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 64 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 64 of 91)
Font size
QR-code for this ebook


iYimimi Procedure Cude (Act V of tSOSj, m. 470, 526—Affidant, fal*f alhgat'wnf
ii^~MaQittrate$ explufuUtOH — StatrmrMij* of jtersjfU in su/tport th^rt»,if—' Xeare^t Maghtrate
of the frit clots.- Presidency MugiM rate nit a Magidraie of the fird class- Practice —
Original Side.

Tliough ill nliowiiig cause to a Rule why a ctjnviotioii shouUl nol be wi aside it is not o|k'Ii
to the Maglntrate to Hubniit observations with a view to supplement or mUi to his judgment,
yet there is nothing to prevent him from sending along with his explanation in answer to a
Rule for transfer, statements of persons who might be in a position to contnulict the alle-
gations of miHcoitduct ma4]o again.^t the Magistrate by the i>etitioner in his application.

Sec. 467 of the Co.lc of Criminal Procc lure doa^ not appear to provide for the case of an
offence before a Court in a Presidency town. It cmpowen? a Court to semi a oawj for enquiry
or trial to the ncai-est Magibtratc of the fir^-t cla^s. The nearest Magistrates, namely the
Presidency Magistrate, is not a Magistrate of the tir^t class.

The practice on th'j Original Side of th? High Cjurt i* tj lay the imims before the
Governmfent Solicitor for him to tike action thereon if ha thinks lit. An analogous course ti:,,
of laying the pa|>er.'i before the Legxd Remembnmcer. was wloptol.

Tliefact^ necessarv' for the [mrposes of this report appear from the
judgment.

Jiabu JJebeiulra Chandra MuUivk for the Petitioner.

The judgment of the Court wa:< delivered by

Wmdntjfe^ J. — This Rule for a tran:<f<»r was granted on the strength
of statements contained in the affidavit of Jeeban C/handra Dutt, a cousin
of the petitioner, and in particular, the allegations that the Sub-Divisional
Officer of ,Bishunpur, Babu A. B. Bose, refused to entertain an application
by the accused Kedar Nath Kar under section 52(1, Criminal Procedure ( 'odt^,
and that he remarked, '' the Magistrate has rejected your application and
jx)u have now fallen into my hands.'' Both these allegations are stated by the
Magistrate, Babu A. B. Base to be absolutely false. He says with refer-
ence to the allegation that he did not receive the accused's petition person-
ally presented by the latter on the ground that there was no identification
of the accused*s signature by any Mukhtear, that he personally knows the
accused and that it would be quite unnecessary for him to require identi-
fication of bis signature. It has, however, been suggested by the learned



Digitized by



Google



XW The C'uiminal Law Juuknal Uei»urts. [Vol. Ill

KRDAK NATH KAU r. EMPEROU.

