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 38 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 38 of 91)
Font size
QR-code for this ebook


such an onler which a District Superintendent of Police can legally paws at all,- nor one which
he can pass in the alternative under Sec. 7 of the Act ; and no conviction under Sec. .29 of t^>e
Act, for disobeying such an order, U maintainable.

Revision under Sec. 439 of the C'riminal Procedure Code.

Proceeding under Sec. 29 of Act V of 18G1, Bengal Police -Act. . ^

The facts of the case aj)i)ear from the judgment.

Bahu Bidu BhusJtan Ganguli for the Petitioner,

The Deputy Legal Remembrancer (Mr. Douglas White) for the»CV»wh.

The judgment of the Court was delivered by

Rampini^ J. — This is a Rule, calling upon the Magistrate of the Dis-
trict to show cause why the order of the Deputy Magistrate of Jessore,
convicting the applicant under section 29 of Act V of 18G1; B. C, and
sentencing him to pay a fine of Rs. GO or, in default, to undergo simple
imprisonment for one month, should not be ^et aside.

It appears thatior some reason or other, the District Super in teixdcAt
of Police at Jessore suspended the applicant, pending an enquiry into a
certain matter, and he also ordered him to remain, until further orders,
in the lines all day and all night, excepting two hours during the day-
time.

The learned pleader for the applicant contends that these cumulative
punishments were contrary to the provisions of the Act, which only permit^
j>he District Superintendent of Police to suspend any Police officer or to
order him to be confined to quarters for a term not exceeding 15 days.

The learned Deputy Legal Remembrancer, who appears on behalf of
the Crown, argues that the api)licant was suspended, not as a punishment,
but merely for the period during which the enquiry which was being held
against him should last. But we have not been referred by him to any
section other than section 7, which entitles the District Superintendent
of Police to suspend officers. Then, it has been urged that the order of
the District Superintendent of Police, directing the applicant to remain
in the lines all day and all night, excepting for two hours in the day-time



Digitized by



Google



Vol. Ill] The Criminal Law Journal Reports. Ill

JOHAN SUBRANA r. EMPEROR.

was not confinement to quarters within the meaning of section 7. It seems
to have been an order for confinement, exceeding the limits laid down in
clause (h) of section 7, because confinement under that clause cannot
exceed 15 days. The order complained of is an order confining the appli-
cant to the lines for an unlimited period of time.

We think, in the circumstances of the case, that the order of the Dis-
trict Superintendent of Police, confining the applicant to the lines for an
unlimited period was not a legal order which he could pass at all, or one
which he could pass in the alternative under section 7 of the Act, and, in
our opinion, the applicant should not have been convicted under section
29 of Act V of 1861, B. C. We accordingly set aside the conviction an^
sentence and direct that the fine, if paid, be refunded. '

liule made ahsolute.



(2 C.L.J.,618.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Aug. 28, 30. [CRIMINAL REVISION No. 771 of 1905.] 1905.

Present : — Mr. Justice Rainpini and Mr. Justice Mookerjee.

JOHAN SUBRANA v. EMPEROR.

aide of Cnimnal Procedure (Act V of 1898) Sees. 233, 537— Joinder of charges— At-
tempts to cheat, on, different dates, different, Ulegalitij— Defect, if cvred -Sereral charges, if
necessary,

A joinder of two offences committed on two different date-i, one following the other, in one
charge is an illegality which vitiates the trial and cannot be cureil by Sec. 537 of the Code of
Criminal Procedure.

Where an accused person attempts to cheat a whole body of villagers awUpeaks to them in
a body and not to each individual villager for the purpose, he may be tried on one charge for each
attempt to get money from them.

Revision under Sec. 439 o£ the Criminal Procedure Code.

Charge for offences under ss. 417 and 511 of the Indian Penal Code.

The facts of the case appear from the judgment.

Bahu Dasarathi Sanyal for the Petitioner.

The Deputy Legal Rememhrancer (Mr. Douglas W hite) for the Crown.

