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 69 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 69 of 91)
Font size
QR-code for this ebook

the case of the fifth, sixth and seventh accused for the orders of this Court
under section 307 of the Criminal Procedure Code, as he disagreed \vith
the finding of the jury that they were not guilty. The Sessions Judge
states that he is of opinion that these three accused are guilty of dacoity
and has recorded the grounds of liis opinion as required by law.

It is therefore necessary for us now to consider the entire evidence
and, after giving due weight to the opinions of the Sessions Judge and the
jury, to either convict or acquit these accused.

[His Lordship then proceeded to discuss the evidence.]
In this state of the evidence, I agree with the Sessions Judge that the
guilt of accused Nos. 5, G and 7 is established beyond reasonable doubt.
There is no record of the reason or reasons why the jury was of opinion
that they were not guilty. The law does not require them to give reasons,
nor does it empower the Judge to ask them their reasons, though he is
empowered to question them in order to ascertain what their actual verdict
is, and it is also open to tlie jury to state their reasons if they desire to do
so. In many cases they do this.

It has always, so far as my experience goes, been the invariable
practice of this Court to accept a reference like the present under section
307 and to deal with the evidence against the accused, treating the so-
called verdict of the jury as their ' opinion ' referred to in this section.
I have examined the records of all the cases referred under section 307
during the past three years. Their number is 73. I find that in 22 of
these the reasons for the verdict of the jury have been recorded or arc

Digitized by


Vol III] The Criminal Law Journal Reports. 373


referred to by the Judge in his letter of reference. But in the remaining
51 cases, there is no record of the reasons, and np reference thereto by the
Judge. There is nothing but the bare verdict, yet in not one of these
cases did the High Court call on the Judge to ascertain the reasons of the
jury or refuse to deal with the reference owing to the absence of such
reasons. In all these cases the High Court dealt with the reference on
the merits and acquitted or convicted the accused. Every Judge now in
the High Court and also the Chief Justice, who is on leave and Sir
Bhashyam Ayyangar and Russell, J J. (now retired) took part in one or
more of these cases. I am of opinion that the practice is correct.

When the Judge resolves to act under section 307 he is required by
law pot to record any verdict either of acquittal or conviction. The so-
called ' verdict ' does not bind him. It becomes for all legal purposes
a mere opinion, and this, I take it, is what section 307 refers to when it
speaks of the ' opinion ' of the jury. In the present case I think that
their ' opinion ' that the fifth, sixth and seventh accused are not guilty is
wrong. I would convict each of these accused Chellan (son of Mari),
Kamran, and Venkatraman, and pass on them the same sentence as that
passed on the accused Nos. 1 to 4 whom the jury found guilty, viz., six
years' rigorous imprisonment.

Davies, J. — I agree with my learned colleague that this appeal
(Criminal Appeal No. 319 of 1905) should be dismissed.

In this case the jury have unanimously found four out of the eight
persons, charged with dacoity, guilty, and the appeal of these persons has
been dismissed by us. The jury found the others, viz,, four persons not
guilty of the dacoity.

The Sessions Judge agreed with the jury that one of these four
persons was not guilty, but he has dissented from their verdict in regard
to the three other men and referred their cases under section 307 of the
Code of Criminal Procedure, for our decision.

Our duty under clause 3 of that section is not only to consider the
entire evidence, but also to give due weight to the opinions of the Sessions
Judge and of the jury. The opinions of the jury cannot mean their
verdict, for that is not a mere opinion nor is it styled as such as the
opinions of assessors are. The verdict is a final judgment by the jury as
to the guilt or otherwise of the persons charged before them, and it is
binding on the Judge, while ' opinions ' are not so. Besides, it is obvious
from the provisions of the Code that the opinions of the jury referred to
in clause (3) of section 307 are to be on the same par as those of the
Judge, that is, opinions given after the verdict, for the jury are not
enabled to pass opinions before their verdict. It is not until after the

Digitized by


374 The Criminal Law Journal Reports. [Vol. Ill


verdict is doliverod and the Judge disapproves of it, that the jurj's
opinions are required for submission to this Court to he considered along
with the Judge's opinions.

Now, the opinions of the jury in this case are not before us. Ap-
parently the Judge has not taken them, it may be because no express
provision is made to that end. But the legislature in directing that this
Court should duly weigh the opinions of the jury gives an implied
authority for the taking of such opinions. And the Sessions Judge is
advised in future to do so before referring a case under section 307 of the
( Viminal Procedure ( 'ode.