pleader who ap|)ear.s for the i)etitioiier that the reason assfi^tied fur rejection
of the petition by the Mag^^^trate was a sham one and that the real reason
why he did not aecept the {petition for an adjournment to enable an
application to be made for transfer to this Coart was that if he Iiad done
so he would have lx*en l)ound to stiiy proceedings iK?nding application to
this C^ourt. Tlie petitioner says that he failed to get the help of ony pleader
or mukhtear and so presented the petition i>ersonally. That |>etition is not
produced. The Magistrate further states that a pleader and two mukhtears
appeared for the accused. Three persons have been examined on oath by
tlic Magistrate and their statements have been sent to us. The two mukh-
tears of the accused say that they were present all along, that the accused
did not make any application under section 52G or ask them to identify his
signature and that they did not hear the Magistrate making any remarks
against their client. The accused's pleader swears that he did not hear
any such remarks and in (nirtieular that he did not hear the Magistrate
siiying •' The Magistrate has rejected your ap]>lication and you have now
fallen into my hands," The learned pleader for the accused in the first
place objects to the use of these statements and submits that the Magistrate
was not entitled to examine any one in order to answer personal charges
against himself. His contention is that the |>etitioner can file wlmt and
how many affidavits he chooses accusing a Magistrate of misconduct, but
the latter may not do so but must rest his case on a simple denial though,
by so doing, he may run the risk of having his statement rejected. This
contention is neither consonant with sense nor justice. The case referred
to, Ue vision case No. 2 of 11>04, 12th Februan- and that rei)orted in 7
C. W. X. 85*J have no bearing on the mutter before us. In the first
case, the ()uestion Avas whether there was an abandonment by the accused
of their right to have witnesses r(»-called for further cross-examination. In
the second, tlu' Court held that in showing cause to a Kule why a conviction
should not Im» set aside it was not oi>en to the Magistmtc to submit obsena-
tions with a view to supplement or add to his judgment. The case before
us is of an entirely different character. (Irave personal charges are made
against the Magistrate himself. It is next contended that the statements
of the j)leader and mukhtears arc not inconsistent with the jietitioner's
statement, as the latter was made before they arrived in (*ourt. There i^
nothing to support this before us. So far as the present application is
concerned, the case for a transfer fails. The matter wmnot, however,
be allowed to rest there. Serious charges have been made against the
Magistrate both in the affidavits and in the stiitements of the learned
pleader for the [)etitioner. These must l>e enquired into. If as stated by
the Magistrate the allegations are false, proceedings may have to be taken
against Jeeban Cliandra Dutt who made the affidavit containing these



Digitized by



Google



Vol. Ill] Thk CiiiMiNAL Law Joiknal Uki»okts. • -Wl

RAMAN'ATIl LASKAIl l\ JALA1>HAK 5SHAHA.

allegations on the assumption of the truth o£ which this Court granted a
Kiile. |i^* have considered the course wliich we sliould take in the matter.
►Sec. 47G of the Criminal Procedure Code does not appear to provide for
the case of an offence before a Court in a Presidency town. It empowers
a Court to send a case for enquiiy or trial to the nearest Magistrate of the
first class. But the nearest Magistrate, namely, the Presidency Magistrate
is not a Magistnite of the first class. We tliink we sliould follow a
course analogous to the practice on the Original Side of this Court,
according to which the papers are laid before the (^overmnent Solicitor for
liini to take action thereon if he thinks fit. We accordingly direct that
thisj judgment and the papers in this case should be laid 1x»fore the Legal
Reniembrancer for enquiry and such action thereon as he thinks proper.
We desire to say that we express no opinion in the matter b<'yond this that
we accept for the pur|M)ses of this llule the statement of the Magistrate
apparently supported as it is by the affidavits to which we have referred and
that we think a case has been made out for supposing that a false affidavit
luis been sworn and used before us. Whether this be so or not should be
the subject of further and caivful enquiry. In the cAent of the Legal
Remembrancer desiring to take action in the matter, he should apply on
notice to the party to bt» proceeded against and stating the result of such
enquiry for sanction to prosecute. The Kule is discharged.

J^ttle (IlitcluinjeiL



(3 C. L, ./., 360.)
IN THE HK4H COURT OF JUDICATURE AT CALCUTTA.

Dec. 15 [CRIMINAL REVISION No. 1077 of 1905.] 1905.

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

RAMANATH LASKAR and anothkiu

1 'erstfs

JALADHAR SHAHA.

(ytmiml Procedure Code (Art V of tSOSj. «rr. 133 ItntjK'ctlrr dnt'ieM of (he Matjiiitratc
find of the jHry—OiHtivtioH undrr Jndiun Penal Onle (Art XL\oflS(Wj,f(er,2S3.Hot
cjttclttifire,

A Magistrate |»asf<iiit^ an order against a person umler .<ec. I'MK CHniinal I'rocaUire (\m1c.
eannot do ho, rclylng merely upon a eonviction of the per^^on under sec. 283, Indian Penal
OjJu. in rc-ipeet of tbe same matter, but must follow tbe procedure laid down in sec. 133 and
the subsequent .sections uf the Criminal Procedure (^04le.

