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any objection that may be made to that form of trial.

Rule made absolute.



(6 P. L. R., 645 ; U P. R., Tr., 1906.)

IN THE CHIEF COURT OF THE PUNJAB, LAHORE.

July 5 [CRIMINAL APPEAL No. 288 of 1905.] 1905.

Present : — Sir William Clark, Kt., Chief Judge and Mr. Justice Reid.

EMPEROR,— Appellant,

Versus

RUP SINGH— Respondent.

Criminil Pfocetlitre Citde (Ai-t V of 1898), see. 47Q~S;inctioii to prifsecute— Judicial
jtroeeed'inff— Income Tax Act (II of 18H6), Chaitter IV, ProceediHj» Mnder^htf Gillectitr^
Herenve Cintrf.

The Collector acting umler Chapter IV of the Income Tax Act, is a Bevenue Ooiii% and
his procee<ling8 are ju licial proceetliiigs within the meaning of 83ction 476 of the Criminal
Procedure Code.

The Assistant Legal Remembrancer, for Appellant.

Mr. Gouldshury^ Advocate, for Respondent.

The factij of the case appear from the following judgment of the
Sessions Judge :

The Collector of Montgomery orilcred the prosecution of Rap Singh, under section 177,
Indian Penal Code, for his verifying the petit i ):i jf an objection. The Magistrate held that
section 177, "ndian Penal Code, was not applicable, because no declaration was made under
section 18, subsection (2), and convicted him under section 193, for giving falso evidence in
proceedings other than judicial.

The first ground of appeal h tliat the Magistrate coukl not take cognizance of the case
because the onier of the Collector docs amount to a complaint under section 476 or otherwise,
and therefore the proceedings and conviction should be set aside. ( Vide P, R,^ 1 and 2 pf
1802, Cr.).



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Vol. Hi] The Okiminal Law Journal IIbports. 12*9

EMPEROR V, RUP SINaH.

The order of the Collector is as follows : —

Hup Siiij^h, fitatc<l in his written application as an objection to liis assissment tliat liis
income during the year in question ba<l not amounte<l to more than Rs. 1,000. Hin accounts
have baen examined and fountl to show an income amounting to Rs. 7,751 -0-6. He has there-
fore made a fahe de<daratio!i within the mcaninj; of s?ction 35 of Income Tax Act, and under
sect ion 195, Criminal Pr.x'edure Code. I oi-dcr his i)rosecution for an offence under section 177,
Indian Penal Co<le. The case to be trietl by the Magistrate of the Ihiqa.

■ Now this onler is not a «incti«)n umler section 145, because there is no application by any
private individual. (P. It., Xo. 2S of 1901, Cr.),

It is not an order under section 470, Criminal Procedure Code, because the Collector as an
oflacer under the Income Tax Act is not a Revenue Court.

This order docs not amount in any sense as an or linary comi)laint.

The only remaining case in which the Magistmte could take cognizance wa,s that of on
his own 8usi)icion, but he does not ai>pcar to have acted in that capacity becau*4e accused was
not informeil that he was entitled to have the casj tri tl by some other Court an omission
which was fatal to the pr<x;ec<ling. (P. P., Xo. 13 of 1S9S, Cr.J.

The Magistrate himself and rightly ha.s sail I tliat section 35 of the Income Tax Act and
section 177 of Indian Penal Code, are applicable to the i)rtscnt case. I find tlierefore tliat
the Magistrate could not take cognizance of the case and therefore the proceedings and con-
viction should be set aside and fine if paid be refunded. Appeal acciptctl.

Clark, C. J. — The question for our decision is whether the Sessions
Judge is right in holding that the Collector's order is not " an order under
section 476, Criminal Procedure Code, because the Collector as an officer
under the Income Tax Act is not Hevenue Court."

We may clear matters by saying that in cur cjinicn the Collector's
order, though not quoting section 47G, Criminal Procedure Code, is an
order under that section, and P. P., -V<^. 23 of 1901, Cr., has therefore
no bearing on the case. The point is, whether the Collector in hearing
the objection to the assessment of the Income Tax was a Kcvenue Court
and whether the proceedings were judicial proceedings.

