistrate must be guided
in considering whether he has power to take cognizance o£ or to proceed
with a case are those contained in section 403 of the Code of Criminal
Procedure.

If an accused has been convicted or acquitted of an ofEence charged,
or which might have been charged on the same facts, and such conviction
or acquittal remains in force, the accused is not liable to be tried again
for any such offence ; but if the case cannot be brought within that
section there is nothing to prevent a District Magistrate taking cogni-
zance of an offence under section 190 and taking action under section 192
or section 204 of the Code.

Although the Magistrate's order does not show that he clearly appre-
hended what his powers were, and under what sections his action was
justified, it was in fact justified, and there is no ground for interfering
with it in re^asion.

The application is dismissed.



(3 L. B. i?., 93.)

IN THE CHIEF COURT OF LOWER BURMA.

August 21st [CRIMINAL REVISION No. 1045 of 1905.] 1905.

Present : — Hon'ble Mr. H. Adamson, C. S. L, Chief Judge.

EMPEROR r. CHAN E and others.

IM-racs-^pwe^Lower Burma Village Act, 1880^ s, 13 A.

In the absence of a Notification .by the Local Government under sub-section (3) of sectioil
i3A of the Lower Burma ViUage Act, 1889, a f oot-race is not a /^wHor the purposes of that
section.

This case has been submitted for revision by the Sessions Judge of the
Delta Di^^sion.

Two men ran a foot-race for a stake of Rs. 5-8. Two umpires were
appointed. A crowd assembled to watch the race, and there was much
betting on the result. The two umpires, one of the competitors (the other
absconded), and 17 of the spectators were prosecuted for holding an
Tinlicenced pwh under section 13A of the Lower Burma Village Act, as
amended by Burma Act, II of 1904. With the exception of one of the
spectators, all were convicted and sentenced to fine.

The learned Sessions Judge has referred the case with a recommen-
dation that the convictions should be reversed in all the cases except those
of the competitors and the two umpires.

There can be no doubt that the recommendation so far as it goes is
based on good grounds. The spectators, even though they betted on



Digitized by



Google



Vol Hi] The Criminal Law Journal Reports. 19

EMPEROR V. CHAN E.

the result, did not hold, promote, take part in or assist the race. The
umpires and the competitors did, and they only can come within the
provisions of section 13A.

But a further question arises, namely, whether a foot-race is a pwe
as defined in clause (3) of section 13 A, which reads as follows: —

** For the purposes of this section pw^ ordinarily means a puppet show or other thea-
trical or dramatic performance, or a native cart, pony, boat or other like race held for public
entertainment, whether on public or private property."

The remainder of the subsection need not be considered, because the
Local Grovemment have not by notification declared foot-races to be pwh*
Now if a foot-race falls within the definition of pwe it must fall within the
general expression, " other like race." It is difficult to see what likeness there
exists between a foot-race and a boat-race, that would not be found between:
any two races whatever. But it is clear that the words cannot be intended
to embrace all races, without any exclusion. It may be said however that
the likeness consists in the fact that the race congregates crowds and render^
desirable previous police arrangements. Even assuming this view, I do
not think that a foot-race in Burma can be said to be of a like kind to
a pony-race or a boat-race, or a cart-race. Races of those three kinds
have from time immemorial been recognized public entertainments in Burma,
at which village often competes against village, and even township against
township. Custom has attached special publicity to them. They are
notoriously public gatherings, at which it may be expected that large crowds
wiU assemble. The legislature with the view of regulating such gatherings,
has included them in the definition of pici, and has required that they
should not be held without license. But a foot-race is ^n entirely different
matter. It is not, so far as I am aware, a recognized form of public
entertainment in Burma. I must confess that until the present case I have
never heard of a foot-race as a Burma entertainment, except in the way
of school sports. In standard works descriptive of Burma and its people,
cart-races, pony-races, and boat-races, are described among the entertain-
ments of the people, but there is never a word about a foot-race. So that
even if publicity be taken as the test of likeness, it cannot be said that a foot-
race in Burma is like to a cart-race or a pony-race or a boat-race. On these
gronnds I must hold that a foot-race does not fall within the definition of a

It may be that in certain local areas foot-races are coming into fashion,
and that control over them is as necessary as in the case of cart, pony or
boat races. If so, it is open to the executive under the last portion of clause
(3) of section 13 A to declare them by notification to be ptck in such local
areas. But in the absence of such a declaration it cannot be held that they
are pwh as defined in the Village Act*



Digitized by



Google



20 The Criminal Law Journal Reports. [Vol. IH

EMPEROR r. KYAW DUN.