Prior to the apiwintment of a jury, the Magistrate should himself tletennine the cjuest'on.
which is tha m')st important (iue4i«.n in proceedings under sec. 133, Criminal Procetlure Cotle,
aiul which also gives him juristlictiou. namely, whether the jmthway in which the obstnictiou
U said t J have been erected was in fact a public [mthway or not,



Digitized by



Google



332 • The Criminal Law Journal Kepouts. [Vol. Ill

KAMANATH I^VsKAR t\ JALADHAR SHAH A.

Wbei-e the Magistrate referred the whole case to the jury and the jury retumal a verdict
that the order was a proi»er order but that the road was a private road. ^J

//f?///, it was ineuiidxjnt upon the Magistrate to determine the latter point and not to
leave it to the jury.

The factfs of the c«se arc as followst : —

The iietitioners had been etui victc<l under section 283, Indian Penal Code, for having
ei-ectetl an obstruction on an allcgetl public jiathway, by the Sub-ili visional Magistrate of
Manikgunge. Afi^r the said conviction, the Magistrate i-wueil notii-c again^ the petitionere
under sect ion. 133, i'riminal Procalure Code, for removing the obbtrurtion. The petitioiier
thereuix)n put in a petition alleging that the j>athway in question was not a public one auJ
that the conviction under section 283. Indian Penal Code, was wrong and praying that the
cane might be trie<l by the apiwintment of a jurj-. The Sub-ilinsional Magistrate rejectel
the said application ami summarily passed an oiiler under section 139. Criminal Procedure
Cwle. for removal of the obstruction, holding that the necMjssary questions ha<l been decided
by him in the i-ase under section 283. Intlian Penal Code. The i>etitioner thereuiwn moved
the High Court, and the High Court directed the Sub-divisional Magistrate to proccal in
acconUince with the provisions laid tlown in the Criminal Procedure Coile. The Sub-^livisioiial
Magistrate thereupon appointc*! a jurj* to consider whether the conditional order passed by
him was reasonable or proper. The jury returned a verdict to the effect that the ortlcr was a
proper order but that the roa«l was a private road. Tlie 8ubKli visional Officer holding that
the (luestion as to whether the r^iad was a public one or not was not within the province of the
jury to determine and had been ali-eady determinal by himself in the case umler section 283.
Indian Penal Co le. made the onler absolute. The petitioners, thereupon, moved the High
Court and a Rule was isiuetl uj^on the District Magistrate of Dacca as well as upon the opposite
party to sliow cau^' why the or«ler of the Sub-divisional Magistrate shou'd not be set a^idc
on the ground that the Sul>-<li visional Magistrate in i»a«sing the onler had foiled to comply
with the ilirection given to him by th? High Court or to determine distinctly and indei>endent-
ly in the proceecling'* taken under section 133, Criminal Proc»itlure Coile, whether the pathway
in question was in fact a public jmthway or not.

Ba1)U Afanmaflui Xa(h Mnkerji for the Petitjoner:^.

Babu Kritanta Kumar Base for the Opporfitc Party.

The judgment of the Court wa.s delivered by

Brett^ J, — 111 thi.s case a Rule was issued calling ujiou the District
Magistrate of Dacca to show cause why the order of the Sub-divisiomJ
Magistmte, dated the 2nd October 1905, under section 139, Criminal
Procedure Code, should not be set aside on the ground that the Sub-
divisional Magistrate in passing the order had failed to coinplv with the
directions given to him by this ( *ourt in its judgment of the 3rdJoiie
1905, or to determine distinctly and independently in the proceedings
taken under section 133, Criminal Procedure Code, whether the pathway
in c;uestion was in fact a public pathway or not.

It appears that a complaint was lodged by the opposite party that the
present petitioners had obstructed what was said to be a public pathway
and a provisional order was issued by the Magistrate directing the present
petitioners to remove the obstructigu.



Digitized by



Google



Vol. Ill] The Criminal Law Journal Reports, 333

RAMANATH LASKAR r. JALAPHAR SHAHA.