The Collector in hearing the objection was acting under (liapter IV,
of the Income Tax Act, 188G, the objection was required to be verified
in the manner required by law for the verification of plaints (section 25
(1) ). The Collector had power to compel witnesses to give evidence
(section 28) and the proceedings are to be deemed to be judicial proceed-
ings within the meaning of sections 193 and 22S of the Indian Penal
Code.

It seems to us a neoessarj' implication that they are judicial proceed-
ings within the meaning of section 47 G, Criminal Procedure Code. A-s
to give false evidence before the Collector was giving false evidence in
a judicial proceeding, it follows that it was a judicial proceeding in which
the Court could act under section 47G, Criminal Procedure Code.

Mr. Gouldsbury, for accused, quoted /. L. It, XXVII Calcutta, 8^0.
There it was held that a Deputy Collector acting under the Laud



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130 The Criminal Law Journal Reports. [Vol. Ill

EMPEROR v. GHASI RAM.

Acquisition Act was not Revenue Court within the terms of section 476,
Criminal Procedure Code, the reasons given were tliat the Deputy Collector
could not pass any final order, his order was subject to a reference to the
Civil Court he could not administer an oath or require verification.

In all these matters tlie Land Acquisition Act differs from the Income
Tax Act and this case is not in point.

On the other hand in L L. i?., XXIV Madras, 121, it was held that
a Tahsildar, when holding a enquiry as to whether transfer of name in a
land reo-ister should be made or not, was Revenue Court.

We are of opinion that the Collector acting under Chapter IV of the
Income Tax Act is a Revenue Court and his proceedings are judicial pro-
ceedings. We therefore accept the appeal and set aside the order of the
Sessions Judge and direct him to rehear the appeal.

Appeal accepted.



(6 P. /.. It, 651 ; 45 P. li., Cr., 1905.)

IN THE CHIEF (^OURT OF THE PUNJAB, LAHORE.

Sept. 12 [CRIMINAL REVISION No. 908 of 1905.] 1905.

Present : — Mr. Justice Johnstone.

EMPEROR r. GHASI RAM,— ACCUSED.

Punjab Municipal Act (XX of 1801)^ section, IGi^PuhUc st reft ^oh^ ruction of^Plde*
vig of moras on jfMic road.

The placing of moras on a public road is an obstruction of a public street within the
meaning of section 161 of the Punjab Municipal Act, though the ixxad at the spot may be
broad enough to allow vehicles to pa«s even with moras set there.
The facts of this case are as follows : —

The accused phiocl nior.is in front of his shop and was chargwl with obstructing a public
Btreet,

The accused, on convi(>tioa by a Bench of Honorary Magistrates exercising the powers of
a Magistrate of the 2n(l Class in the Delhi City, was sentenced, by onler dateil 9th March 1905,
under section 104 of the Municipal Act, to pay a fine of Re. 1 and 4 annas court-fee paid on
issue of process to him, ami this ordar was confii-metl on appeal by the District Magistrate on
2nd May 1905.

The proceedings are forwarded for revision on the following grounds : —

The District Magistmte has himself found in his judgment on api)eal No. 79 of 1905 of
23rd June 190."), that the placing of the moras or stools in front of shops in this locality does
• not amount to an obstruction.

OltDER OF THE ChIEF CoURT.

Johnstone, J.— Section Ui of the Act makes punishable the obstruct-
ing of, or encroaching upon, " any street, sewer, water-course." In the
District Magistrate's judgment of 23rd June 1905, quoted by the learned



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" Vol. Ill] Thh Criminal Law Journal Reports. IBl

EMPEROR r. PRABH DITAL.

