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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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Vol III] Thb Crihinal Law Journal Reports. 237

EMPEROR V. DWARKAPAS DHARAHSEY.

The facts of the case are as follows : —

The defendant, Dwarkadas Dharamsey, was the owner of a theatre called the Elpfainstone
Theatre. He was called upon by the Municipal Commissioner of the City of Romhay to pro-
Tide privy accommodation in the said theatre, and a notice was accordingly issued to him
under 8. 249 of the City of Bombay Municipal Act, 1888, Dwarkadas failed to comply with
the requisitions contained in the not/pe ; and he was, therefore, proceeded against for an ofEwioe
punishable under s. 471 of the Act.

The acting Second Presidency Magistrate, before whom the proceed-
ings were taken, made a reference to the High Court. In the course of
his letter of reference be observed :

- vv
"It is urged op -his (di|3fep<lfuit» behalf that under s. 249 of the Municipal Act, the Muni*
olpal Commissioner is not empowered to call upon the owner or occupier of a theatre to provide
privy accommodation and that Itire issue of such a notice is lll^iaL It is further urged that
the definition of ' other place of public resort ' in the said section must be conitrued ejit^U^h
generis with the Words prececling. Counsel for the defendant has also quoted Maxwell on the
Interpretation of Statutes, p. ^461 (3rd Edn.),. which says when two or more woids susceptible
of analogous meaning are couple<l together, jtoecuntur a soeiis > they are understood to be used
in their cognate sense. They take as it were their colour from each other ; that is, the more
general is restricted to a sense analogous to the less general. The Hon. Mr. Crawford, on
behalf of the Municipality, has on the other hand, drawn the attention of the Court to p. 47S
of the same book which says : *of course the restricted meaning which primarily attaches to the
general word in such circumstances is rejected when there are adequate grounds fo show that
it was not used in the limited order of ideas to which its predecessors belong. If it can be seen
from a wider inspection of the scope of the l^slature that the general words, notwithstanding
that they follow particular words, are nevertheless to be construed generally, effect must be
given to the intention of the legislature as gathered from the larger survey.' Under these cir-
cumstances the question for consideration is whether ' other places of public resort' should be
x»nstrued as meaning a place of public resort of any kind or a place of the same kind, as a
Market, Railway Station, Dock or Wharf. In my opinion the words ' other places of public
resort,' must be construed generally, i.tf.„as meaning ia place of public resort of any kind and
not as eju^dem generin with the wonls Market, Railway Station, Dock or Wharf. In the first
place the words * Market, Railway Stafion, Dock or Wharf' are ejusdem genens and I fail to
conceive any place analogous to Market, Railway Station, Dock or Wharf. In my opinion,
therefore, the principles laid down by .Maxwell on Interpretation of Statutes on p. 4C1, W-.,
when two or more words susceptible of analogous meaning are coupled together noscnntyr a
iociU they are understood to be used in their cognate senses, do not apply in this case. If
' other place of public resort ' in s. 249 is to be construed as a place of public resort ejmdem
^«cm with Market, Railway Station, Dock or. Wharf, then those words should be rejected
altogether as it is difficult .to suggest any places of public resort analogous to Market, Railway
Station, Dock or Wharf. The words ' other places of public resort ' being present in that sec-
tion, the legislature must have intended to have some meaning attached to them. The only
reasonable construction that could be placed on those words after taking into consideration
the intention of the legislature is that ' other place of public resort' means other place of pub-
lic resort of any kind. A theatre being a place of public resort falls in my opinion within the
provision of s. 249 of the Municipal Act."

The reference came up for hearing before Russell and Aston, JJ.

workmen or labourers, the Commissioner may, by written notice, require the owner or occupier
of the said premises to construct a sufficient number of water-closets or latrines or privies and
urinals for the separate use of each sex.



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238 The Crimikal Law Journal Rbports. [VoU HI

EMPEROR r. DWARKADAS DHARAMSET.

Mr. Weldon^ instructed by Messrs. Crawford^ Brotcn ^' Co., for the
Municipality: — The expression "other place of public resort " in s. 249
of the City of Bombay Municipal Act, 1888, must be given its proper
construction ; and a reasonable meaning should be assigned to it. When
so done, it is clear that a theatre falls within the meaning of the ex-
pression.