The petitioners seem then to have applied for the appointment of a
JnrVj but the Peputy Magistrate in consequence of the result of a criminal
041 so which was decided under section 283 of the Indian Penal Code refused
to appoint the Jury and made his order absolute. This order absolute was
set; a?»ide by (his Court in revision and the case was sent back to the
Majri'Strate in order that he might dispose of it in accordance with the
provisions of law. The Magistrate seems to have understood the order of
this Court as directing him only to appoint a Jury and dispose of the case
after receipt of their verdict. But clearly that order contemplated that
prior to the appointment of the Jury, the Deputy Magistrate should him-
self proceed in accordance with the provisions of the section and determine
the question, which is the most important question, in proceedings under
section 133 and which alone gives the Magistrate jurisdiction and which
in this case appe^irs to have been distinctly raised by the petitioners
throughout, namely, whether the pathway in which the obstniction is said
to' have been erected was in fact a jmblic pathway or not. The Deputy
Magistrate in the present proceedings referred the whole ease to the jury
and the jury returned a verdict to the effect that his order was a proper
order but the road was a private road.

It has l)een contended in opposition to the Rule that the petitioners
gave uj) their contention that the road was a private road and that as they
had done so, the jury could not determine the question whether it was a
private road or not. We do not, however, think that the petition to which
we have referred, of the 16th August, can be taken as relinquishment of
the petitioners' plea that the road was a private road and as the Magis-
trate couhl only pass an order under section 133 in the case of an obstruc-
tion to a public road, it was incumlient upon him to determine that i>oint
and not to leave it to the jury.

We, therefore, direct that the Rule be made absolute and the order
of the Sub-divisional Magistrate, dated the 2nd October 1905, be set aside.

The Sub-divisional Magistrate is directed to take any evidence which
the parties may wish to adduce to prove whether the r«.ad is a public road
or not. If the road is a public load, then the verdict of the jury can be
accepted as determining that the order is a proper one. But if he finds
that the road is not a public road, then no order whatever under ..ection
139 can be passed by the Magistrate.

Jiule moih ahsolute.



Digitized by



Google



i\M The (Criminal Law Journal Rkports*. [Vol. Ill

K^fPEROR r. ISMAIL Rl'STOMKHAK.

(S Bom. L. It, 237.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

Fell. U [(CRIMINAL APPEAL Xo. 580 of lt>05.] 1906.

Present: — Sir Lawroneo Jonkin?, K. C. T. E., diief Justice, and

Mr. Justice Russell.

EMPEROR r. ISMAIL RUSTOMKHAN.

Pruiti Cm\e (Aef XLVoflSGOj, t^ecx. 372, 373->^WHff or htftfiny minors for the pMr/io*^
of proxtifufhm—.WHor alrcacJij leadimj an itn moral life — PrntertUm of the section* to ^ttrk
mi nor A.

The offence of seUing or buying a minor for the purpose of prostitution, punishable under
8s. 372 and 373 of the Indian Penal CNkIc, is committed even where the minor, prior to *ueh
tnin«votion. lias l)ecn leading an immoral life.

Tho fiicts o£ the case are as follows : —

Ismail liustomkhan (accused No. 1) an»l Xunnie (accusctl N»>. 2) were chargc<l with liv-
ing committed offences under ss. 372 and 373 of the Indian Penal Cede re8i>ectivcly. in thai
they dealt with a minor girl Najima. Xajima belonged to Manma<l. At a very early age slic
lost hor pai-ents and was adopted hy one (Jangoii. Ismail went to Manmatl, gave Rs. 4 ^^
(iangoo and brought the young girl to Bombay. He then hande<l her over to his mistre**
Xunnie (accused Xo. 2) to 1x3 employal in her brothel a** a common prostitute and she was
leading that life until the Police heard of the matter and interfered. There was evidence to
show that th3 girl eamc<l as a common prostitute at Mamna<l.

The Presidency Magistrate, who tried the accused, acquitted thorn,
for reasons which he stated as follow^ :

•• Tho question is do ss. 372 and 373 of the Indian Penal Code apply U) such caFcs ? The
language of these set^tious shows that the intention of the legislature is to prot<K»t innocent
minors, and they must be so read as to^iean that the intent must bs to employ a minor for
immoral purp.>ses when she has not l)een so employed liefore, in other wonls, the obtaining
imsscssioii must be to employ n^wUj a minor for purposes made punishable under these
scr^tions."

