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tion 439, Criminal Procedure Code, be referred to the Hon'ble the Chief
Justice to be dealt with under the provisions of section 429, Criminal Pro-
cedure Code.

Stephen, J. — I need not recapitulate the facts of this case wlueh ai*
fully set out in the judgment of my learned brother. It is enough to state
that Abdul Majid, the petitioner, was tried with four other persons under
sec. 411 of the I. P. Code, each of the five being charged separately with
retaining stolon property and each being charged in respect of a different
object. On the evidence there seems no reason to doubt that the articles
retained by all the prisoners were stolen on the same occasion. The q'^es-
tion is whether on these charges, the joint trial of the five accused was
contrary fo law, and if it was, whether the fact makes the conviction of
the jietitioner illegal, li seems to me impossible not to answer both those
questions in the affirmative. Omitting cases of attempts and abetments,
of which there is no question here, the effect of sec. 239 of the Cr. P. Code
is that two or more persons can be tried together only when they are
accused of the same offence, or of different offences in tfie same transac-
tion. Here they are specifically charged with different offences, namely,
retaining different things. The only reason for saying that they are
charged with the same offence appears to be that the retention of the
article in each case, might, on proof that it was stolen, and in the absence
of any explanation of how it came into the possession of the accused, afford
ground for convicting the accused of theft, and if this were so, each of the
accused would be convicted of the same theft. I know of no authority,
however, for saying that a conviction for theft can take place on a charge
of receiving or retaining. Sec. 237 allows an accused who has lieen
charged with one offence to be convicted of another ; but by reference to
sec. 230. the operation of that section is confined to cases where it is
doubtful which of several offences will be constituted by the facts which
can be proved, which is not at all the case here. I hold, therefore, that
the persons charge<l wen^ not accused of the same offence. The question
then arises were they accused of different offences committed in the same

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Vol., Ill] The Criminal Law Journal ItEPouts. 39d


transaction. It in to be noticed that the four of them, whose cliarges
alone are before U}<, were charged with retaining only, and not, as tliey
might have Ixren, with retaining and receiving. It may be, however, that
in this case this makes no difference, because an illegal receiving may be
presumed from an illegal retention. Taking this to be so, and that we are
to consider retaining to be the same thing as receiving, it appears from the
case of A. David (2) that where one prisoner stole and another received,
they committed diflFerent offences in the same transaction ; but this, subject
to the qualification mentioned in Bistiun Banvar v. The Empress (3), that
the offence of receiving must have been committed simultaneously with,
which must mean very soon after, that of st<?aling. In the present case
there is no evidence as to the circumstances under which the receiving
took place; it may have taken place sevend days after the theft ; the
property may even have passed through several hands before it came into
the possession of the accused. It is, therefore, imi)ossiblo to hold tliat the
offence of receiving by the i>etitioner and the offence of stealing by the
unknown thief were offences committed in the same transaction within the
meaning of sec. 239. Still les% as it seems to me, can it be held that the
offences of the different accused were so connected. Conseijuently it
follows that the joint trial of the accused was not according to law.

The further question then arises whether the conviction and sentence
are saved by tlie o|>eration of section 537 of tlie Criminal Procedure Code ;
and it appears to me that the decision in Snhrahmania Af/tjar v. The Kiiuj
Emperor (1) is authority for saying that they are not. An illegal joinder
of charges against one accused is an illegality not curable under section
537. An illegal joinder of charges against several accused seems to me a
fortiori an illegality of the same kind. The prejudice and inconveniences
which may result from misjoinder of accused persons are of the same kind
as those to be apprehended on an illegal joinder of charges against one
accused ; only they are more serious in degree. There is here no question
of whether the accu.Wd have actually been prejudiced by being tried
together. The question is whether the rule tliat has been broken is such
that its breach in other cases is likely to prejudice accused and to produce
evils such as those referred to in the judgment of the Privy C-ouncil. In
my opinion it is, and I am consequently of opinion that the Rule should
be made absolute, the conviction and sentence set aside and the petitioner

Rule made ahsoliite^ conviction set aside*

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*0«> Dhb (Jbimikal tAw Journal Uepobts. [^oi. it£


C26 A. W. ^\ 103.)


