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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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It is argued on behalf of the applicant that that statement though
false was not the matter which really deceived Dr. Pearse. The subscrip-
tion book was produced and shown to Dr. Pearse ; there are names of
highly respectable persons in the book, and the book itself shows that the
object was a charitable one. Dr. Pearse wrote his own subscription in
the book.

It seems to us that it can hardly be said that the false statement was
really the determining factor in inducing Dr. Pearse to give the subscrip-
tion. He was probably equally induced, if not more so, by the names in
the book and the object ; and if those considerations had not influenced
him, I am not satisfied that he would have been won over by the statement
that the applicant was employed in the Municipality. For these reasons
I do not feel satisfied that the applicant deceived Dr. Pearse within the
meaning of section 415 of the Penal Code.

Further, if it be taken that there was. such deception, I doubt whether
the case comes within the other part of that section. It is undisputed that
-there was not fraud in this case ; and whether the applicant's motive was
dishonest or not, would depend upon whether there was " wrongful gain '*
or " wrongful loss." The object in this case was a charitable one, and I do
not think, considering the words " wrongful gain " and " wrongful loss " in
an ordinary reasonable sense, that the subscription given can be said to have
constituted wrongful gain to the society or wrongful loss to Dr. Pearse.

Dealing next with the second part of the section, and taking it that
Dr. Pearse was induced to do what he would not have done if he had not
been deceived, I do not think that what he did can be said, in the ordinary
sense, to have caused him any damage or harm in body, mind, reputation
or property.

Accordingly, as my learned brother agrees in the result, we make the
rule absolute and set aside the conviction and sentence.

Wooilrofe, J.— I agree with my learned brother that the conviction
and sentence should be set aside. It does not appear to me that Dr.
Pearse was induced to subscribe Rs. 10 to a charity, which seems to be a
well-known and deserving one, by the alleged misrepresentation of the
accused that he was a person employed in the Accounts Department of the
Municipality. It is not likely that Dr. Pearse would be led to subscribe
on that ground. Probably the only effect of the statement of the accused
on his mind was to satisfy him that the accused was a person authorized
to collect on behalf of this charity. We now know that that is the case
and that the money has been made over to the charity. As regards the
alleged " wrongful loss," the money has gone where Dr. Pearse intended
4t should go, unless it is to be assumed, which I do not, that tho gtority



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i46 The Criminal Law Journal Reports. [Vol. Ill

SONA RAM R. SANGMA r. EMPEROR.

was not to have the benefit of the money in the event of the accused not
being employed in the Calcutta Municipality.

Mule made absolute.



(3 C. L. J., 196.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

May 9 [CRIMINAL REVISION No. 290 of 1905.] 1905.

Present : — Mr, Justice Pargiter and Mr. Justice Woodrofte.

SONA RAM R. SANGMA r. EMPEROR.

Cnminnl Procedure Cod? (Act V of 1808) , section 110—Secnrity far good behari^mr—
Enquiry held outside the local limits of the Magistrate's juri4dicti4>n — Proceedings taken, when
the person is tnUside such jurisdiction.

An enquiry under section 110 of the Code of Criminal Procedure, should not be conducted
bj a Magistrate at a plaoe which is outside the local limits of his jurisdiction and where be
has no power to conduct any proceedings.

The person against whom proceedings are taken under section 110, Criminal Procedure
Oodo, must bCf at the time when such proceedings are taken, within the local limits of the
jurisdiction of the Magistrate taking such proceoilings.

Non-compliance with these provisions vitiates the proceetlings as made without jurisdic-
tion, and the order passed must be set aside.

Mr. Jackson and Babu Surendra Natli Ghosal for the petitioner.

The judgment of the Court was as follows : —

The applicant Sona Ram was bound down by the Deputy Commis-
ttioner of the Garo Hills under section 110 (clause f), Criminal Procedure
CodC) to give security for his good behaviour for three years in his own
recognizance for five thousand rupees and with two sureties each in the
same amount.

On his application to this Court, a rule was issued on the Deputy
Commissioner to show cause why this order should not be set aside on the
ground that he had no jurisdiction to make the same ;jirsty because it was
made at Damra which is outside the local limits of his jurisdiction, and
secondlif^ because the circumstances under which the order was made, did
not come within the purview of section 110.

