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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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should be illegally handed over to the custody of his father's client. The
question is, whether on this state of facts he is guilty of forgery. I think
the answer must be in the affirmative.

The word ' fraudulently ' is defined by section 25 as follows —

" A person is said to do a thing " fraudulently " if he does that thing
with intent to defraud, but not otherwise."

There clearly was deceit. The meaning of the word " fraud " is
given in Webster's Dictionary as " deception deliberately practised to
gain unlawful or unfair advantage." The meaning of " defraud " is also
given in the same Dictionary as follows : — " to deprive of some right,
interest, or property by a deceitful device."

The accused by fabricating these two documents not only intended to
deceive the police officer into acting upon bogus and invalid orders but he
also sought to prevent Mussammat Piari retaining her freedom and going
where she pleased. A number of authorities have been cited as to the
meanincr of the word "fraud" a'ld the expression "intent to defraud" in
the Indian Penal Code. In more than one of those cases the words of Sir



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254 The Criminal Law Jourkal Reports. [Vol IH

ALI HASAN V. EMPEROR.

James Fitz James Stephen in his History of the Criminal Law of England,
Vol. II, p. 121, are cited, " whenever the words fraud or intent to defraud
or fraudulently, occur in the definition of & crime, two elements at least
are essential to the commission of the crime ; namely, first, deceit or an
intention to deceive, or in some cases mere secrecy ; and secondly, either
actual injury or possible injury, or an intent to expose some person either
to actual injury or to a risk of possible injury by means of that deceit or
secrecy." In the case now under consideration had the fabricated docu-
ments been acted upon the appellant would have derived the advantage
that his father's client would have succeeded in his object by means of
appellant's deceit, a result which never would have been obtained if it
were known that genuine order for the handing over of the woman had
ever been made. On the other hand the woman would have lost the right
she had to remain at liberty to wander as she chose. It would be diflScult
and it is unnecessary to attempt to measure the gain to the appellant or
the loss to the woman.

If then Sir James Fitz James Stephen is correct in his view as to the
elements which are essential to the commission of a crime in which the
words " fraudulently " or " with intent to defraud " occur in the enact-
ment defining the offence, such elements are present in the c^ise under
consideration.

I do not think that I would serve any useful purpose by reviewing
the numerous authorities that have been cited in the course of the argu-
ments. I have given them my best consideration. They cannot all be
reconciled. But I do not think that I have disregarded any previous
decision binding on me. I am supported in the view I have taken by the
Full Bench Rulings in Queen-Empress v. SosJii Bhuslian (1) ; Queen-
Empress V. Abbas AH (2) and the majority of the Court in Kotamraja
Venketrayadu v. Emperor (3). In the case before the Allahabad and
Madras High Courts the charges against the accused were in respect of
false certificates presented by students for the purpose of attending lectures
or entering the Universities. In the Calcutta case the accused attempted
to use a false certificate of competency as an Engineer. It would certain-
ly be an alarming state of the law if a man could deliberately fabricate a
false order for the purpose of having another person arrested under the
supposed authority of a District Superintcniont of Police and be guilty of
no offence under the Penal Code.

The appeal is dismissed.

It appears that the accused is on bail : ho must surrender and serve
out the remainder of his term.

Appeal dismissed.
(1) I, L. R., 15 All., 210. (2) I. L. R., 25 Cal, 512, (3) I. L. R.^ 28 Mad., 90.



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Vol.. Ill] The Criminal Law Journal Reports. 255

MULAI SINGH f. EMPEROR.
(5 ^1. L. J., 190.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

Feb. 1 [CRIMINAL APPEAL No. 100 of 1905.] 1906.

Present : — Mr. Justice Aikinan

MULAI SINGH r. EMPEROR.

P»Kal Cjdfi^ seethn 47 J — cifpfj of forged djcument — Uite of.

Where a person took copies of forged documonts and put these copies forward as evidence
in support of his title, held that this was a use by him of forged documents.

The material facts appear from the judgment.

Muhammed Ishaq, for the appellant.

Government pleader (L, M, Banerjee), for the Crown.