The judgment of the Court was delivered by

Rumpini^ J, — The grounds on which this Rule has been obtained are
(1) that the accused did not make one attempt to cheat but several, and
that charges for as many attempts as there w'ere villagers from w hom he
sought remuneration should have been drawn up : (2) that the statement
made by him before Mr, Lister, the Settlement Officer, was inadmissible
in evidence, and (3) that two charges should have boon drawn up against]
the accused for the two attempts to cheat, alleged to have been made by]
him on the 11th and 12th January last.



Digitized by



Google



112 . The Criminal Law Journal IJeports. [Vol. Ill

MULFAT ALI SHEIKH r. EMPEROR.

Wo are of opinion that there is no force in the fir.-it and second of
these pleas.

The accused asked the villagers for 8 annas and 4 annas a head for
signing their Parchas. He did not ask each individual villagery but spoke
to them in a body. Hence, we think he was rightly charged in the charge
for each attempt to get money from them. The only passage in the state-
ment made by the accused to Mr. Lister which has been referred to in the
Magistrate's judgment is that in which the accused admits that he took
from the villagers of another village sums which they volunteered to pay
him. We do not consider that tliis statement is inadmissible. But there
is plenty of other evidence in this case and probably at the retrial which
we shall presently order it may not be necessary to make use of this
statement.

We consider that the third ground must prevail. The accused was
charged in one charge with two attempts to cheat made on the 11th and 12th
January. Tliere should have been two charges. Under the ruling of the
Privy Council in Suhrahnaniya Ayyar'^s case (1) this would seem to be an
illegality which vitiates the trial and cannot be cured by section 537, Cri-
minal Procedure Code. The Deputy Legal Remembrancer relies on the case
of Emperor v. Shervf AH (2). But this does not relate to a defect under
section 233, Criminal Procedure Code, as has been committed in this ' caso
and which according to the ruling of the Privy Council above referred
to vitiates the trial.

We accordingly 9>Qi aside the conviction and sentence and direct tha^
the accused be retried according to law.

Rule made ahsolute; retnal ordered.



(2 C. L. J., 619 ; 10 C. W. X, 222.)

IN THE HIGH COURT OF JUDICATURE AT CALCtJTTA.

Augt. 30 [CRIMINAL REVISION No. 773 of 1905.] 1905,

Present : — Mr. Justice Rampini and Mr. Justice Mookerjee.

MULFAT ALI SHEIKH r. EMPEROR.

Cnimlnal Pi'occdvre Code (Art VoflSOS) S-rx. 19S, 476—S:incthn to pm^eu^^—Com^
plaint to a Dixtriet ItrfjiMmr -Eiuptlnj held d^ipartiimitnUy—Jud'ieial proceeding— Penal
CW<' (Act XLVoflSGO) S-e. 1 82 -Complaint.

Where a peivon made a complaint to a District Registrar against the conduct of a subordinate
officer, a Sub-Registrar, alleging that the latter had delayed to register a d():;ument prescntal by
liim,- and the District Registrar after holding a depart mental enpiiry was satisfie«l as to the falsity
of the complaint and made an order sanctioning his prosecution for an offence under Sec. 182 of

the Pcual Code.

(1) (1001) I. L. R. 25 Mafl. Gl. (2) (1002) I. L. R. 27 Bom. 135.



Digitized by



Google



Vol. Ill] The Criminal Law Journal RfiPORts. 113

MULFAT AU SHBIKH r. BMPEROR.

MM : The order for prosecution was not one under aec. 476 of the Criminid Procedure
Code, nor wag it a sanction under sec. 195 ; It was wholly without juriediction and should be let
asi<te.

The enquiry held by the District Rejjristrar being a departmental one and not a judicial pro-
ceeding, see. 476 of the Criminal Procedure Code can have no application.

The prasecution of a person under a sanction not properly given and in a case where there
was no application for sanction is illegal and cannot be maintainetL

Revision under sec. 439 of the Criminal Procedure Code.

Order sanctioning prosecution.

The facts of the case appear from the judgment.

Bahu SJiashi Shekliar Basu for the Petitioner.

The Deputy Legal Rememhmncer (Mr. Douglas White) for the Crown.