No one has appeared to show cause against the rule ; and after hear-
ing the learned counsel for the applicant, we set aside the order on two
grounds ; firsts the Deputy Commissioner conducted the enquiry under
section 110 at a place named Damra which is admittedly outside the local
limits of his jurisdiction and where he had no power to conduct any pro-
ceedings ; secondly^ as far as we can gather from the Deputy Commis-
jiioner's orders and other papers, the petitioner was not within the local
limits of the Deputy Commtssioner'a jurisdiction, when proceedings were



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Vol. Ill] T^HE Criminal Law Journal Reports. 247

EMPEROR V. BALDEWA.

taken against him under the section ; ho had been in Calcutta, and he was
arrested at Goalpara. Ho was not found, as far as we can understand the
facts, within the Graro Hills. The Deputy Commissioner, therefore, had
no jurisdiction in these circumstances to conduct proceedings under
section 110.

On these grounds we set aside the order and we think that no
proceedings should be taken against this applicant except in strict con-
formity with the law.

We do not think it necessary to express any opinion whether the fact«
on which the case was based bring it within section 110, because after the
finding regarding jurisdiction, it is not necessary for us to express any
opinion with regard to these facts.

Mule made absolute*



(3 A. L. /., 146; 26 A. W. X, 52.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

Jan. 23 [CRIMINAL REVISION No. 574 or 1905.] 1906.

Present : — Mr. Justice Banerji and Mr. Justice Richards.

EMPEROR r. BALDEWA and another.

Citde of Cr\m\ml Procedure (Act V of 180S), sectioHM 181 and ISS—Ritbhertf committed out'
tide Jiriti*h India—one of the accnned a foreitfn ituhject and the other a Ji/itiik sHhJect— accused
in po9$eiuion of stolen projfert If — charge itnder section 411, Indian Penal Code, cognimhlehy
Sessions Omrt in British India,

Section 181 of the Code of Criminal Proceilure (Act V of 1898) does not apply (o the ca«e
of an oflfence committetl by a person who is not a British subject, outside British territory.
The section is intendeil to regulate the jurisilictions of Courts in British India in respect of
ofEences committed in British Imlia and cannot vary or abrogate the onlinary rule that no
foreign subject can be tried in British India for an offence committetl outside British India.

Two persons were committed to a Sessions Court on a charge of robbery committed outside
British territory. One of the accusjd was not a British subject, but the other was. No certi-
ficate under section 188 of the Code of Criminal Proc^lure had been obtained in regard to the
accu§eil who was a British subject. Both were found to be ijosscssed of the stolen property
within the limits of the jurisdiction of the Sessions Court. Held that the Sessions Court should
frame a charge against them under section 411, Indian Penal Code, and try them for that
offence.

The facts so far as they are material and the arguments appear suffi-
ciently from the judgment.

W. K. Porter^ (Assistant Government Advocate) for the Crown.

The accused were not represented.

The judgment of the Court was delivered by

Banerji^ J. — This case has been reported by the Sessions Judge of
Jhansi, with the recommendation that the commitment of the accused Bal-
dewa and Radhtta to that Court on a charge of Jobbery be quashedi



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248 The Criminal Law Journal Reports. [Vol, lit

EMPEROR r. BALDEWA.

It lias been foaiid that the phiee where the robbery is said to have
l>een committed is outside British territory. The accused are alleged to
have brought the stolen property into British territory and to have been in
possession of it within the local limits of the jurisdiction of the Court of
Session at Jliansi. One of the accused Baldewa is not a British subject.
The other accused Radliua is a subject of His Majesty, but no certificate
under section 188 of the Code of Criminal Procedure has been obtained in
regard to him. The learned Sessions Judge is of opinion that under the
circumstances neither of the accused can be tried by a Court in British
India for the offence of robl)ery.