The following judgment was delivered by

Aikman, J. — The appellant, Mulai Singh, has been convicted of fraudu-
lently and dishonestly using as genuine certain Khasras which he knew
or had reason to believe to be forged and has been sentenced under section
471, read with section 466 of the Indian Penal Code, to two years'
rigorous imprisonment. It appears that appellant, Mulai Singh, was de-
fendant to a suit in Civil Court instituted by one Balak, for the value of
the produce of three mangoe trees said to be misappropriated by accused
and his uncle. The accused claimed the trees as his, and in proof of his
title put in certified copies of the village Khasras for years 1293, 1294,
1295, 1301, and 1302 Faslis. These certified copies had an entry to the
eflEect that the trees in dispute were in those years in possession of one
Biseswar Singh who was the appellant's grandfather. The Munsif came
to the conclusion that entries in Khasra were forgeries and instituted a
criminal prosecution against the appellant, which has resulted as stated.
At the outset of this judgment the learned Vakil, w^ho appears for appel-
lant, has argued that as the copies filed by the accused were correct copies
of the Khasras, no offence under section 471, was committed by his client.
He was charged not with dishonest use of forged copies but with dishonest
use of forged Khasras. The learned Vakil has not disputed the finding of
the Court below that the entries in the Khasras relied upon by the appel-
lant are interpolations, and as to this there cannot, I think, be any reason-
able doubt that the entries in the Khasras are forgeries. The appellant
took copies of these forged entries and put those copies forward as evidence
in support of his defence. I have no hesitation in holding that this was
a use by him of the forged document. It was further argued on the
appellant's behalf that there was nothing to show that he knew or had
reason to believe that the Khasrsa were forgeries. In my opinion the



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256 The Criminal Law Journal Reports. [Vol. Ill

UMES CHANDRA GUPTA V. EMPEROR.

evidence on record is sufficient to show that he must have known the
Khasra entries were forged. It is proved that the trees were never in
Biseswar Singh's possession, and the accused must have known, therefore,
that the entries were forged and had been made by some one to support
the defence he set up to the suit. It follows from this finding that his use
of the Khasras was a dishonest use. I find no ground for interference,
and I dismiss the appeal.

Ajypeal dismissed.



(10 C. W. X, 322.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Jan. 8 [CRIMINAL REVISION Nos. 1154 to 1166 of 1905.] 1906.

Present : — Mr. Justice Brett and Mr. Justice Stephen.

UMES CHANDRA GUPTA and 13 others,— Petitioners,

Versus
EMPEROR— Opposite party.

Police Ad (V of 1861 J, m, IS^ SO^Proserttfion of itpenal Cmxtahh.^ for iTfuml to act as
such,

Section 29 of the Police Act (V of 1861) does not apply to a Special Constable who refuses
to act as such.

The facts of the case material to this report will appear from ihe
judgments.

Messrs. Bill, P^^gh, A. Chaudhuri, K. X Chaudhitri and Babu Pro-
motha JSa(h Sen for the Petitioners.

The Advocate-General (Mr. O'Kinealy) and Mr. Sinlia for the Crown.

The Judgments of the Court were as follows : —

Brett, J. — On the 1st December last the Petitioner, Umes Chandra
Gupta, presented a petition to this Court stating, inter alia, that on the
14th November 1905, he and 13 others had received from the District
Superintendent of Police, Rungpore, certificates appointing them Special
Constables under Act V of 18()1 and that on the following day, the 1.5th
November, they all received orders from the District Superintendent of
Police to attend at the Police lines, Rungpore, at 7 a. m. On the 16th
November two only of their number, Babu Joy Candra Sarkar and Babu
Satis Chandra Siromani, attended at the Police lines and were made io
drill for a short time and were supplied with written instructions as to
their duties. On the IGth November the Petitioner with the 13 others
including Babu Joy diandra Sarkar and Babu Satis Chandra Siromani
sent letters to the District Superintendent of Police refusing to act as
Special Constables. On the same day the District Magistrate of Rungpore



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Vol. Ill] The Criminal Law Journal Reports. 257

UMES CHANDRA GUPTA r. EMPEROR.

passed an order directing the prosecution of them all under sec. 19 of Act
V of 1861 and summons under that section were issued to them by Monlvi
Abdul Malek, Deputy Magistrate, to whom the cases had been made over
for trial by the District Magistrate.