The judgment of the Court was delivered by

Jiampiniy J^ — This is a Rule, calling upon the District Mugistrate
to show cause why the order of the District Registrar of FatM^Hir,
dated the 23rd February 1905, sanctioning the prosecution of the appK«
cant under section 182, Indian Penal Code, should not be set aside.

It appears that the applicant made a complaint to the District
Registrar against the Sub-Registrar of Palong, against whom and whose
office amlah he made certain imputations. The District Registrar held
an enquiry and was satisfied as to the falsity of the complaint ; and he
therefore sanctioned the prosecution of the applicant under section 182,
Indian Penal Code, by his order of the 23rd February 1905.

The present Rule was accordingly obtained by the applloani to
show cause why the order of the District Magistrate should not be set
asid^.

It has been contended that there was no proper sanction for the
prosecution of the applicant, and we are of opinion that this plea muii
prevail.

The learned District Magistrate says that, in his capacity of District
Registrar, he made, practically, an application to himself, as Magistrate,
and sanctioned the prosecution of the applicant.

We think, however, on the authority of the ruling in the cases to
which our attention has been called, namely. In tJie matter of the petition
of Banarsi Dass (1), Baperam Surma v. Gouri Nath Dutt (2) and
Jogendra Nath Mukerjee v. Sarat Cliandra Banerjee (3), that this was
not a case in which there was any application for sanction to prosecute
nor a case in which sanction was properly given, and that, therefore, the
prosecution of the applicant cannot proceed.

(1) (1896) I. L. R. 18 All. 213. (2) (1892) I. L. R. 20 Calc. 474.

(3) (190o) 9 C. W. N. 277,



Digitized by



Google



114 The Criminal Law Journal Reports. [Vd. Ill

ASMATULLAH r. EMPEROR.

We have considered whether the order directing the prosecution of
the applicant can be sustained under sect'on 476, Code of Criminal
Procedure. It appears that the Registrar, on receiving the complaint,
made an enquiry with regard to it and examined certain witnesses on
oath. This enquiry seems to have been a departmental enquiry, ai^d not
an enquiry under the provisions of the Registration Act, because the
offence which the District Registrar was enquiring into was not one
under the provisions of the Registration Act. In the circumstances, we
do not think that the order complained of can be sustained either .under
section 476, Code of Criminal Procedure, or as a sanction under section |
195, (>ode of Criminal Procedure.

We therefore set aside the order complained of and thus make the
Rule absolute.

Rule made absolute.



(2 C. L. J., 62L)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Augt..31 [CRIMINAL REVISION No, 800 of 1905.] 1905.

Present : — Mr. Justice Rampini and Mr. Justice Mookerjee.

ASMATULLAH and another r. EMPEROR,

Penal Code (Act XL V of 1860) gee. 176— Order direct itig produdhm of a d/>ed—Stth'
It?gigtrar^ power of to order produ'.'tiun—Party^ if legally bound to produce it— yon^produc^
tion^ if an offence.

A person callctl upon by a Sub-Registrar to produce the original document which was
registeretl in his office to enable him to compare it with the copy of the deed in the Registra-
tion Office Register, which, it was 8U'*pecte<l, was tami)cre<l with, is not legally bound to
produce it, and he cannot, on his failure to do bo, be convictc<l under Sec. 175 of the Penal
Cwle.

Revision under sec. 439 of the Criminal Procedure Code.

Conviction under sec. 175 of the Penal Code,

The facts of the case appear from tiie judgment.

Babu Manmatlia Xatli Mookerjee for the Petitioners.

The Deputij Legal Remembrancer (Mr, Douglas WMte) for the
Crown.

The judgment of the Court was delivered by

Rampiniy J, — This is a Rule, calling upon the Magistrate of the Dis-
trict to show cause why the order of the Deputy Magistrate convicting
the applicant under section 175, Indian Penal Code, and sentencing them
to pay a fine of Rs. 20 should not be set aside,



Digitized by



Google



Vol. Ill] The Crimikal Law Journal Reports, 115

SURESH CHANDRA SINHA r. BANKU SADHUKHAN.