The learned Assistant Government Advocate has addressed to us two
contentions ; first, that under the provisions of section 181, sub-section (3)
of the Code of Criminal Procedure, the accused may be tried by the
Sessions (Jourt at Jhansi as they were i>ossessed of the stolen property within
the local limits of the jurisdiction of that Court ; and, secondly, that the
accused may be charged with and tried for the offence of retaining stolen
property punishable under section 411 of the Indian Penal Code. The
questions raised are not free from diflSculty, and we therefore took time to
consider our judgment. We are of opinion that section 181 of the Code
of Criminal Procedure does not apply to the case of an ofiEence committed
by a person who is not a British subject outside British territory. It seems
to us that the section is intended to regulate the jurisdiction of Court in
British India in respect of offences committed in British India and cannot
Vary or abrogate the ordinary rule that no foreign subject shall l)e tried
in British India for an offence committed outside British India. We
agree with the learned Sessions Judge that the accused cannot be tried by
him for the ofiEence of robbery. It remains to consider whether there
should be a trial for retaining stolen property under section 411. Property
stolen outside of British India is " stolen property " as defined by the code,
and if the evidence be true, the property was " retained " in British India.
It may, however, be urged on the authority of the King^Emper(yr v. John
(1) (the case mentioned in the reference) that as Baldewa was the actual
thief, he cannot be convicted of retaining the property under section 411.
We think that the facts of the present case distinguish it from the case
mentioned. In our view if the case for the prosecution is true, Baldewa
first committed an ofiEence punishable under the law of India when he re-
tained the stolen property in British India. If the theft had been commit-
ted in British India, there would have been no " retention " of stolen pro-
perty within the meaning of the section. The possession of the property
would have been merely a continual of the original wrongful taking, and
It would be absurd to contend that when a theft is committed, the thief
(1) [1901] L L. R., 23 All., 266.



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Vol. Ill] faE CiUMiKAL Law Journal ftEPORTs. 249

ALI HASAN r. EMPEROR.

commits a new offence under section 411, every moment of time he conti-
nues in possession of the stolen property. In the case of Queen- flmpress v.
Alnlul Latib (2) the facts were quite similar to the present case, and the
Court held that the accused could be convicted under section 411. We
are of opinion that the learned Sessions Judge should frame a charge
against both the accused under section 411 of the Indian Penal Code and
try them for that oflEence. If at the trial he be of opinion upon the evi-
dence before him that the charge has not been established against the
accused or either of them, it would be his duty to acquit the accused who
is found to be not guilty. At the present stage of the proceedings we can-
not quash the commitment as regards either of them.

Record returned.



(5 A. L. J., 149; 26 A. W. X, 48.)
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

Jan. 16 [CRIMINAL APPEAL No. 852 of 1905.] 1906.

Present : — Mr. Justice Richards.

ALI HASAN r. EMPEROR.

LidiaH Penal Cinle (Act XLVo/1860), sections 463, 464— forgery.
Whenever the woixls *' fraud" or "intent to defraud" or "fraudulently" occur in the de-
finition of a crime, two elements at least are essential to the commission of the crime ; namely,
first, deceit or an iiitention to deceive, or in some cahes mere secrecy ; and secondly, either
actual injury or possible injury, or an intent to expose some i)erson either to actual injuiy or
to a risk of possible injury by means of that deceit or secrecy.

Under section 463 of the Indian Penal Code the making of a false document with any of
the intents therein mentioned is forgery and section 4(U sets forth when a person is said to
make a false document within the meaning of the Ccftlc.

Therefore, if a pei-son fabricates documents with the view of assihtirg another to bring a
search on which he has been engaged to a successful issue and intending to deceive the police
officer or officers to whom they are directed into acting on them as genuine documents, he is
guilty of forgery.

The facts of the case appear from the judgment.
C. Dillon (with him G. Tf. Dillon), for the appelhint :—
No offence has been committed as the documents are not " false docu-
ments " within the meaning of section 464, Indian Penal Code, because
they have not been made " dishonestly " as defined in section 24. There
could have been no " wrongful loss " or wrongful gain " to any one.

The officiating Government Pleader (Lalit Mohan Banerji), for the
Crown. The documents have been made " fraudulently " and hence are
(2) [1885] I. L. R., 10 Bom., 18G.



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^50 The Criminal Law Journal Reports. [Vol. tit

ALI HASAN v. EMPEROR.

" false documents " within the meaning of section 464. It is not necessary
that every " false documents " should be made " dishonestly." The accus-
ed made the document " fraudulently " with intention to " defraud " the
Sub-Inspector of Kydganj by inducing him to give over the woman into
the custody of her husband. He cited

Queen-Emjiress v. Muhammad Sueed X/ian, [1899] L L. R., 21 All, 113.