Sessions Judge, reference is made only to " street " hut in my opinion a
shopkeeper placing moras so as to prevent officials from getting at sewer
or drain can properly be said to obstruct or encroach upon that sewer or
drain. Further if the moras are put down aside the drain and to the
puWic road, I ca«sider they obstruct the road even though it may at the
fiipot be broad enough to allow vehicles to pass even witli moras set there.
The public is entitled to the whole breadth of the street to the last inch.
. For these reasons I decline to interfere. Files returned.

JRevisioa disallowed, .



. - (6 P. L. R., 655 ; 47 P. It, Cr., 1905.)

IN THE CHIEF COURT OF THE PUNJAB, LAHORE.
Sept. 13 [CRIMINAL REVISION No. 912 of 1905. 1905.

' Present: — Mr. Justice Johnstone.

EMPEROR r. PRABH DIYAL,— ACCUSED.

CantoHiHent Cod4>, 2899, ss, 167, 108, 173—JCrated toatetv, licrnse /or sale of-^Chndi^
tloH9 of license— Breach of ultra vires conditions,

'A licensee for sale of serated waters in a cantonment cannot be coiivicte*! of the breach of
coniUtions of the license which are ultra vires, • •

Section 108^ of the Cantonment Cotle authorises the Cantonment Committee to lay down
..tire sources from which the water used in the manufacture of wrateil waters is procured. It
gives no power to select manufacturers as such.

The facts of this case arc as follows : —

The accused holds a license for the sale jof aerated waters in the Mian. Mir Cantonment
which contains a condition that the licensee shall sell aerateil waters manufactured by such
flrm? only as are'appfpved of by the Cantonment Committee. The accused infringed this
condition.

The accuseil on conviction by Major A. A. M. M. Faulknor exercising the powers of a Ma-
gistrate of the Ist class in the Mian Mir Cantonment, Lahore District, was scntenccxl, by oi*der
date<l 3l8t May 1905, under section 173 of the Cantonment Code, to a fine of Rupees 25 or in
default seven days' simple imprisonment.

The proceedings are forwarded for revision on the following groumls : —
The accused holds a license, under section 167 of the Cantonment C^xle, 1899, for the sale
of aerated waters in the Mian Mir Cantonment. One of the conditions entered in the license
is th^t th? licensee shall sell aerated watei*s manufactured by such firms only as arc approval
of by the C.vifonm'jnt Committee. Ths accuse:! has been fineil Rs. 25 for infringing that con-
dition by selling aemtetl waters manufacturecl by some firm not approval of by the Cantonment
Committee. If the condition was lawfully entered in the license the accused has been rightly
convicts i But it appears to me that the Cantonment authorities had no power to make such
a condition. The conditions which may be entered in licenses for the sale of aerate! waters arc
specified in section ICS (h) of the Coile. They do not include a condition that the aerated
waters soltl shall have been manufactured by firms approvetl of by the Cantonment Committee.
A condition may be impose;! as to the sources from which water used in the manufacture of
the jerated waters shall be taken, but there is no allegation in the present case that there baa
^ been a breach of that condition.



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132 The Criminal Law Journal Repobts. [Vol. in

GURANDITTA r. EMPEROR.

If the Cantonment authorities had no power to make the oomlition which the aocnsed has
hifringeil, the infringement is no offence.

I forwanl the reconl to the Chief Court and recommend that the oonrictioa be set aside.

Order of the Chief Court.

The Government Advocate for Crown.

Johnstone, J. — In my opinion the learned Ses!<ions Judge is right in
this case. If section 168 be looked at, it will be seen that it nowhere
authorises a Cantonment Committee to restrict a licensee, who is not a
manufacturer, to certain manufacturers as his source of supply of »rated
waters. It authorises the Committee to lay down the sources from which
the xoattf used in the manufacture is procured, and on the back of the
license form certain conditions regarding the use of well water and the
boiling of it and so on are laid down. But even according to thoee cobcK-
tions on the back of the form the maker need not be a resident of Mian
Mir. In the present case the accused is said to have procured the stuff
from Lahore ; but it is not asserted, much less proved, that his Lahore
maker does not follow the rules on the back of the license.