It is now too late to direct such an opinion to lye recorded in the case
})efore us. And in the absence of such opinions, we cannot perform the
functions, specially cast u[K)n us, of duly considering them. In this
particular case, where the Judge agreed with the verdict of the jury as
regards five persons out of eight, it requires the most potent arguments to
show that their verdict in the case of the other three persons was perverse.
I have little doubt that the jury could have given reasons in support of
their verdict if they had been asked for them, at least as strong as those
given by the Judge against it.

In these circumstances I am not prepared to give any weight to the
one-sided opinions of the Judge. And I consider that the verdict of the
jury upon the evidence before them should be upheld. The three accused
in whose case the reference has been made, that is, the fifth, sixth and
seventh prisoners, should therefore be acquitted and their release ordered.

The reference again came on for hearing under the provisions of sec-
tion 429 of the Code of Criminal Procedure before the Bench constituted
above, in consequence of the difference of opinions between DaWes and
Benson, JJ., the Court delivered the following

Judgment.—Sir S. Suhrahmania Ayi^ar, Offij. C. J., and Boddam, /.-
The ordinary dictionary meaning of the word 'opinion' in law is "the
formal decision of a Judge, an umpire, a councillor or other party officially
called upon to consider and decide upon a difficulty or dispute." The
term, so far as we are aware, is not used to denote the reasms for the deci-
sions themselves and we see nothing in the language of clause 3 of section
307 of the Criminal Procedure Code, to take the word ' opinions ' in it to
mean other than the respective conclusions of the jury and the Judge.
The use of the word 'opinions' in the clause in preference to the tern
verdict was probably owing to the conclusion of the jury in the circum-
stances lacking the effect which would att^ich to it if there were no differ-
ence between the jury and the Judge in the matter. The first paragraph
of section 307 itself is practically conclusive in favour of this view, as there.

Digitized by


Vol. Ill] The Criminal Law Journal Reports. 375


' opinion ' is used in contradistinction to the ' grounds ' for such opinion. Sec.
305 of the Code also supports ' the same view.' It provides inter alia for
cases of disagreement in trials in High Courts and the expression employed
there too is ' opinion.' The context of course precludes the word being
understood as meaning the grounds for the conclusion instead of the con-
clusion itself. Now it is conceded that when the Judge and the jury
agree the latter cannot be compelled to give reasons for their decision.
And section 303 which permits questions to be put to the jury in order
to ascertain what their verdict is, negatives by implication a power on the
part of the presiding Judge to question them otherwise. First to assume
that the word ' opinion ' in section 307, clause 3, means the reasons for the
conclusion and next on such assumption to argue that the Code authorises
the Judge in such cases to compel the jury to give them is not a legitimate
mode of construction. The practice of the Court as shown by a large
number of cases in which some or other of all the Judges of this Court
have taken part and in which they proceeded to decide the references,
though no reasons for the conclusion of the jury were elicited and sub-
mitted, is in accordance with the view we are taking. It follows therefore
that, expedient as it may be to have before this Court, when any have
been given, the reasons of the jury for the view taken by them in a parti-
cular case, the circumstance that no such reasons have been ascertained
does not warrant this Court to decline to go into the evidence and to arrive
at its own judgment after giving due weight to the views taken by the
Judge and the jury as to the guilt or innocence of the accused.

[Their Lordships then discussed the evidence.]

Differing from the jury we convict the fifth, sixth and seventh
prisoners and sentence them each to six years' rigorous imprisonment.

Sankaran Nai)\ J. — The leanied Judge who first heard this reference
have differed in their opinion. Mr. Justice Davies holds that it requires
powerful reasons to show that the jury's verdict, upheld with reference
to five of the accused is perverse with reference to the other three and as
their opinion for their conclusion which he considers to be distinct from
their verdict is not before us, it is impossible to say they are wrong upon
the one-sided opinion of the Judge alone, the Code requiring us to give
due weight to the opinion of the jury ; Mr. Justice Benson holding that
the verdict is their opinion came to the conclusion that on the evidence
the accused are guilty. I concur with the Officiating Chief Justice and
Boddam, J., in holding that once the case is referred to the High Court
under section 307 we have to form our own opinion on the evidence.
[After going into the evidence, his lordship agreed with the jury and
acquitted the accused.]

Digitized by


37C The Criminal Law Joubkal Reports. [ VoL in


(I. L. J{., 29 Mad^ 100.)