Sir Fitz James Stephen's Histx)ry of the Criminal Law of England, Vol. II, p. 121.

Xotamraja Veftlmtraifadu v. Emperor, [1905] I. L. R., 28 Mad., 90.

Queen- Em2)ress v. Soshi Bhushan, [1893] I. L. R., 15 All., 210.

C. Dillon^ in reply.

The word " fraudulently " always implies that there should be wrong-
ful loss to one party and wrongful gain to another. In this case there was
no " wrongful loss " to any person and no " wrongful gain " to the appel-
lant. He cited

QueeH'Emjn-eM v. Girdharl Ld, [1886] 1. L. R., 8 All, 653.
Qiieen-Emirress v. Haradhone, [1892] L L. R., 19 Cal., 380.

Webster's Dictionary was referred to for the meaning of the words
" fraudulently " and " defraud."

The following judgment was delivered by

Mchards^ J, — Ali Hasan, the appellant in this case, has been convict-
ed of an offence under section 464 of the Indian Penal Code. It appears
that the appellant was a literate constable, and as such, was employed in
the Police Office at Allahabad. His duties were of course chiefly clerical,
but he must have had every opportunity of becoming a ware of the various
orders which were passed in ordinary course at the Police station.

It appears from the evidence that Amir, the husband of a woman,
named Itfussammat Piari, was anxious to discover her whereabouts. Some-
time in June, the woman had left her husband, and a petition was present-
ed at the Police station asking that a search should be made for her and
alleging that she had gone away with some other person and had taken
property with her belonging to her husband, and at the same time offering
a reward of Rs. 10 if she were found, and the property recovered. It also
appears that during the course of events, Amir employed a pleader to assist
him in discovering the whereabouts of Piari. The pleader's name was
Ali Zohad, father of accused. The two documents, which the appellant
is alleged to have forged, are set out in the evidence and referred to as
exhibits A and B. Exhibit A is a follows : —

" By order of the Superintendent of Police of Allahabad.

" Perused the order No. 107, dated , as regards the missing

of Mussammat Piari. She was on the report No. 35 entered in the
general diary of this station arrested in the evening on the 9th July, 11)05|



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Vol. Ill] The Criminal Law Journal Reports. 251

ALI HASAN r. EMPEROR.

and is in the custody of Mussammat Sibni, wife of Ghisu, weaver. The
petitioner has been informed by order. It is, therefore,

" Ordered that the Sub-Inspector be, by an order, directed to hand
over the woman to the petitioner and search be stopped."

" Dated 17th July, 1905."

Exhibit B is as follows : —

" The Sub-Inspector of Kydganj be directed to hand over to the
petitioner the woman, if found. The muharrir concerned do carry out the
order to-day. Dated the 18th July, 1905." The case for the prosecution
is that the appellant, in order to assist his father, and to bring the business
in which he was engaged to a successful issue, fabricated these two docu-
ments intending that the police officer or officers to whom they were
directed would act on them as genuine documents and that the wife,
Mussammat Piari, would be handed over by the police to her husband.

The defence is two-fold, first, that exhibit A was in fact a copy of an
original order which had been passed by the Sui>orinteudent of Police
sometime between the 10th and the 15th July, and that it was not fabri-
cated at all, and that the second document merely followed as a matter of
course upon the first, and that even if he were not authorized to issue the
second order, no criminal offence was committed, and that he committed
at most an error of judgment. I think it is clearly shown by the evidence
that for some reason or other, Mussammat Piari was not willing to go to
her husband, that the latter was very anxious to get her into his custody
whether she liked to return to him or not, and it was with this object in
view that he employed Ali Zohad to present the petitions. Sometime
prior to the date of the alleged offence the woman had been found by the
police and handed over by them into the care of another woman, some
relation of her own. On the question of fact I have come to the conclu-
sion that the documents are not genuine. Mr. Douglas Straight in his
evidence expressly denies that he ever made any such order as exhibit A.
There is no doubt that on the 17th July, he expressly refused to make an
order of its nature or purport. Mr. Douglas Straight certainly would not
knowingly make an order of that nature, and the only possibility would be
that inadvertently and at the suggestion of some of his subordinates he
might have made an order sometime between the 10th and the 15th that
the Mussammat should be delivered over to her husband. I have already
said that the appellant states expressly that Mr. Straight did make such
an order and that exhibit A is a copy of it. He says that the order was
made after a report had been made by a Sub-Inspector announcing the
discovery of the woman and that she had been placed in the custody of her
relative. Neither the report nor this order is forthcoming.