On the evening of the 16th November the District Superintendent of
Police sent to the Petitioner and to the others, excluding Babu Joy
Chandra Sarkar and Babu Satis Chandra Siromani, Police belts, batons
and copies of the above-mentioned written instructions as to their duties.
They all refused to keep them stating in explanation, " as we have already
refused to serve, the appointment of Special Constables being illegal we
refuse to take [belts and batons." In the evening of the same day Babu
Joy Chandra Sarkar gave to the District Superintendent of Police a
notice of suit for damages for Rs. 10,000.

On the 17th November on a report made by the District Superin-
tendent of Police the District Magistrates ordered the prosecution of the
Petitioner and the 13 others under sec. 29 of Act V of 1861 and made
over the cases to Moulvi Abdul Malek, Deputy Magistrate, for trial.

Thereafter the Petitioner and the others applied to the District Magis-
trate for certified copies of the order or proceeding, appointing them
Special Constables and of the police-report or other report on which the
order was based, but the application was, it is said, refused. Subsequent-
ly the prosecution ordered against Babu Baroda Prasad Bagchi one of the
persons who had been appointed Special Constables was withdrawn by the
District Magistrate. The Petitioner and the 12 others then applied to
this Court in the exercise of its Criminal Revisional Jurisdiction to call for
the records and to order that the prosecution of the Petitioners under
sees. 19 and 29 of Act V of 1861 be quashed or to order that the cases
be transferred from the file of Moulvi Abdul Malek, Deputy Magistrate of
Rungpore, to the file of some other competent Magistrate in some other
District for trial.

This Court granted rules on all the applications in the following terms
calling on the District Magistrate of Rungpore to show cause why the
orders, dated the 16th and 17th November, directing the prosecution of
the Petitioners under sees. 19 and 29 of Act V of 1861 should not be
quashed or set aside on the ground that those proceedings had been
ordered without sufficient reasons in law. The District Magistrate was at
the same time directed when showing cause to forward to this Court any
orders passed by him under sec. 17 of Act V of 1861 and papers or pro-
ceedings relating thereto. Rules were also issued on the District Magis-
trate in the alternative to show cause why if the prosecutions be not
quashed the cases should not bo transferred for trial from the Court of



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258 The Criminal Law Journal Reports. [Vol. Ill

UMES CHANDRA GUPTA r. EMPEROR.

Moulvi Abdul Maiek, Deputy Magistrato of Rungporo, to the file of some
other Magistrate of competent jurisdiction in some other district.

The rules have all been heard together and are dealt with in this
judgment.

The Advocate-General has appeared to show cause on liehalf of the
District Magistrate and the Petitioners have been represented by Counsel
in support of the rules.

The District Magistrate, Mr. Emerson, who passed the orders having
l>een transferred to another district, his successor has submitted an explana-
tion from Mr. Emerson. An affidavit by Mr. Luffman, District Superin-
tendent of Police, has also been filed with two annexures, Wr., (A) an
anonymous petition, dated 2nd November 1905, purporting to proceed
from all the cloth merchants of Rungpore town addressed to the District
Magistrate and (B) A report thereon addressed to the District Magistrate
of Rungpore by M. Jalaluddin Ahmed, Inspector of Police, Rungpore,
dated the 14th November 1905. The following other papers have been
laid before us : A report from the District Superintendent of Police, dated
the 14th November 1905, purporting to be under sec. 17 of Act V of 1861
asking that 21 persons named therein should be appointed Special Con-
stables and the order of the District Magistrate passed thereon on the
same date, also applications by the Petitioners for copies of the orders
appointing them Special Police (constables, and of the report on which
they were based with the orders passed thereon. It appears from these
that order was passed on the application of Babu Rajani Kanta Mukerjee
to grant copy of the order but not of the police-reports. The applications
by the other Petitioners appear to have been refused.

In support of the rules there are the affidavits of the Petitioners filed
with their applications.

The only materials therefore before the Court at present are certain
affidavits and written explanations in addition to the reports, orders and
other papers connected with the appointment of the Petitioners as Special
Constables and their refusals to act as such.