It is urged that section 168 (A) {iv) implies that the Committee has
power to select manufacturers as such, but I do not think this is right.
The sub-clause clearly only means that labels shall be used so that the
public and the Cantonment authorities may see who the maker is and so
may ascertain whether the maker is acting according to the rules pres-
cribed.

I set aside the conviction and sentence and order refund of the fine.

Revision allotced.



(6 P. L. li., 657 ; 48 P. i?., Cr., 1905.)
IN THE CHIEF COURT OF THE PUNJAB, LAHORE.

June 13 [CRIMINAL APPEAL No. 287 of 1905.] 1905.

Present : — Mr. Justice Johnstone*

GURANDITTA,— (Convict),— Appellant,

Versus

EMPEROR,— Respondent.

Criminal Procedure Code (Act V i}f 189S), *. 309^ Assessors differing with Sessions
Judge. DtUg of Court to record opinions of assessors.

When a Sessions Judge differs from the assessors in his view of a case, he shoakl alimjs
roconl carefully the grounds on which the asses :>ors base their opinions and -ehoukl make some
I'cference to the matter in the judgment.

Johnstone, J. — 'The learned Sessions Judge, has convicted the accused
in this case against the opinions of all three assessors witbovi adverting



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Vol. Ill] The Criminal Law Journal Reports. 133

EMPEROR r. GHAZI.

in his judgment in any way to those opinions, and without recording the
reasons given or established by the assessors for those opinions. When a
Sessions Judge differs from the assessors in his view of a ease, he should
always record carefully the grounds on which the assessors base their
opinions and should make some reference to the matter in his own judg*
ment.

After considering all the evidence I have arrived at the conclusion
that the Sessions Judge is right and the assessors wrong. The Sessions
Judge has given strong reasons in support of his view, and might have
added that the fact that the police did not on capturing accused at once
take him to complainant's house but kept him in the lock-up and went
about searching for the owner of the watch, is sufficient to show accused's
dishonesty. If he had been acting honestly, he would, when arrested,
have at once named Mathra Das and his employer and would have taken
the police to them, and it is quite clear, whatever he may have said to the
police, that he did not name Mathra Das or his employer.

The sentence is quite appropriate.

Appeal diimmed.



(6 P. L. J?., 669.)

IN THE CHIEF COURT OP THE PUNJAB, LAHORE.

Oct. 26 [CRIMINAL REVISION No. 817 of 1905.] 1905.

Present : — Mr. Justice Reid.

EMPEROR r. GAZI— Accused.

WorhmenU Breach of Contract Act (XIII of 1859), Sec. 2— Contractor, UahlUty of.

Though Act XIII of 1859 applied to artificers, workmen or labourers, who contract to
employ other men, it does not make liable a contractor, who is not an artificer, labourer or
workman.

The facts of this case are as follows : —

The accused was ordered under Act XIII of 1859 to refund Rs. 473-13-0 in one month to
the complainant on account of a contract entered into on 15th June 1903.

The accused on conviction by Rasaldar Sardar Sohan Singh exercising the powers of a
Magistrate of the Ist class in the Gujranwala District, was sentenced by order dated 30-5-1905
under section 2 of Act XIII of 1859 to refund Rs. 473-13-0 in one month.

The proceedings are forwarded for revision on the following grounds:—

In this case the cwnplainant entered into a contract on 15th June 1903 with the accused
by which the accused undertook to break stone at Sangla quarry by means of labourers in a
prescribed method. Conditions were fixed and a sum of Rs. 600 was paid in advance and it
was agreed that any feiilure to comply with the conditions of the contract should cause accused
to be liable to the conditions of Act XIII of 1859,

The complainant now sues him under this Act claiming the balance between Rs. 625-2-6
paid in adyanoe and Rs. 160-5-6 the value of the work done. The lower Court has accepted



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134 The Criminal Law Journal REPORTSr pTol. lit -

MR. A r. EMPEROR.

the Application ami onlerecl the accused to refuml the bahmoe of Rfi. 473rl8 in one monllu
Now it is clear that the accused is really a contractor and not a workman and that in ordinary
circumstances Act XIII of 1859 could not be applied to him. The coiuUtion in the contract
binding the accusetl to submit to a process of law against him cannot legally be enforced an<T
the application should have been dismissed and I report the case to the Chief Court for orders
in- revision under section 438, Criminal Procetlure Code. ,

Order of the Chief Court.

