Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

. (page 57 of 91)
Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 57 of 91)
Font size
QR-code for this ebook

ed an instructional parade. The Petitioners have all unequivocably
refused to accept the appointment. These facts seem to show that if the
only object in ai)pointing Spv-^cial Constables was to strengthen the ordinary
Police force their appointm?nt singularly failed in effecting that object.
And when we find that thirteen of th? person* so appointed had taken
more or less conspicuous parts in the movements that led to Special Con-
stables being appointed, I find it impossible to avoid a suspicion at least
that this failure may in part have be?n anticipated.

Turning to the affidavit of the Pj'.Ij ^ Sap.^rintendent and the explana-
tion of the Magistrate, we find the following facts : On the l-ith of Nov-
ember an Inspector of Police in reporting on the truth of the facts con-
tained in an anonymous petition to the Magistrate gives the names of 33
persons who he says are taking an active part in the movement relating to
foreign made goods. Of these person^ ten were appointed Special Con-
stables. On the same day the Superintendent in his application to the

Digitized by


Vol. Ill] The Cbiminal Law Journal Reports. 271


Magistrate gives a list of persons whom ho suggests should be appointed,
stating that all of them " possess some influence in the town and over the
boys." In making the order on the same day the Magistrate writes :
" We must enlist the services of the leaders of the school-boys' movement
[on] the side of peace." On the 15th November a Police district order
was published setting out the duties that the Special Constables were to
perform. Most of these were details as to parading the streets and so
forth ; but the Constables were to attend at the Police lines " to be taught
marching, turning and saluting and were to report " any information
regarding the Swadeshi Movement, the boycott of European goods, the
anti-partition and anti-Government agitations that they may happen to be
aware of. The Magistrate after explaining the state of the district that
made him consider the appointment of Special Constables necessary, tells
us that he considered it " necessary to increase the Police force by utiliz-
ing the leaders of the Hindu community, and the people who were leading
the school-boys, as Special (Constables. The immediate effect of the
appointment was absolute quiet, and an extra Police force from outside
being procured, and the Special Police being discharged, and defaulters
prosecuted, all danger was, for the time arrested. " I am " he adds
" firmly convinced that it is only the present prosecution that has put
an end to the aggressive character of the street demonstrations in Rung-
pore, and that if such measures had not been taken, a serious disturbance
was reasonably to be apprehended."

Do these matters in any way affect the suspicions I have referred to ?
Do they prove that the enlistment of Special Constables had any object
other than the strengthening of the ordinary Police ? That ten persons
who were reported as taking an active part in a movement, the effects of
which the Special Constables were to suppress, were themselves made
Special Constables, is in itself a curious fact, and suggests that the force
raised would not be very highly trusted as a Police force. It was, no
doubt, desirable that the Superintendent should wish to secure the services
of persons of influence in the town ; though it was not the influence due
to their position that they were expected to use on the school-boys from
whom trouble was apprehended. It is difficult to reconcile the addition
by the Magistrate to his order, of an explanation of his selection of persons
to be appointed, with the case made on his behalf. He is enlisting the
leaders of the school-boys on the side of peace ; the inference is that they
were on the other side, that their appointment as Special (Onstables might
be expected to make them change their side, and that this is why they
were enlisted ; that is, the Magistrate had some other object in view than
strengthening the ordinary Police force, which is the Petitioners' case.
As to the coTitepts of the Police order it is to be remarked that the actual