Against this order of acquittal the Government of Bombay preferred
an appeal to the High Court under s. 417 of the (Vimirtal Procedure
Code. 1808.

Rao Bahadur Ur/^i/rf^o /. A7r//^(//', Government Pleader, (with Mr.
/•;. F. Xieholson. Puhlic Prosecutor) for the (Vown : — Accepting as
correct, the finding of the Magistrate that the minor Xajima was a pro-
stitute at Manmad, I submit that she is net deprived of the protection
which the law contemplates. The zeal of the legislature for the protection
of children under age is evident from the fact that the Penal Code pro-
hibits a man from having sexual intercourse with his wife if she is under
tho agi^ of twelve years,

Mr. IL X. Athavale, for the accused :— I submit that the accused
No. 2, Nunnie, should not have been charged at all. She is the kept



Digitized by



Google



Vol. Ill] The Chiminal Law Jourxal Reports. :W5

EMPEROR r. ISMAIL RlSTOMKHAK,

mistress of Ismail (accused No. 1), and lives with him in a hroth.*! house
to which a pan shop is attached. Ismail hrought the girl Najima from
Manmad and lodged her in the hrothel house with Nunnie.

The word "ohta ins " which occurs in s. ;173, Indian Penal (\)de,
does not moan ' receive/ Queen impress v. Chanda (1) is against me,
but I submit that even if the word " obtain " is construed to mean
' receive,' accused No. 2 c^innot lie sai<l to have received the girl in view
of the evidence in the case.

Tlie word?* "otherwise obtains possession ''have to ho construed
ejusdem generis with the words 'buys and hires' which precede them :
por Parker, J. in Srlnirasa v. Annasamt (2). They were not intende<l to
do more than include other modes of obtaining the same kind of possession
as that of a buyer or hirer : per Scotland, ( \ J. in DowJafh Bee v. Shaik
Alt (3). Therefore proof of a distinct arrangement between the disposer
and obtainer showing that the former completely made over possession of
the minor to the latter who obtained complete possession and control over
tho minor, becomes necessary. On this point the three learned Judges
who disposed of Dawlath Bee v. Shaik Ali (3) were of the same mind.
The evidence in the present case shows nothing of the kind.

I admit that Jie word ' otherwise ' has to l>e so construed as to give
duo effect to the scope of the section (MaxwcOl on the Interpretation of
Statutes, 3rd Ed., pp. 4(>9 and 47(i) ; but I submit that the law <loes not
contemplate the absolute prohibition of trafficking in the prostitution of
minors : Queen Empress v. Sukee liaur (4), Queen Empress v. Ahmed hhan
(5), also per Jackson J. in The Queen v. Xoor Jan ((»).

The accused No. 1 brought the minor — a prostitute — from Manmad
to Bombay and only facilitated her trade. He merely placed the girl in
the brothel managed by accused No. 2. He cannot be said to have dis-
j>osed of the girl to accused No. 2. But if it is urged that the mere fact
that he lodged the girl in a brothel with accused No. 2 is sufficient to
constitute a disposal within the meaning of s. 372, Indian Penal Code,
then, I submit, that the fact of her having been already a pro-^titute at
Manmad removes her from the protection of the law. The law as contained
in ss. 372 and 373, Indian Penal Code, is intended to protect the chastity
of minors and to prevent minors being disposed of hy other persons in
such a way as to put them to a life of prostitution : Venku v. MahalintM
(7) ; Queen-Empress v. Tippa (>>). It is directed against trafficking in

(1) (1805) I. L. R. IS All. 24. (2) (1892) I. L. R. l.". Mad. 323 at p. 33o.

(.3) (1870) :» Ma<l. H. C. l\. 47:J. (4) (1893) I. L. K. 21 (\xl 97.

(:») (1898) Ratanlals rnrcp. Cr. C. 9(;2. («) (1870) 14 W. \\. 39.