Mr. Bunt Chand^ Advocate, for Respondent.

i?etd, J. — I concur with the District Magistrate that it has not been,
established that the petitioner Grazi was an artificer, workman or labourer;
at the date of the circumstances out of which these proceedings^ havo^
arisen.

Though the Act applies to artificers, workmen or labourers who con-«
tract to employ other men it does not make a contractor, who is not aiu
artificer, labourer or workman, liable. I set aside the order of the Magis^'
trate Basaldar Sardar Sohan Singh. Any money recovered under the
order will be refunded.

' The complainant's remedy is by suit.



(6 P. L. i?., 671.)

IN THE CHIEF COURT OF THE PUNJAB, LAHORE.

Nov. 23 [CRIMINAL REVISION No. 1336 of 1905.] ' 190^;

Present .—Sir William Clark, Kt., Chief Judge.

Mr. A. — Petitioner t\ EMPEROR^Respondent.

Criminal Procedure Code (AH V of 1898), see. 342—Couiuteland CUeKt^Duttj of Coumel
to adclse hi$ client wlw is accused in a case not to answer questions jfuf by Court,

A Counsel may legally a<lvi8e his client at his trial for an offence not to answer questions
put to him by Court.

Clarhy C. J. — ^The proceedings of the Sessions Judge are as follows: —
Yesterday, while I was trying the case of Crown versus Nawab Singh
and others, who were charged with murder, and was examining the accused
Hakim Singh, Mr. A, Barrister-at-Law, who was defending the accused,
told Hakim Singh not to speak, whereupon Hakim Singh, took the hint
jfVid refused to answer further questions.

As I omitted to take cognizance of this matter yesterday I cannot
now proceed under section 480, Criminal Procedure Code, I forward the
case to the District Magistrate under section 482, with a view to Mr. "A
being prosecuted for contempt of Court. Mr. A has tendered an apology.
I should have been ready to accept it if his conduct had amounted merely
to a personal insult, but as this was a deliberate attempt, and a successful^



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Vol. Ill] The Criminal Law Journal Reports. 135

EMPEROR r. MUKHTAR khan.

one by a Barrister to prevent his client from making a statement which
might possibly be damaging to him the matter is too serious to be over-
looked.

Mr. A's explanation is as follows : —

" That the Sessions Judge was at the time examining one of the
accused under section 342 of the Criminal Procedure Code. I stood up
with the intention of informing the Court that I thought I was justified
in advising the accused that he could under section 342 refuse to answer
any question. When I had got as far as " I think, Sir, I am entitled"
the Sessions Judge at once in a very angry tone said " Mr. A I will not
be interrupted when I am putting a question." " I tlion had to sit down,
but I advised my client by saying to him " mat holo."' " Nothing more '
occurred."

A counsel is no doubt within his right when he advises his client to
say nothing, and I accept and believe Mr. A's explanation that he was
acting in the interest of his client and had no intention to insult the Court
or to cause any interruption to Mr. Martineau in the conduct of his judicial
proceedings. I do not think that there was an offence under section 228,
Indian Penal Code, and I cancel the order of the Sessions Judge directing
a prosecution under section 228, Indian Penal Code.

Mr. A's position between his duty to his client and the respect due
to the Court was a diflScult one and believing as he tells me, that the
questions being put to accused were not warranted by the Code, if he failed
in the respect due to the Court he apologized and his failure might have
been condoned.

Petition accepted.



(6 P. L. 7?., 673; 55 P. i?., Cr. 1905.)

IN THE CHIEF COURT OF THE PUNJAB, LAHORE.