The convictions of all the accused arc reversed,- and the fines will be
refunded.



(3 L, B. R., 94.)
IN THE CHIEF COURT OF LOWER BURMA.
July 17th [CRIMINAL REVISION No. 722 of 1905.] 1905..

Present : — Hon'ble Mr. Harvey Adamson, C. S. I., Chief Judge.
EMPEROR V. KYAW DUN.

Durma GaiuhUnQ Arf^ 1899, section ll—ettidenco—an'est—proceilHrc—Cr'imxnal ProcnUre
Code, sectioM 55, 112, 114, lU.

Section 53 of the Cotle of Criminal Pro^c.lure, 1898, doci not empower the Police to
arrest persons who are saspectotl of earning their livelihood by unlawful gaming.

Mr. McDonnell^ Assistant Government Advocate.

There is a considerable amount of irrelevant hearsay evidence in this
case, but there is some evidence that accused earned his livelihood by unlawful
gambling, and there is some evidence of repute. As the accused has not
exercised his right of appeal, I will not interfere in revision with the
Magistrate's order.

I think that the witnesses would have given more relevant evidence
if they had been properly questioned. The Magistrate's attention is
directed to Ktng-Kmperor v. Xga Since U (1) in which it is shown
how evidence of repute should be elicited. The arrest of the accused was
illegal. Apparently the Magistrato gave executive sanction to the institn-
tion of proceedings, and the Police, arm?d with this sanction, arretted the
accused under the provisions of section 55 of the Code of Criminal Proce-
dure, and sent him up for trial.

Section 55 of the Code of Criminal Procedure doo=* not empower the
police to arrest persons who are suspected of earning their livelihood by
unlawful gaming.

The Magistrate should have acted under the provisions of sections 112,
114 and 115 of the Code. That is to say, he should have made an order in
writing setting forth the particulars required by section 112 and summoned
the accused to appear in accordance with section 114, at the same time
attaching to the summons a copy of the order under section 112, as requir-
ed by section 115.

(1) (1903) 2 L. B. R., les.



Digitized by



Google



AToL IIIJ ^ The Criminal Law Journal Bkports. ;^1

EMPEROR V. NGA PYX.

(3 L. B. K, 95.)

IN THE CHIEF COURT OF LOWER BURMA.

June 20 [CRIMINAL REFERENCE No. 18 of 1905.] 1905.

Present : — Hon'ble Mr. Harvey Adamson, C.S.I., Chief Judge, and
Mr. Justice Fox.

EMPEROR V. NGA PYI.

(riininal Pi'jceiuve Cid.*, sscthn 562 — jffchctui to which applicable.

The wonls ** theft," " dishonest mi appropriation," and " cheating " as used in section 6C2
of tb3 Code of Criminal Procedure, 1898, iadulo only tho off jaces punishable under sections
^79, 403 and 417 re<<poctively of the Indian Penal Cole and not those punishable under sec*
tions 381 and 382, 401 and 405, and 418 to 420.

The following reference was made by Mr. Justice Irwin to a Bench :—

The finding is not recorded with the precision required by section 367
(2) of the Code of Criminal Procedure but comparing the judgments with
the charge it is clear that accused was convicted of an offence punishable
under section 420, Indian Penal Code.

It seems to me not very clear whether section 562 of the Code of Cri-
minal Procedure applies to the aggravated form of cheating made punbh-
able by section 420.