Digitized by


272 The Crimikal Law Journal Reports. [Vol. Ill


training that the constables underwent was compressed in the shape of a
few minutes ; but this may be explained by the fact that the men appoint^
ed were apparently quite useless for the purpose of strengthening the
ordinary Police, and more training would not have made any difference
in this respect. It may be doubted how far saluting was a necessary part
of the instruction to be given to such persons ; and it is plain that such
instruction would not reconcile persons to a position which they were
unwilling to accept, the giving information regarding the boycott of the
European goods and anti-Government movements would, no doubt, be a
dutv of the ordinary Police ; but casting this duty on the persons who
wore taking an active part in the movements they were to report on, lends
colour to the Petitioners' complaint that their appointment was made with
ulterior objects. I cannot read the Magistrate's explanation without find-
ing my suspicion that this may have been the case confirmed. He repeats
that the persons appointed were leading the school-boys and they seem to
have been appointed for this reason. Absolute quiet which was of course
the object, and I believe the only object, that the Magistrate had in view
was produced by their appointment. But was this because the ordinary
Police force was supposed to be strengthened, which it in fact was not,
or was it because the appointment made the persons appointed as it were
hostages for the peaceable behaviour of others over whom they have
control ? The aggressive character of the street demonstrations was put
an end to and the apprehension of a serious disturbance was removed not
by the appointment of Special Constables but by their prosecution. To
my mind the conclusion is irresistible that the Magistrate appointed some
at least of the persons he did appoint not because they could add to the
strength of the Police but because he wished to influence either their
action in relation to certain public movements, or through a fear of theit
prosecution, the action of persons over whom they had influence. The
movements may have been illegal, and I am willing to believe did in fact
lead to illegalities, the persons appointed may have acted in a blameworthy,
possibly in an illegal way, in reference to the movements. The Magis*
trate, I have no doubt, acted solely with a view to prevent Avhat he con-
sidered a probable breach of the peace. His action may have had the
effect he claims for it. But none of th?^e facts make it legal. The
appointment of Special Constables is to be for one purpose and for one
purpose only, namely, to strengthen the ordinary Police in the ordinary
meaning of that word. It is not to be used for the purpose of influencing
persons who are suspected of promoting disorder or disaffection, otherwise
than by the fear of physical force not even though that influence can
correctly be described as enlisting them on the side of peace. The appoint-
ment of Special Constables for any other purpose than that mentioned

Digitized by


Vol. Ill] The Criminal Law Journal Reports. 273


may obviously at any moment lead to such an abuse of the law as took
place in the case we have already referred to.

Under the circumstances I consider that it is shown that the Magis-
trate's order was made with an object that was illegal, and that it was
therefore an illegal order, and aflFords a good ground of defence to the
criminal proceedings now before us. Bearing in mind and completely
accepting the law as laid down in this Court in Choa Lai Das v. Anant
Pershad Missir (3) I hold that this is one of the exceptional cases there
referred to. The only reason that I can, or that I need, give for this
opinion, is that no further investigation into the facts referred to in the
documents before us, could possibly, as far as I can see, remove the effect
they have made on my mind. I am therefore of opinion that these rules
should be made absolute, and that the orders of the 16th and 17th
November ought to be set aside, and all subsequent proceedings quashed.

[Owing to this difference of opinion the case was laid before the
Chief Justice for reference to a third Judge. His Lordship directed the
ease to be heard before himself, and it was fully re-argued before him on
26th and 27th January 1906, and judgment was reserved. Before judg-
ment was delivered, however, the Advocate-General appeared before his
Lordship the Chief Justice and represented that, in accordance with his
Lordship's suggestion, he had communicated with the Ototetument of
Eastern Bengal and Assam as to proceeding fttrtber with the prosectttion
in these cases, and had received instructions to say that the Qovetnment,
in deference to his Lordship's suggestion, did not wish to proceed further
with the prosecution.

His Lordship, addressing the Advoeate-Gkneral, said :—

Mr. Advocate-General.— I think this is the most befitting conclusion
to this controversy. At the same time I think it is only fair to say, agree-
ing with Mr. Justice Brett and Mr. Justice Stephen, that there is no
ground for the imputation that either the District Magistrate or the Super-
intendent of Police acted maliciously in the matter].

Prasenition tcitltdratvn.

Digitized by


274 The Criminal Law Journal Reports. [Vol. Ill


(1 M. L. r., 31.)

[CRIMINAL REVISION No. 3C5 of 1905.]

Present : — Sir Charles Arnold White, Chief Justice, Mr. Justice

Subramania Aiyar, Mr. Justice Davies, Mr. Justice Benson

and Mr. Justice Moore.