Septr. 9 [CRIMINAL APPEAL No. 52G of 1905.] 1905.

Present : — Mr. Justice Kensington and Mr. Justice Johnstone.

EMPEROR,— (Complainant),— APPELLANT,

Versits

MUKHTAR KHAN,— (Accused),— RESPONDENT.

Sxcise Act (XII of 1806)y sec. 49— Liquor^ »alc of—Liceme^hreach of c milthns of-^
AUimcnt.

Seld, that the accused, who had purchased liquor for a British soldier from a hcensed
vendor in contravention of a condition of the vendor's license, was guilty of abetment of the
breach of the condition, though the vendor himself, having no guilty knowledge or intention,
committed no offence.

Mr. O* Gorman, Advocate, for Appellant.

Messrs. GuUu Ram and Pozdon^ Advocates, for Respondent,



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136 The Criminal Law Journal Reports. [Vol. Ill

EMPEROR r. MUSSAMMAT RAJAN.

Johnstone^ J, — The second class Magistrate, Amritsar, convicted tb«
accused under section 49, Act XII of 181)G, in that he purchased a bottlo
of liquor from a licensed vendor for a British soldier and handed it to the
soldier in contravention of clause 9 of the vendor's license, the vendor
apparently not being aware of the destination of the liquor. The District
Magistrate, when the case came before him on appeal, held that the accused
had committed no offence ; that the accused did not sell to the soldier, and
that, as the vendor committed no offence, it could not be said that accused
abetted the commission of an offence.

Government has appealed against the actjuittal, urging that the
accused abetted the offence punishable under section 49, Act XII of 189G.

We agree with the District Magistrate that the accused did not sell
to the soldier. The former never became owner of the bottle of whisky
and so could not sell. But reading section 108, Indian Penal Code, with
explanation III and Illustration (//), we are constrained to hold, notwith-
standing the obscurity of the language of the section, that the accused
did abet the breach of clause 9 of the vendor's license, though the vendor
himself, having no guilty knowledge or intention, committed no offence.

In these circumstances, we accept the appeal, set aside the acquittal,
and find the accused person guilty of abetment of the breach of clause 9
of the vendor's license. The conviction by the second class Magistrate
bears date 29th March, 1905. On 31st March the District Magistrate let
the accused out on bail and on 25th April acquitted him and remitted the
fine of Its. 20. In our opinion it is not necessary to relegate the accused
to jail. Under section 49 of the Act (with section 109, Indian Penal
Code) we inflict a sentence of 2 days' rigorous imprisonment (already
endured) and of Us. 20 fine or, in default, 2 weeks' further rigorous
imprisonment. The District Magistrate should see to the enforcement
of this order.

Appeal accepted.



(6 P. L. JR., 674; 53 P. P., Cr., 1905.)

IN THE CHIEF COURT OF THE PUNJAB, LAHORE.

June 13 [CRIMINAL APPEAL No. 123 of 1905.] 1905.

Present : — Mr. Justice Reid and Mr. Justice Johnstone.

EMPEROR,— Appellant,

1 ^ersvs

Mussammat RAJAN, widow of Bura, — Respondent.

Penal Code (Act XLV of ISGO), section 20l~En(lence~CHnsinfi diitippearanee of eri-
(lence of olme—Oinng fuhe infcrmatkn to police to screen offender.



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Ybl. .III][ The Criminal Law Journal Reportb, 137

EMPEROR r. MUSSAMMAT RAJAN.

J IIM^ that the accused was not guilty of an offence under section 201 of the Penal Coile
by merely locking the outer door of her house where her son had committed murder, as it
appeared that the corpse had not been moved or concealetl by the accused.

The Government Advocate, for Appellant.

Reid^ J. — This is an appeal under section 417 of the Code of Criminal
Procedure by the Local Government from an acquittal.

The respondent was charged under section 201 of the Penal Code,
with having caused evidence of the commission of murder to disappear,
and with having given information which she knew to be false respecting
the offence, Avith the intention of screening the murderer.



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 40 of 91)