The ?e3tion applies generally to offences punishable under the Penal
Code with not more than two years' imprisonment. Besides these, four
offences are specially mentioned. Of these four, theft and theft in a house
ure punishable with more than two years' rigorous imprisonment, and that
seems to be the reason why they are specially named. Dishonest misappro-
priation in its simplest form is punishable only with two years under section
403, an aggravated form of it under section 404 with more than two years.
Cheating is punishable with only one year under section 417, aggravated
forms of cheating under sections 418, 419 and 420 with more than two
years. Thus there seems to be no reason for mentioning dishonest mis-
appropriation and cheating by name in this section unless the aggravated
forms are intended to be included, the simple forms of both offences are
included in the general description of offences punishable with not more
thun two years' imprisonment. There would be no diflSculty about the in-
terpretation of the section but for the mention of one, and only one of the
•aggravated forms of theft from which the natural inference is that the word
"theft" in the section, where it first occurs, means only simple theft
punishable under section 379. If " theft " be construed in this way, why
should " dishonest misappropriation " and " cheating " be construed in a
different way ?

Under section 11 of the Lower Burma Courts Act I refer to a Bench
the question >vhether section 562 of the Code of Criminal Procedure applies



Digitized by



Google



22 The Criminal Law Journal Reports. [Vol. ni

EMPEROR r. PAN ZI.

to the ioffence of cheating and thereby dishonestly inducing the person
deceived to deliver property, under section 420 of the Penal Code.

The opinion of the Bench teas as follows : —

Adamson, C. J. — It is not easy to understand why the offences of
theft, theft in a building, dishonest misappropriation, and cheating have
l)een grouped together at the commencement of section 562 of the Code of
(Criminal Procedure, and followed by a clause embracing all offences under
the Indian Penal Code punishable with not more than two year's imprison-
ment. Dishonest misappropriation in its simple form is punishable with
two years' imprisonment, and cheating in its simple form is punishable with
.one year's imprisonment, and both of these offences would have been pro-
vided for by the section even if their special mention had been omitted.
It is, however, clear that " theft " can only mean simple theft, otherwise it
would not have been followed by " theft in a building." And if theft can-
hot be regarded as including aggravated forms of theft, it seems to me that
there can be no warrant for regarding dishonest misappropriation and
cheating as including aggravated forms of these offences. I think that es-
pecially after the guide that is afforded by the words " theft " and " theft
in a building "we are obliged to construe the words that follow in accord-
ance with the strict meaning that is given to them in the Indian Penal
Code, and that we are not at liberty to speculate on the intention of the
Legislature, and to construe the words according to our own notions or
what ought to have been enacted. I would therefore say that " cheating "
only includes the offence punishable under section 417 of the Indian Penal
Code, and I would answer the question referred in the negative.

/W, J. — I concur in answering the question referred in the negative.

(3 L. B. R., 96.)

IN THE (JHIEF COURT OF LOWER BURMA.

Juno 22 [CRIMINAL REVISION No, 792 of 1905] 1905.

Present ;— Hon'ble Mr. Harvey Adamson, C.S.I., Chief Judge.

EMPEROR r. PAN ZI.

Zjtci'r Burma V'tllage Act^ 1S89, section 9 (2).

A breach of rules matle by the Commissioner under section 6 (I) of the Lower Barma VU-
lage Act, 1889, does not justify a conviction under section 9 (2) of the Act To support such
a conviction, it must be provetl that the headman made a certain requisition to the accused,
and that the accasetl refused or neglectcil to comply with it.

The accused has been convicted under section 9 (2) of the Lower
Burma Village Act, of eating the flesh of a bullock that died of small-pox,
and has been fined Rs. 10. The proceedings show an utter misconception
of the provisions of that section.



Digitized by



Google



Vol IIIJ . The Criminal Law Journal Reports. 23

po WA V. emperor.

In referring the case the learned Sessions Judge has remarked :—

" I would suggest that Magistrate be instructed by a printed judgment
as to the interpretation of section 9 (2) of the Village Act. Magistrates
are inclined to act as if section 9 (2) attached a penalty to the breach of
any rules made by the Commissioner under section 6 (I) of the Act, where-
as it only does so indirectly and incidentally, in cases where in breaking
any of these rules, the person in fault also fails to comply with a requisi*
tion duly made by the headman under section 9 of the Act."

This is a correct exposition of the law. The essence of an offence
under section 9 (2) of the Village Act, is refusal or neglect to comply with
the requisition of a headman. Certain rules have been issued by competent
authority prescribing the duties of headmen. But they cannot be treated
as a Penal Code, for the breach of which any villager can be convicted.
It must be proved to support a conviction under section 9 (2) of the Village
Act that the headman made a certain requisition to the accused, and that the
accused refused or neglected to comply with it.