Now the case for each of the Petitioners is briefly as follows : — It is
alleged that there were no reasons which justified the District Magistrate
in proceeding under the provisions of sec. 17 of Act V of 1861 to appoint
Special Constables at all for the town of Rungpore at the time the order
appointing them as such was passed. The Petitioners as leaders or pro-
moters of the agitation against the Partition of Bengal and of the Swadeshi
Movement and because they refused to dissuade the school-boys from
taking part in the agitations, had incurred the displeasure of the District
Magistrate and therefore he appointed them as Special Constables as a



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Vol. Ill] The Criminal Law Jotjrnal Reports. 259

UMES CHANDRA GUPTA t\ EMPEROR.

punishment. The order was passed with the object not of preventing a
breach of the peace or to maintain order or because the ordinary Police
force of the District was not sufficient for the preservation of the peace
and for the protection of the inhabitants and the security of property, but
of stopping the agitations. It is contended that his act in appointing the
Petitioners was in fact an abuse of the law and that it was done out of
malice. It was further contended that if these facts be established, on the
materials before this Court, we have not only the power in the exercise of
the Criminal Revisional Jurisdiction of the C^ourt to interfere at the
present stage and quash the prosecution, but that it would be our duty to
do so. In support of these contentions reliance is placed on the decisions
of the Court in the case of Gopinath Paryali ami others v. The Empress
(I), and the cases of Chandi Pershad v. Ahdur Rahaman (2) and Choa
Lai Das v. Anant Pershad Missir (3).

In showing cause to the rule the Advocate-General has relied on the
provisions of sec. 17 of Act V of 1861 and has contended that under that
section absolute discretion is given to the police-officer to make the applica-
tion for the appointment of Special Constables, and that it is for him to
determine whether there is or is not necessity for it. On receipt of the
application the District Magistrate is bound to comply with it unless he
see cause to the contrary. The High Court has no more power to fetter
the discretion of the police-officer than the District Magistrate and has no
power in the exercise of its Criminal Revisional Jurisdiction to interfere
with or set aside what is purely an executive order. He has contended
that there are no good grounds for the imputations of malice against the
District Superintendent of Police or the District Magistrate ; that the
grounds put forward by the Petitioners are not based on fact, but on
imagination, and that the Magistrate in his explanation and the papers
which he has forwarded with it has given a complete and satisfactory
answer to the case set forward by the Petitioner. He has pointed out
that if the imputations of malice were sustainable the proper remedy of
the Petitioners would be by an action in the Civil Court for damages,
with which in fact one of them lias threatened the District Superintendent
of Police and not in an application to this Court for the exercise of its
Criminal Revisional Jurisdiction at this stage of the case. He has con-
tended that this Court has no power at this stage to interfere with the
order of the Magistrate directing the prosecution of the Petitioners for
refusal to act as Special ( 'Onstables though at the same time he has asked
us to decide whether Special Constables can be prosecuted under sec. 29

(1) 10 C. W. N. 82 (188G). (2) I. L. R. 22 Cal. 131 (1804).

(3) I. L. R, 25 Cal. 233 (1897).



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260 The Crdcinal Law Journal Reports. [Vol. Ill

FMEg CHANDRA GrPTA r. EMPEROR.

of Act V of 1861. The points, which have arisen for our consideration,
are :

1. Whether this Court has power in the exercise of its Criminal
Revisional Jurisdiction to go behind the application made l)y the police-
officer to the District Magistrate for the appointment of Special Constables
and to enquire and determine if the grounds were sufficient.

2. Whether this Court has the power to interfere with the order of
the District Magistrate, appointing certain persons a.s Special Constables
on such application.

.3. Whether, if this Court has not the power to do either of these
two things, it has the power to set aside the order of a Magistrate, direct-
ing the prosecution of persons, who have refused in compliance with his
order to serve as Special Constables, and to quash the proceedings taken
thereunder on the ground that they were not suitable persons to be so
appointed and the appointments were made out of malice.

4. Whether, if this Court has the power to set aside the Magistrate's
order, it should exercise it at the present stage in the cases now under
consideration on the materials which have been laid before us by both
sides.

So far as the application made by the police-officer is concerned and
the grounds on which it is based, there can, in my opinion, be no doubt
that this Court has no power to go behind it and inquire whether it was
based on sufficient grounds. It is a purely executive order.