(7) (1888) 1. L. n. 11 Mad. 393 at p. 4oi. (8) (1892) 1. L. U. IT. Bom. 737.



Digitized by



Google



3;W Tbb Cbiminal Law Joi rnal Repobt^. [Vol. Ill

EMP^.ROR f. ISMAIL RT'STOMKHAX.

innocence and therefore a girf who ha.s Ikh^h already devoted to prostitu-
tion cannot come within its protection : i>er Holloway J. in Dowlaih
Bee V. Shaik Alt (3). It contemplates a change in the position or circum-
stances of tie minor which exposes the minor to the .danger o£ degrada-
tion : Kmperor v. Bhiimh Pandu (9). The lower. Conrt was, therefore,
right in holding that ss. 372 and 373, Indian Penal ('ode, must be so reacl
as to mean that the intent must Ik? to employ a minor for immoral pur-
poses when she has not been so employed l>efore.

Hao Bahadur Viutiuleo J, Kirtikar^ in reply : — The case of Queen-
Emprens v. ^ftkee Faur (4), cited by my learned friend, suggests the
inference that even if the minor had l>een a prostitute the offence would be
complete, if she was disposed of for the purjmses of prostitution for some
length of time.

Jenkim. C. J. — The first accused brought a little girl of 10 or 11 to
Bombav, and when she came here she undoubtedly was in his possession.
It is clear that the girl i)assed from his possession into the possession of
accused No. 2, and that accused No. 1 disposal of and accused No. 2
olitained possession of the girl in Bombay.

I further hold that tho disposal and the obtaining of possession was
with the intent th:it such minor should be employed or used for the pur-
pose of prostitution. The learned Magistrate, however, thought that the
fact that this little girl had b?cn employed as a prostitute at Manniad
deprived her of th.* protection that ss. 372 and 373 afford to minors. I
cannot agree with this view : It is not required by the words of the spirit
of the sections.

I am therefore of opinion that the acquittal by the Magistrate is
erroneous, and that both the accused should be convicted.

The sentence that we pass on each of the accused is two years*
rigorous imprisonment.

Rnssell, 7. — I am of the same opinion.

' (9) (190:>) 7 Horn. 1.. R. 562.



Digitized by



Google



Vol. Ill] f HE Okimikal Law Jourkal UepomV. 5af

EHPEBOR r. CIIINIA BHIKA KOLI.

(8 Bom. L. H., 240.)

IN THE HIGH COURT OF JUDK'ATUKE AT BOMBAY.

Feb. 22 [CRIMINAL APPEAL No. 75 of 1906.] IWO.

Pre*ent : — Sir Lawrence Jenkins, K.C.I.E., Chief Justice and
Mr. Justice Russell.

EMPEROR r. CHINIA BHIKA KOLT.

Practice— Plm of gnilty— Murder caites.

It is not in accoitlance with the usual practice to accept a plea of guilty in a cabc where
the natural sequence would be a sentence of death.

A man may pleatl that he hit some one who thereby die«l, and tliat he di<l it for the pur-
pose of takin<^' away the ornaments of the person injured without necessarily admitting that
he committed murder, for murder under the Penal Cotle requires a certain intention or a
certain knowlalge.

Chinia Bhika^ the accused, was charged under s, 302 of the Indian
Penal Code, for the murder of one Amrita Salu, on the 24th November
1905. He was placed for trial before the Sessions Judge of Nasik ; but
at the trial he pleaded guilty. This plea appears from the statement of
the accused which was as follows : —



Q.


Did you kill the bt)y Amrita" in the jungles of Makhmalabad.


A.


Yes.


Q.


For what purpose .'


A.


To take his ornaments.


Q*


How did you kill him .'


A.


With a stone.


Q.


Did you have any quarrel with him before killing him I


A.


No.


Q.


What ornamenta of his did you take .'


A.


Two bracelets and one earring.


Q.


What did you do with those ornaments .'


A.


I sold them.


Q.


Are these the ornaments now in Court .'


A.


Yes.


Q.


What did you do with the body /


A.


I left it there.


Q.




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 64 of 91)