The conviction is set aside and the fine must be refunded.



(3 L. B. i?., 109 ; 11 Bur. L. i?., 293.)

IN THE CHIEF COURT OF LOWER BURMA.

June 27 [CRIMINAL REVISION No. 787 of 1905] . 1905.

Pr^^^n^'— Hon'ble Mr. H. Adamson, C.S.I., Chief Judge.

PO WA r. EMPEROR.

Examination of witnesses— ctots-examimtion— 'practice.

In criminal cases, it is customary for the cross-examination of each witness for the defence
to he made immediately after his examination-in-chief, and not postponed till after the exami-
Tuition-in-chief of all the defence witnesses. This practice should not be departed from against
the wishes of the accused, and to his possible prejudice,

Mr, Pennell — for the applicant.
Mr. Mcdonnell, Assistant Government Advocate.

This is an application under section 526 of the Code of Criminal
Procedure for the transfer of a case from the Court of the District Magist-
rate of Rangoon on the ground that such transfer is expedient for the ends
of justice.

The case had reached the stage of examination of the witnesses for the
defence. When the examination-in-chief of a certain witness had been
concluded, the Government Prosecutor applied for leave to reserve his
cross-examination until the examination-in-chief of certain other witnesses
for the defence had been completed. The learned Counsel for the accused
objected to this course, but the District Magistrate overruled the objection,
and granted the permission applied for.



Digitized by



Google



54 'The Criminal Law Journal Reports. {Vol. Ill

PO WA %\ EMPEROR.

•It is urged that the course adopted hy the District Magistrate is pre-
judicial to the defence, because the accused's advocate is not in a position
to exercise his discretion as to calling further evidence in respect of the
same set of facts until he has heard the cross-examination of the witnesses
whom he has already caHed.

The learned advocate for the applicant however states that he does not
desire the transfer of the case, provided that tlie Magistrate adheres to the
ordinary practice, which is to cross-examine each witness inunediately after
his examination-in-chief.

I will tlierefore treat this case as an application for revision of an in-
terlocutory order. That the High C^ourt is comj)etent at any stage of a
case to interfere to exercise its powers of revision, has been ruled in Chandi
Pershad v. Abdur Rahman (1), Alnlool Kadir Khan v. The Magistrate of
Pnrneah (2) and Queen- Empress v. Sageshappa Pai (3).

Section 135 of tlie Evidence Act provides that the order in which wit-
nesses are produced and examined shall be regulated by the law and prac-
tice for the time being relating to civil and criminal procedure respectively,
and in the absence of any such Jaw by the discretion of the Court. Sec-
tion 138 provides that witnesses shall be first examined-in-chief, then cross-
examined, then re-examined.

The only case to which I have been referred, or which I can find,
bearing on the subject, is a civil case, Kedar Xath Ghose v. Bhupendra
Xath Base (4). In that case the first witness called was not the plaintiff,
but the plaintiff was a witness in the case. At the close of the exami-
nation-in-chief of the first witness, the defendant^ Counsel asked that the
cross-examination should be deferred until after the examination-in-chief
, of the plaintiff. The learned Judge held that the ordinary practice should
regulate the order of examination, and that the witness should be cross-
examined at the conclusion of the examination-in-chief.

I think that the view taken by the learned Judge applied with strong-
er force to a criminal than to a civil case. The practice undoubtedly is to
cross-examine immculiately after the examination-in-chief. The reasons
given by the learned advocate for thinking that the course adopted bv the
District Magistrate would prejudice the defence, are not in my opinion
very strong, but I am not prepared to say that they are altogether ground-
less. The learned Assistant Government Advocate states that the course
was adopted because ]>y adopting it there was a greater likelihood of getting
at he truth. Eut I think that in matters connected with the defence the
ordinary practice should never be departed from, if such departure c^n in
any possible way prejudice the defence, and if the accused objects to it.

(3) (IHIK,) I. L. R., 20 Bom., r,43. ^ (4) (,0(K0 5 C. W. N., xv.



Digitized by



Google



Tol. Ill] The Criminal Law Journal Reports. 25



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 27 of 91)