[CRIMINAL REVISION PETITION Nos. 34 a>p 35 of 1905.]
Sep. 19, 20 1905.

Premtt ;— Sir S. Subrahmania Ayyar, Offg. Chief Justico,

and Mr. Justice Boddam.

SURYANARAYANA ROW JlSD another— (Petitioners in Criminal

Revision Petition No. 34 of 1905),

BALA RAMAYYA (Petitioner in (^rimihal Revision Petition

No. 35 OF 1905),

EMPEROR— (Respondent in both).

CriMiml PtHtCfdnre (\t4e (AH V oflSdS), «. 470—JfereH¥e SitmmoHSfs Act, Madras (III
of 1809)— Departmental inqttir If not a Judicial prttceeding— Illegal order of proaecntiim—
High Court' if jHnoer to interfere on rerition under s. 476^ Cr. P. C,

One H. R., on being convicted ami scntencetl to pay a fine on a charge of tJieft, by a Sub-
Magistrate, paid the fine, but preferred an appeal to the Dejiuty Magistrate, who sent back the
case to the Sub- Magistrate for reconling further evidence. While the matter was thug pentl-
ing B. R. ma<le a complaint of bribery against the Sub- Magistrate. The Deputy Magistmte
who proceede<l to inquire dei)artmentally into the said complaint summoned B. R. to appetf
before him on a certain tlay but he did not appear, whereupon a warrant for his arrest was
ipsue*l, but it was returnetl unexecuted with the rejwrt that B. R. was not forthcoming. On a
J subse'iuent tlate when B. R. came to the Court of the Deputy Magistrate on some other biwi-
ncRs, the Deputy Magistrate directed him to execute two recognixances — one for appear-
ing before the Sub-Magistrate and the other for appearance before himself, and pending their
execution .he was detainetl by the Deputy Magistrate's peon. B. R. refused to execute these
recognizances and in support of his objection got two pleaders to present a petition for his
release without recognizances. As in npite of this petition the recognizances were insisted
upon, B. R. executed them, but got the same pleatlers to present another petition pKiying for
cancellation of the recognizances. In this petition improper motives were attributed to the
Deputy Magistrate, who purporting to act under s. 476, Cr. P. C, directe<l prosecution of thfl
two pleaders under s. 228, 1. P. C, and of B. R. for abetting the offence :

//<»W— That the High Court has jwwer to interfere on revision as the Deputy Magigtratc
had acted entirely without jurisdiction in the matter.

That the Departmental inquiry being purely an executive matter, there is nc provision of
law which empowere*! the Deputy Magistrate to compel the attendance of B. R. before him in
connection with tlie inquiry. That the case was not one to which Act III of 1869 appli*! and
that the issue of a warrant for B. R.'s arrest on his non-attendance in pursuance of tbc
summons was a voiil proceeding.

That in the matter of recording further evidence, it was not competent to the Depuff
Magistmte to compel the attendance of B. R. either before the Sub-Magistrate, or before him-
self. The i>endency of B. It's appeal would not give any Court power to arrest him as ^^^^re
was no question of enhancement, but only of the reversal or confirmation of sentence.

The jietition of theiplca<lcrs was not presenteil in a judicial proceeding, but in a <iei»rt-
ipental inquiry, so. sec. 476 Cr. P. C, did not warrant their prosecution under s. 228, I- ^.C,

Digitized by


Vol. Ill] The CnraiNAi. Law JoirRNAi. Rkports. 377


The fac^s necessary for this report are folly set out in the judg-

Dr. S. Sicaminailhan and V. Krinhnatwami Anjar for petitioners.

The Public Prosecutor for respondents.

Order.— In C'riminal Revision Cases Nos. M and 35 of 1005.— The
material facts bearing upon these revision cases are shortly as follow : Bala
Ramayya, the petitioner in Criminal Revision Case No. 35 of 1905, had
been convicted on a charge of theft and sentenced to pay a fine of Rs. 20
which he paid (see Criminal lievision Case No. 3G of 190.5). He pre-
ferred an appeal against that decision which was heard by the Deputy
Magistrate Mr. P. Nagesa Rao in July 1904. The Deputy Magistrate
directed the Sub-Magistrate who tried the case in the first instance to
record further evidence. While the matter was thus pending a complaint
of bribery in connection with the theft case made by Balo Ramayya
against the Sub-Magistrate to the District Magistrate was being enquired
into departmentally. Part of the departmental enquiry was Wng made
by Mr. Nagesa Rao. On the Cth October Mr. Nagesa Rao summoned
Bala Ramayya to appear before hi.n on the 19th idem in connection with
the departmental enquiry. Bala Ramayya did not appear, and Mr
Nagesa Rao thereupon issued a warrant for his arrest. The warrant was
not executed as Bala Ramayya was reported to be not flZ
On the 3rd December 190rBala Ram^yyl^eTne^Tho cCuZf 7£
Deputy Magistrate on some other business. Then Mr. Nagesa Rao directe<l
him to execute two recognizances and pending their exeenfinn I,.