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252 The Ckiminal Law Journal Reports. [Vol. Ill

ALI HASAN V. EMPEROR.

Upon cross-examination Mr. Douglas Straight first of all stated that
he had no recollection of the report being brought under his notice, but
evidently after his memory was refreshed, he stated that it was brought
under his notice, but he could not say when. Now it is quite clear that
exhibit A is not a copy of any order made by the District Superintendent
of Police, in the true sense of the expression. In the first place it is dated
the 17th July, a date on which it is clear no such order was made by the
District Superintendent of Police. It is said, however, that this is merely
the date of the issue of the copy of the order, but on referring to the rest
of the exhibit A it contains a number of other matters, a reference to the
perusal of other orders and also a statement that " the petitioner has been
informed by an order," all of which go to show that exhibit A is not in
any sense of the word a copy of any order actually made by the District
Superintendent of Police.

It would occur to me that where an order is issued from the office of
the District Superintendent of Police, it would in truth and in fact be a
real copy of that order bearing the same date which the order of which it
was a copy bore.

It is suggested that it may be the practice of the office of the Superin-
tendent of Police of Allahabad that any official issuing an order can take
the order actually passed and issue another order in different language and
bearing a different date and which is in fact not the order of the District
Superintendent of Police, but what the person issuing the order conceives
to be the purport of it. If such be the practice, it is a very inconvenient
practice. But no evidence has been given to show that such a practice
exists, and in the absence of such evidence I will certainly assume that
when an order is issued, it is a true copy of the order actually passed by
the officer. Looking then at the document, exhibit A, on the face of it,
it does not appear to be a genuine document. On the 17th July, the same
date on which the appellant states that he innocently issued exhibit " A,"
his father was at the office of the District Superintendent of Police, present-
ing the petition which the latter expressly rejected, on the grounds that
the petitioner should go to the Civil Courts to get back his wife. On the
18th, the next day, the appellant by his own admission issued the order,
'. exhibit B, without any authority save such authority as he would have had
if the order of which exhibit A purports to be a copy, actually existed.
Now the fact that the appellant was employed as a clerk in the Office of
the Police at Allahabad, would render it reasonably probable that he would
know of the various orders passed by the District Superintendent of Police,
but it IS still more proljable that he would have learnt the fate of a petition
presented by his own father the day before concerning the matter whichj



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Vol. Ill] Thb Criminal Law Journal Reports. 253

ALI HASAN V. EMPEROR.

on the 17th, he himself had issued, exhibit " A." Taking all the evidence
into consideration, I do not believe the story told by the appellant that
Mr. Douglas Straight ever made any such order, as the order alleged to
have been made by him between the 10th and the 15th July, and of which
exhibit A is said to be a copy.

The second ground of defence is an entirely legal ground and has
been argued at some length both by the Government pleader and Counsel
for the appellant. It is contended on behalf of AH Hasan that even
assuming that he fabricated the two documents, he has not committed
forgery. Under section 463 the making of a false document with any of
the " intents " therein mentioned, is forgery, and section 4G4 sets forth
when a person is said to make a false document within the meaning of the
Code. Reading these sections together, if it can be said that AH Hasan
fraudulently made exhibits " A " and " B " with the intention of causing
it to be believed that they were made with the authority of the District
Superintendent of Police, knowing that they were not made with his
authority and intended thereby to commit fraud or that fraud should be
committed, he is guilty of forgery. I find on the evidence that the docu-
ments are false and that AH Hasan made the documents with the intention
of causing it to be believed that they were made with the authority of the
District Superintendent of Police, and that he knew they were not made
with the authority of the District Superintendent of Police. I find further
that he intended to deceive the officer to whom the supposed orders should
come for execution, and by these means he intended that Mussammat Piari



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 54 of 91)