Code uf Criminal Procedure, «ee. 203 — Order dit,mifming a comjdaint— Rehearing of the
Raine complaint with or icithtmt order for further enquiry ,

Held by a majority of the Full Bench (Subramania Aiyar and Davies, JJ. dissenting) that
a Court dismissing a complaint under sec. 203 of the Code of Criminal Pi'ocedure is competent
to rehear the complaint without any onler for further enquiry by a higher tribunal

Fuj^her, held ky :~Mliife, C. J, that an order under sec. 203 is not a judgment within
the meaning of s. 369 of the Criminal Procedure Cotle : and that the revisional powers conferr-
ed on Superior Courts cannot be regarded as in any way impliedly restricting the jurisdiction
conferred on Magistrates to enquire into offences.

Benson, J, - Quare, whether it would not make any difference if the magistrate seeking to
revive the complaint be different from the Magistrate that acted under sec. 203.

Moore, J. — Qua re, whether the view would not be different if the case was one of discharge
under sees. 253 and 259.

Subramania Aiyar, J.— (Davies, J. concurring). If a person, against whom & pri ma faeie
case had been made out but who was acquittetl after trial, U entitled to be protectetl, then a
person against whom the case is so weak as not to warrant his being put on trial, is a fortiori
entitled to protection.

The Public Prosecutor for the Crown.

T, R, Ramacliandrairer for the accused.

T, Rangaclianar^ amtcus cxtnw.

The Court delivered the following judgments : —

The Chief Justice : — The general question argued before us in this
case was whether it was open to a magistrate to re-hear a complaint, which
has been dismissed by an order under section 203 of the Criminal Proce-
dure Code, the order of dismissal not having been set aside by a higher

In support of the view that the magistrate had no such power it was
urged that a power to re-hear or revise, like a right of appeal, was the
creature of statute and that in the absence of express statutory provisions
conferring such power, the power did not exist. I am not prepared to
accept this proposition. It seems to me that the question whether there
is a power to re-hear must be determined with reference to the enactments
which create and regulate the jurisdiction of the magistrate. The Code

Digitized by


Vol. Ill] The Criminal Law Journal Reports. 275

In re chinna kaliappa gounden and subbier.

confers upon a magistrate jurisdiction to enquire into an alleged offence.
Prima facie^ therefore, such jurisdiction exists in the case of an alleged
offence. It must be held to exist unless it appears that something has
been done, or some event has occurred, which has tlie legal effect of de-
priving the magistrate of this jurisdiction.

The question therefore is whether the fact of dismissal of the com-
plaint by an order made under section 203 operates so as to deprive the
magistrate of jurisdiction to enquire into the offence alleged in the com-
plaint. The first matter to be considered is — is there any provision of the
Code which lays this down in express terms. There is no such provision.
In his judgment in yUraton Sen v. Jogesh Chundra Bhtttacharjee^ 7. Z. R,
23 CaL^ 983^ Banerjee, J., observes (p. 988), " there is no express provi-
sion in the Code to the effect that the dismissal of a complaint shall be a
bar to a fresh complaint being entertained so long as the order of dismissal
remains unreversed." I do not think that, in substance, with reference
to the question of jurisdiction, any distinction can be drawn between en-
tertaining a fresh complaint and re-hearing the original complaint. The
argument that the magistrate, having made the order of dismissal is functus
officio applies equally to both cases, and the formality of putting in a fresh
complaint cannot be said to create a jurisdiction, which, without such form-
ality, a magistrate would not have possessed.

It was argued that an order under section 20.3 was a " judgment " to
which s. 369 applied. Section 369 provides " no Court other than a High
Court, when it has signed its judgment, shall alter or review the same
except as provided in sections 395 and 484 or to correct a clerical error."
The Code does not define ' judgment' but section 367 lays down what the
language and the contents of a judgment are to be. By section 367, the
judgment is to contain the decision and the reasons for the decision. Sec-
tion 203 enacts that when a magistrate dismisses a complaint by an order
under that section, he shall briefly record his reasons for so doing. If an
order under section 203 is a judgment within the meaning of section 369,
this provision in section 203 is unnecessary and redundant ; or, to put it
another way,— the way in which it is put by Prinsep, J., in Dwarkanath
Mondal V. Beni Madliab Banerjee, 1. L. R. 28 CaL, 652 on p. 660— in the
case of an order of discharge as in the case of an order dismissing a com-
plaint, it is expressly required by the law that a magistrate should state
his reasons, and it may be taken that if it had not been so required, it
would have been unnecessary for the magistrate to state any reasons for
his order. Consequently in this point of view, the order does not consti-
tute a judgment.