It appears that a certain deed was registered in the Registration Office
of Bogra, and that it was afterwards discovered that the copy of the deed
in the Registration Office Registers had been tampered with. The Sub-
Registrar therefore called upon the applicants to produce tlie original
deed. They did not do so ; and accordingly they were prosecuted and
fined.

The question is whetlier they were legally bound to produce the deed
and whether they were liable to be convicted under section 175 for not
producing it. We find no authority for saying that they were so legally
bound. We have had the assistance of the Deputy Legal Remembrancer
in this case ; but he has not been able to show that the applicants were
liable to conviction under section 175.

We accordingly set aside the conviction and sentence and direct that
the fine, if paid, be refunded.

Rule made (duolvte.



(2 C, L. J., 622.)
IN THE HIGH COURT OF JUDICATURE AT CALCUTl'A.

ifay 17 [CRIMINAL REFERENCE No. 88 of 1905.] 1905.

Present : — Mr. Justice Mookerjee and ^r. Justice Caspersz.

kSURESH CHANDRA SINHA

I Wsus

BANKU SADHUKHAN and others.

Autrefois Acquit— Code of Crimiml Procedure (Act V of 1898) »ecn. 247^ 403, clauMt
(1) — PrerioHs acquittal — Summons case— Process ittsued for offences includiiuf previous offence.

Where a Magistrate issued processes against and summoned accused persons for one of
several offences alleged against them and acquit tetl them of the oflfence for which they were
summoned, no fresh processes could, in view of the provisions of Sec. 403, clause (1) of the
Ckxle of Criminal Procedure, be issued against them in respect of all the offences allcge<l against
them on the previous occasion including the one for which they were summoned and acquittetl.

Reference by the District Magistrate under sec. 438 of the Criminal
Procedure Code.

The facts of the case as they appear from the order of Reference are
as follows : —

On the 28th October 1904, Suresh Chandra Sinha filed a complaint against Bunkoo Kolu
and two others under sections 447, 504 and 506, 1. P. C. The complaint was recortlod by the
Deputy Magistrate of Sealdah and referred for preliminary enquiry to an Honorary Magistrate
who recommended issue of pn>ces8 under sec. 447, I. P. C, against Bunkoo and Kishori. The
Deputy Magistrate of Bcalilah ordered processes to be issueil against all the three accusal
under sec. 447, I. P. C The case was made over to another Honorary Magistrate for trial.
Oa the X7th January, in the absence of the complainant Suresh, that Court acf|uitte<l the



Digitized by



Google



116 The Criminal Law Joubnal Rkpobtb. [Vol. Ill

! imr-^- MALUKA GOALA r. EMPEROR.

nficaaed persons under sec. 247, Criminal Procedure Code. On the 27th January, the ooaplain-
ant Surcfih moved the Deputy Magistrate to have his case revival, and on the 7th March, the
Deputy Magistrate onleral process to be issued as praye<l for ;. e. under sections 447, 504 and
506, 1. P. C. and proccFs was acconlingly issued against aU the accused. Tiie accused there-
lupon moved the District Magistrate, who referred the case to the High Court with a recom-
jnendation that the proceedings should be quashed.

No one appeared in support of the Reference.
The judgment of the Court was as follows : —

We are disposed to adopt the recommendation of the District Magis-
trate in this case.

The provisions of section 403 clause (1), C. Or. P., are clearly appli-
cable. The record shows that the second trial is being held in respect of
all the offences alleged on the previous occasion, including the offence
under section 447, I. P. C. The cases relied upon by the Magistrate are
distinguishable ; the first, Mirza Mahomed Askari v. Mir Aluimed Hotitin
(1) was one of discharge, not acquittal ; the second, Hari Dass Sanyal
and others v. Saritulla (2) concerns further enquiry, not autrefois acquit.
The order of the Magistrate directing the issue of processes under sections
447, 504, 506, 1. P. C, is, therefore, set aside.

Order set aside.



(2 C. L. J., 624.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

July 10 [CRIMINAL REFERENCE No. 147 of 1905] 1905.

Present: — Mr. Justice Mookerjee and Mr. Justice Caspersz.