Mr. ff. C, Coyajiy for the defendant : — We submit the expression
" other place of public resort " in s. 249 of the City of Bombay Municipal
Act (Bom. Act III of 1888) does not include a theatre. This is apparent
from the wording of the section itself. The places specified therein are :
(1) Market ; (2) Railway Station ; (3) Dock ; (4) Wharf ; (5) a place in
which persons exceeding twenty in number are employed in any manu-
facture, trade or business or as workmen or labourers. These are all
places where we expect to find tradesmen or labourers or workmen at
work for the greater part of the day, and where, therefore, the necessity
contemplated by the section is most likely to arise. We do not find in the
section any mention of a place where people meet for two or three hours
amusement or entertainment, e.g.^ a music hall or a theatre. This con-
tention is borne out by the marginal note to the section, which mentions
" factories, &c." ; and we are entitled to have recourse to it, since " the
headings prefixed to section or set of sections in some modern statutes are
regarded as preambles to those sections." (Maxwell on the Interpretation
of Statutes, 2nd edn., p. 65). The word "theatre" is not at all used in
the section. The omission is significant and shows it must have been a
designed omission. See also R. v. Clexoorth (1).

Russelly J. — In this case the point raised is whether a theatre comes
within s. 249, Bombay Municipal Act (Bom. Act III of 1888) as "pre-
mises used or intended to be used as a market, railway station, dock,
wharf or other place of public resort or as a place in which persons ex-
ceeding twenty in number are employed, &c." The section gives, in such
cases, power to the Municipal Commissioner to require the construction
of a sufficient number of latrines or water closets or privies and urinals
for the separate use of each sex.

Now the construction of the words " place of public resort," or " pub-
lic place " where they occur in an Act of Parliament, must depend on the
context and scope and object of the Statute. (Vide Encyclopedia of
English Law, Vol. 10, title " place.")

What is then the scope and object of section 249 ? It is to provide
proper and decent accommodation for persons of both sexes in the way of
latrines, urinals, &c. in regard to the places specified in the section. It is,

(I) (1864) 4 B. & S. 027.



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Vol. in] The Criminal Law Journal Reports. 239

EMPEROR V. SHIVOO GOWRI.

we think, clear that the word " other places of public resort ** cover the
case of a theatre which is ejysdem generis with a Railway Station ; it is
impossible to say and it has not been argued that the public do not resort
to the theatre. Why then should not persons resorting to the theatre be
provided with the same accommodation as persons resopting to a Railway
Station ?

With regard to Queen v. Cleworth (1) relied on by Mr. Coyaji, the
object of that Statute was to prevent certain classes of workmen from
working on Sunday. There the Court held that " other person whatso-
ever " meant some persons not quite a " tradesman, artificer, workman or
labourer " ; within which category a farmer did not come.

For these reasons we answer the question sent to us in the " affirm-
ative."

Aston^ J". — I concur that the answ^er must be in the affirmative. The
places of public resort specified in the sentence preceding the words " or
other place of public resort " do not differ inter se less than a theatre
differs from them. There is nothing therefore in the " ejusdem generis "
argument. It is, therefore, unnecessary for the purpose of answering this
reference to ascertain whether the theatre in question comes under any
other category in s. 249.



(8 Bom. L. i?., 118.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

Feb. 1 [CRIMINAL REFERENCE No. 6 of 1906.] 1906.

Present : — Sir Lawrence Jenkins, K.C.I.E., Chief Justice and

Mr. Justice Aston.

EMPEROR V. SHIVOO GOWRI.

Village Pdiee Act (Bom. AH rillo/lSer), tee, 15^— Police Patel— Verbal order by a
Poliee Patel sent through a memnger oJtJting a perton to he present before him—Pergonally,

tThe Village Police Act (Bom. Act VlII of 1867), Sec. 15 runs as follows :—

1.5. Claujte 7.— It shall be lawful for a Commissioner by an order in writing to authorize
any Magistrate of a district to issue a commission to any person exercising the office of a Police-
patel, empowering such Pollce-patel to try any person charged with any of the following
offences committed ^thin the limits of the village in which he is Police-patel, that is to say :—

mischief or pettty theft, when the estimated value of the property stt^en, or of damages
sustained, does not exceed two rupees ;

resistance or refusal to obey a lawful order issued by such Police-patel personally.

Clati^ 2.— And it shall be lawful for a Police-patel so empowered to sentence any person
convicted before him of any of the above acts to punishment by fine not exceeding rupees five,
or confinement in the village chaunri for a period not exceeding forty-eight hours, the con-
finement, in cases of resistance or refusal to obey a lawful ortler, to be awanlable only on the
failure to pay a fine.



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240 Jhe Crimikal Law Jocb^^al Rkposts. [Vol. til

EMPEBOR r. SAKHARAK GAS^U.