In my opinion an order of dismissal under section 203 is not a judg-
ment within the moaning of section 369. It is to be observed that in the

Digitized by


276 The Criminal Law Journal Rkports. [Vol. Ill

In re chinna kaliappa gounden and subbier.

ce&e reported, /. L. R. 28 CaLy 652^ Ghose, J., who dissented from the rix
other Judges on the actual question for determination, was of opinion that
the order made in that case, which purported to have been made under
section 259 was not a judgment. The Judge ol>ser>es that an order of
disrliarge made after an investigation of the merits is a judgment, but he
points out that there is, in this respect, a distinction between a summons
and a warrant case, and he is careful to limit his observation to a war-
rant case.

It was further argued, in support of the view that the magistrate had
no jurisdiction to ro-hear, that even if the order made under section 203
were not a judgment within the meaning of section 3G9 the general prin-
ciple wa« applicable and the order was final unless and until set aside by
a superior tribunal. What general principle ? I know of no general prin-
ciple which can be said to bo applicable. It cannot be the principle on
which the right to plead autrefois acquit is based, because section 403 says
that for the purpose of the exercise of this right the order Ls not an ac-
quittal. The argument ah ineonrenienti is of little weight. A magistrate
who allowed the re-hearing of complaints which he had purported to dis-
pose of to develop into a habit would, no doubt, attract the attention of
the higher authorities. The question of jurisdiction, as I have already
said, is to be determined by an examination of the provisions of the Code
which confer and regulate the jurisdiction. There is no express pro\Tsion
of the Code which in express terms either gives or takes away the juris-
diction to enquire into an alleged ofEence with regard to which a complaint
has been brought and has been dismissed. But in my ofunion the Code
implicitly, though not directly, gives the jurisdiction. The explanation to
section 403 enacts that the dismissal of a complaint is not an acquittal for
the purposes of that section. The purpose of the section is to protect the
person who has been acquitted from liability to be tried for the same
offence. The explanation says that in the case of a dismissal he is not so
protected. No doubt the section only applies to the case of a person who
has been tried, and in the case of dismissal there has been no trial. Strictly
speaking neither the section nor the explanations apply to a dismissal ; but
it seems to me clear that what the legislature meant to lay down was that
a dismissal is not a bar to further proceedings in respect of the alleged
offence and that the right to take further proceedings is not dependent
upon the exercise by the higher courts of the powers of revision conferred
by the Code. If there is no bar to further proceedings, there is jurisdic-
tion to entertain these further proceedings, and if there is this jurisdiction
there is nothing in the Code which deprives a magistrate of jurisdiction by
reason of the fact that he has made an order dismissing the comjJaint*

Digitized by


Vol. til] ^HE Criminal Law Journal Heports. 211


That this is the true construction of the explanation to section 403 seems
to me clear when we read the explanation by the light of the correspond-
ing enactments contained in the Code of 1872 to which Mr. Rangachariar,
in his able argument, called our attention. Section 147 of the Code of
1872, which corresponds to section 203 of the present Code, contains the
provision. " The dismissal of a complaint shall not prevent subsequent
proceedings." This provision does not occur in section 203 of the Code,
but in section 403 we have the explanation that a dismissal is not an ac-
quittal for the purposes of that section. There is nothing in the explana-
tion in section 460 of the (^ode of 1872, which corresponds to section 403
of the present Code. Again section 215 of the Code of 1872 which corres-
ponds to section 253 of the present Code contains the explanation "a
discharge is not equivalent to an acquittal and does not bar the revival of
a prosecution for the same oflEencc." This explanation does not occur in
section 253 of the present Code, but in section 403 we have the explanation
that the discharge of the accused is not an acquittal for the purposes of
that section. There is nothing corresponding to this explanation in section
460 of the Code of 1872. The language of the Code of 1872 in dealing
with the effect of a discharge is even stronger than the language of that
Code in dealing with the effect of a dismissal. The language in the one case
is "does not bar the revival of a prosecution "; in the other "shall not
prevent subsequent proceed ingc<." In the case before us we are only con-
cerned with the question of dismissal, but if the legal effect of a discharge,
when process has issued to the accused and there has, or may have, been
an investigation on the merits, is not to operate so as to bar the revival
of a prosecution, it follows a fortiori that the legal effect of a dismissal,
when no process has issued to the accused, is not to operate so as to bar
the revival.