MALUKA GOALA v. EMPEROR.

Pi^erentiomif Ci^eltyto Ammah Ad (XIofl890) sec, 3 clause (a), (c)— Starring a
calf to d^ath—lll'treatwcnt^ ifificlvdes starcatttm.

The mere starving a calf to death is not an offence within the meaning of sec. 8 clause (pJ
of the rrevention of Cruelty to Animals Act (XI of 1890) which applies only where a person
offers, exposes or has in his j oFsession /r>r sale any live animal.

Starvation, however, is, in view of the coUocation of words in the paid section, one kind
of ill-treatment, and the words " otherwise ill treats any animal " in sec, 3 clause (a) include
starvation of an animal.

Reference under sec. 438 of the Criminal Procedure Code.
This was a Reference by T. W. Richardson, Esq., Sessions Judge of
Patna, dated the 29th June 1905, under sec. 438, Criminal Procedure
Code, recommending that the order of the C-antonment Magistrate of
Dinapur, dated the 16th June 1905, convicting the accused under sec.
3 clause (c) of the Prevention of Cruelty to Animals Act (XI of 1890)
(I) (1902) 6 C. W. N. 633. (2) (1888) I. L. K. 15 Calc, 608.



Digitized by



Google



Vol III] The Criminal Law Journal Reports. 117

MAJHI MAMUD r. EMPEROR.

and sentencing him to one month's rigorous imprisonment might he
reversed. The accnsed was found to have starved a calf to death and
was convicted under sec. 3 clause (c) which applies only where a person
offers, exposes or has in his possession for sale any live animal ; but there
was no evidence that the calf was for sale.

No one appeared at the hearing of this Reference.

Tlie judgment of the Court was as follows : —

The applicant for revision starved a calf to death. He has, accord-
ingly, been con\ncted under section 3 (c) Act XI of 1890. This is clearly
wrong, because the calf was never /or W^. But inasmuch as the words
" starvation or other ill-treatment," in clause (c) of the section, mean
that star\ation is one kind of ill-treatment, we think that the words
" otherwise ill treats any animal " in clause (a) include starvation of the
animal.

The conviction is, therefore, altered to one under section 3 (a)^ Act
XI of 1890, and the sentence is maintained. Let the papers be returned.

Conviction altered •



(2 C. L. J., 625.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA*

July 10 [CRIMINAL REFEREN(.^E No. 148 of 1905.] 1905.

Present : — Mr. Justice Mookerjee and Mr. Justice Caspersz.

MAJHI MAMUD and another r. EMPEROR.

Indlaji Penal (\td€ (Act XLT of 1860) 9ec, J72~-Absccitdituf im order to avoid heitu/
terred with a suiitt»on4t, notice or order^Uvnmng awatj to aroid arred under a warrant.

Section 172 of the Indian Penal Code has no application in the case of a warrant which
is not a * summons, notice or onler ' and a conviction under that section for absconding in onler
to avoid bdng servcil with a warrant is bad in law.

Reference under sec. 438 of the Criminal Procedure Code.

Conviction for an oflEence under sec. 172 of the Indian Penal Code.

No one ap|>earcd on this reference.

The judgment of the Court was as follows : —

This was a reference made on the 27th June, 1905, by M. Smyther,
Esq., Sessions Judge of Dacca, under sec. 438, Criminal Procedure Code,
recommending rliat an order of the Honorary Magistrate of Narayangunge,
dated the 6th May, 1905, con^^cting the accused under sec. 172, Indian
Penal Code, and sentencing them to pay a fine of Rs. 10 each be reversed.

A warrant was issued against two persons for their arrest and produc-
tion before a Rural Sub-Registrar. A peon wont to execute the warrant,



Digitized by



Google



118 The Criminal Law Journal Kei>orts. [Vol. Ill

In re srBBARAYA VATHYAR.

1 but the two person?* ran away. Upon the complaint of the peon they were
then prosecut<»d and convicted under see. 172, Indian Penal Code, for
" absconding in order to avoid being served with a summons, notice or
order."