The learned Counsel, who has appeared on behalf of the Petitioner,
Mr. P. K. Mukerjee, has however contended that the Magistrate's order
appointing Special (-onstables is a judicial order and in support of this
view has relied on the case of Gopinath Paryah and others v. Kmpress (1)
and apparently on the procedure laid down for the appointment of Special
C!onstables in England. A reference to the case relied on shows that no
such opinion was expressed by the Judges in their judgment. Tlie head-
note to the report is misleading. Nor does the procedure, followed in
England, in our opinion, support this view. It is true that there the Magis-
trate acts on the oath of one person, but there is nothing to indicate that
his order has any of the characteristics of a judicial order. Sec. 17 of
Act V of 18G1 lays down that the Magistrate shall act on the application
of the police-officer and there is nothing whatever in the section to require
him to enter into evidence and to determine whether the application is or
is not based on sufficient grounds. He is to accept the application as
sufficient unless he se?s cause to the contrary apparently on the face of
the application. In my opinion the order is purely an executive order,



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\^ol III] The Criminal Law Journal IReports. 261

UMES CHANDRA GUPTA r. EMPEROR.

the law only requiring that it shall be made by^ a responsible officer in the
position of a Magistrate. The fact that the application may be made to
the nearest Magistrate so far from indicating that it is to be made after a
judicial enquiry, goes to show that the law contemplates the urgency for
the order and the necessity of allowing the police-officer to apply to the
nearest Magistrate available.

The position of the Magistrate is similar to that which he holds when
he is called on to act under the provisions of Ohap. IX of the (Jode of
Criminal Procedure for the purpose of dispersing unlawful assemblies.
In neither case is he acting judicially.

Taking then the order to be an executive order the question is whether
this Court can interfere with it in the exercise of its Criminal Revisional
Jurisdiction. In my opinion this Court has no power under the law to
interfere with the order itself supposing that it appears on the face of it
to be one regularly passed in accordance with the provisions of sec. 17 of
Act V of 1861.

The Magistrate, who passed the order, has explained thjit he did so on
the application of the District Superintendent of Police, that he saw no
cause to the contrary, and that on the other hand he was convinced by his
own knowledge of the- state of afiEairs then prevailing in the town of
Rungiwre that the appointment of Special (/onstables was necessary. The
District Superintendent of Police in his affidavit has given his grounds
for making the application. They appear to have been that from the
beginning of November certain school-boys were parading the street,
mafkiiig noisy and riotous demonstrations, which-might at any time have
led to disturbance. Further he received from the District Magistrate on
the 6th November the anonymous petition from the cloth merchants of
Rungpore to the effect that they had been tyrannised over and compelled
to pay fines by certain gentlemen of the town, leaders of the " Swadeshi
Andolan," because they had sold goods of foreign manufacture. This
petition was sent to an Inspector for enquiry and the District Superin-
tendent received his report thereon on the 14th November. That report
certainly states that merchants had been threatened and fined for selling
goods of foreign manufacture, and further that the Mahomraedan students
had been interfered with by the Hindu students on their way to school.
These in themselves afford ample grounds for the application provided the
public officer was satisfied that the permanent staff of Police were not
sufficient to maintain order and preserve the i)eace. With this last ques-
tion we have certainly no power to deal.

It has, however, been suggested on behalf of the Petitioners that the
application was not made by the police-officer spontaneously and that i\iU



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202 The Ciuminal Law Journal RiEPORts. [Vol. lit

UMES CHANDRA GUPTA V. EMPEROR.

is clear from a passage in the affidavit of the District Superintendent in
which he says that he reported his opinion that a breach o£ the peace was
probable, to Mr. Emerson, the District Magistrate, and " after consultation
with him " he submitted the application. But even if the application
wore made after the police-officer had consulted Avith the Magistrate it
would not on that account be open to objection as an abuse of the law.
The District Magistrate as smh is responsible for the peace of the district
and exercises general control over the Police force. I hold that in the
present case this Court has no power to interfere with the order appoint-
ing the Petitioners as Special Constables, the order being purely an execu-
tive order.

The next point for consideration is whether this Court, even though it
may have no power to interfere with the order apfwinting the Petitioners as
Special Constables, still has power to interfere with the order directing
their prosecution for refusal to serve as such if we should be of opinion



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 55 of 91)