e^hied by the Deputy Magist.te's peon. One o'f ^l^^^Z^ Z
for Bala Ramayya appearing before the Sub-Magistrate on the ^K
connection with the additional evidence ordered tl ,>e tke„ „! the oth:r
for h. appearan^ W re Mr. Nage«i lUo himself on the 1.3th idem
BalaRamayj.atfi.treusedto execute these recognizances protesting
that he should not be called upon to ,lo so and in sup,K>rt, of his objection
he got the petitioners m Criminal Revision Case No. 34 of 1905 one a
High Court Vakil and the other a First-grade Pleader, to presen't a peti-
tion in which It was prayed that Bala Ramayya might Ih. released without
any security or recognizance l,eing taken from him. As Mr. Nagesa Rao
had before this jK^tiHon was presented, left the Court-house, his work in
Omrt bemg over, and gone to his residence, the petition was handed to
Mr Nagesa Rao there. As in spite of the petition recognizances were
insisted on Bala Ramayya executed them and thereupon thel «amc ^

wrhth " '"'^''Tr'*'- '" M- ^'a^- RaoValso in his house) n
wh.ch they repeated their objec-tions and prayed that the security and
recognizances taken should U- cancel^! and Bala Ramnvva released, ut

Digitized by


378 The Criminal Law Journal Reports. [Vol, HE


request was not complied with. With reference to paragraph 6 of the
j)etition which runs as follows : —

" The petitioner believes that this Court namely M. R. Ry. P. Nagesa
Rao Pantulu Garu is actuated by malice pure and simple against this
petitioner in arresting him and detaining him unlawfully in custody from
about 11-30 a.m. till about 4-30 p.m. this day." Mr. Nagesa Rao
directed (purporting to act under section 476 of the Criminal Procedure
Code) Bala Ramayya's two vakils to be prosecuted before the Divisional
Magistrate for an offence under section 228 of the Indian Penal Code, viz.
" intentionally offering an insult to a public servant whilst such pnblio
servant was sitting in a stage of a judicial proceeding " and Bala Ramayya
for abetting them in committing this offence. The Public Prosecutor
took the preliminary objection that these re\nsion p'^titions did not lie with
reference to the Full Bench ruling in EranhoU Athan v. Ainff Emperor
(1). We overrule the objection inasmuch as in our opinion Mr. Nagesa
Rao was acting entirely without jurisdiction in the matter. Now as to
the departmental enquiry he was holding it was purely an executivo
matter. Our attention has not been drawn to any provision of law
empowering Mr. Nagesa Rao to compel the attendance of Bala Ramayya
before him in connection with the enquiry. Of course it was not a case
to which the Act regarding the issue of Revenue Summonses Madras Act
III of 1869 applied and it follows that the issue of a warrant for Bala
Ramayya's non-attendance in pursuance of the summons was a void pro-
ceeding. As regards also the matter of further evidence directed to be
taken before the Sub-Magistrate it was not competent to Mn Nagesa Rao
to compel the attendance of Bala Ramayya either before the Sub-Magis-
trate or before himself. As we observed in Criminal Revision Case No, 30
of 1905 it was for Bala Ramayya, if he chose, to appear at the enquiry or
not. It is to be remembered that he had been sentenced to pay a fine
and the fine had been paid. The pendency of an appeal preferred by him
would not give any Court authority or power to arrest him. The only
result of the appeal could be either the reversal or confirmation of the
sentence already passed. There was no question of enhancement of sen-
tence. Of course to warrant an order under section 476 of the Criminal
Procedure Code directing a person to be prosecuted the offence stated to
have been committed by him should \\:\\? Seen committed before the Court
in the course of a judicial proceeding or should have been brought under
its notice in the course of such a proceeding. Neither is the case here.
For the presentation of the petition in question was in regard to and in the
course of the detention of Bala Ramayya and the taking of recognizances
from him l)oth of which were, as shown above, absolutely illegal acts.