Turning once more to the Code of 1872, I find that section 210 which
provides for the withdrawal of a complaint contains a provision that a com-
plaint withdrawn under that section shall not again be entertained. The
corresponding section of the present Code (section 242) does not contain
this express provision, but it provides, in such a case for the acquittal of
the accused. The effect is precisely the same. It seems to nic that the
alterations effected in the present Code in connection with the matter
under consideration were merely drafting alterations and were not intend-
ed to effect and did not effect, any alteration of the law as laid down in the
Code of 1872.

I observe that in the course of the argument in the case reported in
/. L. R. 28 CaL it was contended that as there was distinct provision in the
Code of 1872 that a discharge was not to bar the revival of a prosocutiou

Digitized by


278 The CiimiNAL Law Journal KepohTs. [Vol. Ill


and no provision in the same terms in the present Code, the legislature in-
tended to curtail the power o£ revival, and Mr. Justice Ghose in his dis-
senting judgment in that case (See page GG7) and also in his dissenting
judgment in Mir Alimaxl Hossein v, Mahomed Askari^ /. L, jR. 29 CaL, 726^
(at page 733) appears to accede to this argument. The inference which I
draw is precisely the opposite to that drawn by the learned Judge. It
seems to me that the legislature in the present case did not intend to alter
the law as laid down in the Code of 1872 with regard to this question.
Assuming, as appears to have been assumed by the learned Judge, tliat
under the Code of 1872, in the case of an order of dismissal or of discharge
the magistrate making the order had jurisdiction to re-hear the case, I
think the law is the same under the present Code. If the legislature had
intended to alter the substantive law in a matter of jurisdiction they would
have done so expressly and directly and not by a side wind. To my mind
the alterations in the present Code amount to nothing more than a trans-
position of sections and, possibly, the adoption of a more scientific termi-
nology. In the cases in which the view has been taken that a magistrate
has no jurisdiction to re-hear, the judgments proceed mainly upon the
ground that, having regard to tlie provisions of section 437 which gives
power to the higher courts to make further enquiry into a complaint which
has been di^smissed, the legislature cannot have intended that the tribunal
which deals with the case in the first instance should have the powder to
re-hear. Now, section 437 is an enabling section enacted for the i)urpose
of giving powers of control and revision to the higher courts. I cannot
see how the conferring of such powers can be said to operate so as to cut
down the jurisdiction of the court which deals with the case in tlic first

As regards the authorities, so far as the Calcutta High Court is con-
cerned, Prinsep, J., points out in his judgment in the case reported in
/. />. li. 28 Cal. on page G59 it was frequently held under the Code of
1872 that a magistrate could re-hear a complaint, which had been dismissed,
though the Calcutta High Court thought proper to restrict the exercise of
the power to cases in which fresh evidence was forthcoming. I am bound
to say however, that I feel some doubt as to w hether the cases to which
the learned judge refers, viz., Hari Sinyh v. I>anisli Mahomed, 20 W. It
CrL 46, Kistoram Mohara v. Anis, 20 W. It CrL 47, Empress v. Donelly,
I. L. It 2 Cal 405 and In the matter of Dijahur Butt, 7. L. /?. 4 Cat,
647 altogether support his statement as to tlie course of practice in

In the case reported in I /.. It 23 Cat, 983 the judgment proceeded
upon the ground that when the Code lays down a procedure for having an

Digitized by


Vol. Ill] "tHE Criminal Law Journal Heports. 270

In re chinna kaliappa gounden and subbier.

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 57 of 91)