Section 172, 1. P. C, has no application in the case of a warrant which
IS not a " summons, notice, or order ''; see Queen v. Womesh Chunder (1),
Queen v. Zahoor Alt (2), Queen v. .\mir Jan (3).

We set aside the convictions and sentences, and direct the refund of
the fines if paid.

Conviction set askle.



(15 M.L.J.,489.)

IN THE HIGH COUKT OF JUDR^ATURE AT MADRAS.

Sept. 28 [CRIMINAL REVISION No. 301 of 1904.] 1904.

Present : — Mr. Justice Davies and Mr. Justice Sankaran Nair.

fn re SUBBARAYA VATHYAR.

(nminal PriH-Hlurc (ifd4',9M, 47G, 435-^- Judicial Proceeding''—'' Calling for records
under g. 435, not a Judicial Proceeding "^ Ltpsc of time.

Calling up for the recimls of a case from a Subonliiiate Magistrate under g. 435, Cr. P. C
will«ot con»titute it a •* Judicial PnK^ediiig *' within the meaning of s. 476.

Where a District MagiMtmt« calletl for the rpcoixls of a casa from a Sub-magistrate iu
which tlie Sub-mag'stratc had refuso<l to accord sanction for perjury against a witness under
8. 195, Cr. P. C, and jjassad ortlers under s. 47g, Cr. P. C, committing the witness for trial
before the nearest magistrate, Held that tlie District Magistrate had no jiiristliction to proceed
under h. 470.

Imme<liat<j action in contemplatetl by s. 470, Cr. P. C„ and proce<lure taken under it after
the Iai>8e of ^neveral months is illegal.

In this case an application for sanction for prosecution for perjury,
against the counter-petitioner was rejected ])y the Sub-magistrate.

The application itself was made after the lapse of one year from the
termination of the case in which the petitioner was alleged to have given
false evidence. The District Magistrate acting under s. 435, CV. P. C,
called for the records and passed an order under s. 476 of the Code send-
ing the petitioner to the nearest Magistrate to take his trial on the charge
of perjury. The fiuestion in revision was whether the District Magistrate
was acting in a *' judicial proceeding " so as to have jurisdiction to act
under s. 47(5 of the Code.

1\ Subramanit/a Aiyar for petitioner.

The Ag. Public Prosecutor (J. Adan^) for the Crown.

CO (18(56) o W. R. Cr. 71. (2) (,872) 4 All. H. 0. R. 07.

C») (»**7r>) 7 All. H. c. R. mi.



Digitized by



Google



Vol. Ill] tHE Criminal Law Journal ftfiPORTS. lid

TARA CHAND SINGH V. EMPEROR.

The Court made the following

Order : — The District Magistrate professes to have been actftfg in a
judicial proceeding so as to give himself jurisdiction to act under s. 476
of the Code of Criminal Procedure. His calling up the records under
s. 435 is not a judicial proceeding as declared in Queen-Empress v. Kuppu
(1) and as he did nothing else that would constitute a " judicial pifij^oeed-
ing," he had no jK)wer to make the order that he did under s. 47(5 of the
C'Odo of Crimiual Procedure. Further to adopt the procedure under
s. 476 ijnmediate action is contemplated and to take such procedure after
the lapse of several months is illegal.

The order of the District Magistrate is accordingly reversed.



(L L. R,,32 CuL, 1069.)
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Juno 19 [CRIMINAL REVISION No. 387 of 1905.] 1905.

Present : — Mr. Justice Pargiter and Mr. Justice Woodroffe.

TARA CHAND SINGH r. EMPEROR.

Itemand of Appeal— Jurigdiction of Apppllate dm li— Practice.

A Sessions Judge has no authority under any section of the Criminal Pro3c lure Cjvle to
remand a case on appeal on finding that the juilgment of the Lower C jurt is not as satisfactory
as it should have been. In such a case it is his duty as Se-^sions Judgo to gi into the facts
fully and dispose of the api)eal. He cannot devolve this duty on the Lower Court.

Bahn Digamhar Chatterjee for the petitioners.

Ufo one appeared to show cause.

Pargiter and Woodroffe, JJ. — The three applicants were convicted by



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 38 of 91)