(O 1. L. R.. 26 Mad. 98.

Digitized by


Vol. Ill] The Criminal Law Journal Reports. 379


Tlie Full Bench ruling relied on by the Public Prosecutor cannot
possibly be held to apply to a case like the present. It is equally clear
that Mr. Nagesa Rao was not at the time the petition was handed to him
a public servant sittinff in any stage of a judicial j^roceeding and this the
Public Prosecutor conceded.

The order of Mr. Nagesa Rao directing the prosecution of the Pleaders
and Bala Ramayya is hereby set aside.

Wo cannot help observing that the conduct of Mr. P. Nagesa Rao
in detaining Bala Ramayya under the circumstances and compelling him
to find security and execute the recognizances has been throughout so high-
handed and perverse as almost to justify (if that were possible) the state-
ment in the paragraph of the petition complained of, though we cannot
permit any legal practitioner to impute improper motives or corruption to
a judicial officer in petitions addressed to him in connection with proceed-
ings pending before him as such officer.

In Referred Case No. 5 of 1905 and Civil Miscellaneous Petition
No. 339 of 1905.

As regards Referred Case No. 5 of 1905 and Civil Miscellaneous Peti-
tion No. 339 of 1905 it is needless to say that wo entirely agree with Mr.
Bell that a Pleader cannot be permitted to make imputations on judicial
officers in petitions presented to them. The proper procedure in cases
where such petitions are presented would be to return them to the Pleader
for amendment or to reject them as scandalous. For reasons however
given in our judgment in Criminal Revision Nos. 34 and 35 of 1905 these
are not cases calling for any further action.

{10 C. W. X, 441.)


Dec. 19 [CRIMINAL REVISION MIS. No. U5 of 1905.] 1905.

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

NARAIN CHANDRA BANNER JEE and others,— Petitioners,


Criminal Procedure Code (Act V of ISOS), 8. o26—Tramfer, gronnd^fo^r— Reasonable
apprehemion of an unfair trial -liepntation and authority of the Magixtrate concerned cannot
be taken into consid oration hy High Court,

In dealing with an application for transfer of a caso, under sec. 526, Cr. P, C, the High
Court has only to determine whether good grounds for its transfer hare been made out to the
Courts' satisfactioTi. It will not take into consideration the effect of an order of transfer on
the reputation and authority of the Magistrate concerned.

Digitized by


380 The Criminal Law Jourxat. Reports. [Vol. Ill


Where transfer of a case is sought ou the ground that the accused cannot have a fair and
impartial trial in a certain Court, the reasonableness of the accused's apprehension should be
decided by reference to the mind of the Court rather than to the mind of the accused. If the
High Court cannot r^ard the apprehension to be reasonable under the circumstances of the
case it will not treat it as reasonable merely in deference to the susceptibilities of the accnsttl

The facts nuiterial to the report appear from the judgment of Brett, J.

Mr. JFtll and Babu Dasaratld Sanyal for the Petitioners.

No one appeared to show eiiuse against the Rule.

The judgments of the Court were as follows : —

lirett^ J. — The present rule has l^en granted on an application made
to this Court under see. 52G, Cr. P. C. The Petitioners have been sent, up
for trial by the Police charged with offences under sees. 147 and 353,
I. P. C. Information was lodged against them to the Police by an officer
of the Howrah Municipality, and the case appears to be on the file of Mr.
Prentice, Joint-Magistrate of Howrah, for trial.

In support of the rule it was alleged that the information had been
lodged under the directions of Mr. Forest, Chairman of the Howrah Muni-
cipality, \\\\o is also District Magistrate of Howrah, and that in con-
sequence the Petitioners were under the apprehension that they would not
have a fair and impartial trial before a Magistrate at Howrah who was
subordinate to the District Magistrate. It was also suggested that as Mr.
Prentice, the Joint-Magistrate, is also a Municipal Commissioner of
Howrah, the case ought to be transferred from his Court to the Court of
some other Magistrate for trial. A rule was granted on the District
Magistrate of Howrah to show cause why the case should not be trans-
ferred for hearing to a Magistrate of competent jurisdiction in the district
of Alipore for the above reasons.

The Magistrate of the district has submitted a written explanation in
answer to the rule. Dealing with the merits he has stated that his know-
lodge of the facts of the case is confined to the statement made to him by

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 69 of 91)