A verbal cider sent throngfa a messeoger by a Police Patel, under a, 15 erf the \ iUage
Police Act, 1867, asking a person to present himself before him to answer an accusation, is not
a lawful order issued by the Police Patel personally within the meaning of s. 15 (1) <rf tiie
Village PoUce Act, 1867.

The facts of ^the case are as follows : —

One Honappa made a_complaint on the 22nd September 1905 to the Police Patel of Ankola
against Shivoo Gowri (^aoHised) for petty abu% under s. 14 of the Bombay Village Police Act,
1867. On the following day the ^tel sent hts Ugrani (rillage servant) to ask the accused to
present herself before him (Patel) that day to answer the accusation. She refused to attend
saying that she knew nothing of any complaint against her. The Ugrani again called her but
she refused to obey his orders. Upon this her attendance was procured through the District
Police ; and the Patel, in exercise of the speciid powers which he was empowered to exercise
under s. 15 of the Village Police Act, convicted and sentenced her to pay a fine of Bs. Ave or
in default to confinement for forty-eight hours for the offence (rf her refusal to obey his oidem.

The District Magistrate of Kanara, feeling that the conviction and

sentence imposed by the Police Patel were illegal, made a reference to the

High Court, observing : —

" Section 15 of the Village Police Act makes the refusal to obey a lawful order punishable
irhen such order was issued by a Police FAtel jterttonallt/. The High CJourt has, however, heW
that a Police Patel has authority to issue summons to any person, accused of an offence of
which he can take cognizance, to appear before him to answer the accusation, and such sum-
mons signed by the Patel himself is a lawful ortler issued by him jtergoHollif within the mean-
ing of s. 15, cl. (1) : Imjteratrix v, Ratnia Bawaji (1). But in this case the Patel neither
personally ordered the accusal to appear before him nor did h^ issue a summons under his
signatmre to procure her attendance. The mere verbal communication conveyed by the Ugrani
not even in the presence of the Patel is, in my opinion, insufficient to hold that the communica-
tion was a lawful order issuotl by the Patel personally within the meaning of s. 15."

The reference came up for disposal before Jenkins, C. J. and Aston, J.

There was no appearance on either side.

Jenkins^ C. J. — Though the ruling cited (1) does not cover the pre-
sent case, still we think that a verbal order sent by a messenger as was
done in this case is not a lawful order issued by the Police Patel personal-
ly, within the meaning of section 15, clause (1), of Act VIII of 1867.

We, therefore, set aside the conviction and sentence and direct the
fine, if paid, to be refunded.



{8 Bom. L. It, 120.)

IN THE mOH COURT OF JUDICATURE AT BOMBAY.

Deer. 23 [CRIMINAL REVISION No. 242 of 1905.] 1905.

Present .—Sir Lawrence Jenkins, K.C.LE., Chief Justice and

Mr. Justice Batty.

EMPEROR r. SAKHARAM GANU.

Cnmiml Procedune Cinle (Act V of 1898), ss. 236, 237 , BSS—AUer^ioH of ekargfi—Ir*
regularit If— Penal Code (Ad XLVofl860), *». 366, 376.

(1) [1891] Cr. R. No. 26 ; Unrep. Cr. C. 550.



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Vol. Ill] The OmjaNAL Law Journal Reports. 241

EMPEROR r. SAKHARAM GANU.

It is not competent to a Judge in appeal to alter a charge under 8. 376 of the Indian
Penal Code to one under r. 366 of the Code ; because a charge under the latter section involves
different elements and diflfersnt questions of fact from a charge under s. 376.

Sakharain Ganu was tried by the Assistant Sessions Judge of DhuHa,
with the aid of assessors, for an offence punishable under s. 376 of the
Indian Penal Code, for having committed rape on a girl, named Nadri,
under twelve years of age. The Judge, differing from both the assessors
found the accused guilty of the offence charged and sentenced him to
suffer three yeUrs rigorous imprisonment and to pay a fine of Rs. 100.

On appeal the Sessions Judge of Khandesh came to the conclusion that
the accused had sexual intercourse with the girl Nadri with her consent
and not against her will : but altered the conviction to one under s. 36(5 of
the Indian Penal Code and sentenced the accused to undergo rigorous im-
prisonment for nine months and to pay a fine of Rs. 100. The grounds
of his decision were as follows : —

The Court ought to have framed an alternative charge under s. 366 of the Indian Penal
Code, for the so-called confession showed clearly that that offence hatl been committed. In-
deed it was more a confession of an offence under s. 366 than of an offence under s. 376. The
evidence also was clear. The girl was under the lawful guartlianship of her parents. Her
consent was immaterial under s. 366, as she was less than 16 years old. She was taken away
from her parent's house by the accusetl in order that she might be seduceil to illicit inter-
course. The fact that she was taken away temporarily matters little. Accused's pleader says
his defence is the same as in the case under s. 376 and he docs not want the case to be sent
down.

The accused then applied to the High Oourt under its criminal re-
visional jurisdiction, contending (inter alia) that the lower Court finding
that the conviction could not be sustained under s. 37G of the Indian Penal
Code was wrong in altering the charge to one under s. 366 ; that the facia
proved did not warrant a conviction under s. 366 ; and that the lower
Court erred in not considering whether there was or was not consent to the
girl's being taken away by the accused ; and subsequent detention, although
criminal, did not come under s. 366 of the Indian Penal Code.

Mr. A. G. Desai, for the accused. — The consent under s. 376 of the In-
dian Penal Code and that under s. 366 of the Code are two different things ;
in the one, the consent must bo of the person raped, in the other of the
lawful guardian. The first is an offence against the person of the female
raped, the other involves the violation of the rights of the lawful guardian.
The accused, charged and tried under s. 376, cannot be said to be prepared
for his defence under s. 366. The case docs not come under ss. 236, 237,
nor under s. 238 of the Criminal Procedure Code, 1898.

Rao Bahadur Vasudeo J. Kirtikar, Govt. Pleader, for the Crown. —
The accused is not prejudiced by the charge being altered from s, 376 to



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242 The Crimikal Law Journal REPORts. [Vol. HI

EMPEROR r. SAKHARAM GANU.

one under s. 366. Tlio pleader in the lower Court waived the right of
retrial when asked by tlie Sessions Judge. The consent of the father — ^the
lawful guardian — was not obtained and the accused has also confessed to
that effect. There is nothing, therefore, to prevent the Court from con-
victing the accused on his own confession or at least from ordering a retrial.
The Court will at least express an opinion that a second prosecution will
not be barred under s. 403, Criminal Procedure Code.

Mr. A. G. T>esaiy in reply. — ^The pleader could not so waive the right
and if the pleader did so, the Court cannot debar the accused from re-
opening the question : Queen v. Bholanath (1). The facts in evidence that
the mother had consented to the taking away of the girl, that the parties
were on intimate terms, shift the onus of proof of want of consent under s.
366 on the prosecution. The prosecution having had an opportunity has
failed to prove this and no good will be served by ordering a retrial under
B. 366 nor under s. 497, for the latter section requires a preliminary complaint
by the husband and the Court cannot compel him to prosecute if he chooses
not to do so. The Court will not express any opinion one way or the
other ; the prosecution may, if they choose, prosecute the accused leaving
the point about s. 403 of the Criminal Procedure Code open to both the
sides. To express the opinion asked for is virtually ordering a retrial and
greatly prejudicing the accused.

Jenkins^ C. J. — The accused was charged under s. 376 of Indian
Penal Code with the rape of a girl.

He was convicted by the first C'ourt.

On appeal to the Sessions Judge, that conviction was set aside on the
ground that the girl had consented.

The Sessions Judge, however, convicted the accused under s. 366 and
passed sentence on him.

In our opinion it was wTong of the Judge to have proceeded under
s. 366 because a charge under that section involved different elements and
different questions of fact from a charge under s. 376.

On the ground, therefore, that there has been an irregularity in the
procedure of the Sessions Judge, we set aside his order except so far as it
involves an acquittal under s. 376.

But we express no opinion as to further proceedings being taken under
s. 366 or 497.

The accused is, therefore, discharged and the fine, if paid, must be
refunded.

Conviction and sentence reversed.



(1) (1876) I. L. R. 2 Oal, 30.



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Vol. IIIJ The Criminal Law Journal Reports. 243

DAYANATH TALUQDAR V. EMPEROR.

(/. L. i?., 33 CaL, 8.)

IN THE HIGH (^OURT OF JUDICATURE AT CALCUTTA.

June 28 [CRIMINAL REVISION No. 486 of 1905.] 1905.

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

DAYANATH TALUQDAR r. EMPEROR.

Criminal Ptvcfdure Code (Act V of 1898), *. llO—^mrity for good beh^triaur— Appeal
to District Afttgistrate — District Magist rate's power — Further inquiry.

Where a District Magistrate in an appeal af^inst an orcler to gire security for good be-
haviour under s. 110, Cr. P. C, directed a further inquiry on setting aside the order ami also
directed that an increased security should be required from the persons proceedetl against, the
High Court

Held, that the District Magistrate had no power un<ler the law to ortler the further in-
quiry in the terms in which he did.

The onler was accordingly set aside.

Babu Atuhja Charan Bose (Babu Dehendra Nath Bagchi with him)
for the petitioners.

No one appeared to show cause.

The material facts appear from the judgment.

Pargiter and Woodroffe^ J J. — These ten applicants were called upon
to show cause why they should not be bound down to give security for
their good behaviour under section 110 of the Criminal Procedure Code.
The case was tried by a Deputy Magistrate, and he bound them down.
An appeal was made to the District Magistrate, and he set aside the
Deputy Magistrate's order and directed that there should be a further
inquiry, at the same time requiring increased security from these appli-
cants. Against that order a motion was made to the Sessions Judge, and
while that motion was pending, the Deputy Magistrate proceeded to hold
the further inquiry directed by the District Magistrate.

A rule was obtained from this Court calling on the District Magis-
trate to show cause why the proceedings taken against theseupplicants
should not be transferred to some other Magistrate than the Sub-divisional
Magistrate of Tangail, or why such further order should not be passod as
to this Court may seem fit. '^

We have read the explanation submitted by the District Magistrate,
and the proceedings in the Sessions Judge^s Court alto have been laid
before us. It appears to us that the District Magistrate had no power
under the law to order the further inquiry in the terms in which he did.
It will be best therefore for us to deal with the matter from that point
of view.

Accordingly we set aside the District Magistrate's order for further in-
^jairy, leaving him, if he thinks it necessary, to take any further proceedings



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244 tTHfi Criminal Law Journal Remrts. [Vol. Ill

ASHUTOSH MALLICK V. EMPEROR.

against these applicants which he may l>e authorised by law to do upon
entirely fresh materials,

liule made absolute.



(I. L. 7?., 33 CaL, 50.)

IN THE HIGH COURT OF JUDIC^ATURE AT CALCUTTA.

June 30 [CRIMINAL REVISION No. 584 of 1905.] 1005,

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

ASHUTOSH MALLICK r. EMPEROR.

J^Hal Qtde (Act XLVo/ISOO), m. 415, iSO—Cheatlng—Mntrepre^entatlon—DhhonfMif
— " Wrongful gain— '■'^ Wrongful hMj"

The accu8e<l falsely representing himself to be an employee in the Accounts DeiJartmcnt
of. the Calcutta Municipal Corporation and as authorised to collect subscriptions towanls a
charitable fund, producetl before Dr. Pearse, the Health Officer of the Corporation, a subs-
cription book containing the names of respectable subscribers, and solicited some subscription
for the fund. The Doctor subscribed ten rupees which were duly made over by the accuse*!
to the intended charity. Upon these facts he was prosecuted for cheating and senlenced to
rifforous imprisonment and fine under a. 420, I. P. C.

///?Zrf, that (he accused was not guilty of cheating. The money went where the donor
in^temled it to go. There was no " wrongful loss " to the donor, nor any " wrongful gain" to
^le accused or the charitable society, and that the misrepresentation of the accused as to his
being an employee of the Corporation hml not in any way induced or deceived the donor to
subscribe.

The facts material to the report are stated in the judgment.

Babu Amarendra ^atli Chatterjee for the petitioner.

No one appeared to show cause.

Pargiter^ J.— The applicant has been convicted by the Chief Presi-
dency Magistrate under section 420 of the Indian Penal Code of cheating
Dr. Pearse and obtaining a subscription of Rs. 10 from him towards the
funds of tha^ Harinam-pradayini Sahha^ the object of which \vas to
feed the poor on the occasion of the opening of the new Municipal oflBces.

He obtained this rule calling on the Chief Presidency Magistrate to
show cause why ^^e conviction and sentence should not be set aside on the
^ound that the facts found do not constitute the offence of cheating.

The first question we have to consider with reference to the definition
of cheating in section 415, Indian Penal Code, is whether the applicant
deceived Dr. Pearse.

Dr. Pearse and two other witnesses have deposed that the applicant
distinctly informed them that ho was employed in the Municipal office,
and this statement is admittedly untrue. It was contended that because
of that false statement Dr. Pearse gave this subscription.



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Vol. Ill] The Criminal Law Journal Reports. 245

ASHUTOSH MALLICK V. EMPEROR.



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 53 of 91)