April 9 [CIVIL REVISION No. 34 of 10(^5.] 1906.

Present : — Mr. Stanley, Chief Justice, Mr. Justice Knox and
Mr. Justice Burkitt.

S ALIU RAM, — (Plaintiff)— Applicant,


RAMJI LAL AND oTHKBs, — (Defendants)— Opposite Party.

Criminal Prveednre Cudf, tf. 196 and 439—Ciril Procedure Ode, t. eS3—Hetuwii—
Saiu-tivH tttpre$ecufe — Jitri»dietio».

\VheregancUoutopraiie«itei»gHuit«luiKlertheproTl8ioMof section 195 of the Co*
of Criminal l>rocedare by a Civil Court, the High Court bM no jnriacMction in the exadx
ot its revwional powers on the Criminal side to intertere with such an onlcr.

Tlie facts of this case sufficiently appear from the jutlgment of
Knox, J.

J/otcard, for tJie applicant.

The opposite parties were not represented.

Stanlei/, C. J.— The point raised in this matter api)ears to me to be
concluded by a decision of a Full Bench of this Court in In the matter of
the petition of the Bhup Kunwar (I. L. R., 2C All., 249). In that case it
was held by a majority of the Bench that where a Munsif acting under
section 476 of the Code of Criminal Procedure, directed the prosecution
of a party to a civil suit pending before him, the High Court had no
jurisdiction in the exercise of revisional powers on the criminal side to inter-
fere wHIi such order. In the present case the Munsif acted under section
195 of the Code and not under section 470 ; but it appears to me that if
the High Court has no jurisdiction in the exercise of revisional powers on
the criminal side to interfere with an order passed under section 476, a
forhonUs no power to do so in the case of an order passed under section
1 J3. I have given the question my best consideration and I see no reason
for receding from tlie views which I have expressed in the FuH BencJi

Kno,r, J.— Salig Ram instituted a suit against Ramji Lai and two
ethers upon a bond in the Court of the Munsif of Ghaeiabad. Subse*
quently he applied for sanction to witlidraw the suit, and the suit was in
consequence dismissed. After the suit luid been dismissed, Ramji U\ and
h.s cc^defendants applied to the Munsif for sanction to prosecute Salig
Ram and Salig Rani's witnesses, on the ground that the bond ui»on which
the suit had Wn instituted was a forged bond within the knowledge of
Salig Ram and of his witnesses. Sanction was granted to the applicants

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to prosecute Salig Ram for offences pnnishable under sections 209, 464
and 471 of the Indian Penal Code, and for the prosecution of the witnes-
ses Tansukh and Banke for abetment of forgery. The Munsif of Ghazia-
bad sitting as Munsif gave the sanction prayed for and the orders passed
by him are to be found in Miscellaneous Civil Case No. 392 of 1904. This
I learn from a copy of the order which has been filed in the present case.
The District Judge of Meerut was asked to revoke the sanction thus given.
Sitting as District Judge in Miscellaneous No. 14 of 1905, he passed an
order refusing to interfere. That order has also been filed in the present
case. It Js an order such as is usually passed by a Civil Court. It con-
tains a memorandum of the costs incurred by both the parties, a memo-
randum always to be found attached to orders passed by a Civil Court,
but as invariably absent from orders passed by a Criminal Court. Salig
Ham having failed in the Court of the District Judge, applied under sec-
tion 622 of the Code of Civil Procedure for revision of the order of the
District Judge of Meerut. Eventually this application, which forms part
of the record of Civil Revision No. 34 of 1905 of this Court, came before
two learned Judges of this Court. They inclined to the view that section
439 of the Code of Civil Procedure applies to a case like this, and that
the case was not one which should be dealt with on the Civil Revisional
side of the Court. . They held that upon this point there was " a conflict
of opinion in this Court. It was held in Moti Ram v. Niadar Mai (Week-
ly Notes, 1903, p. 170) that the High Court had jurisdiction to interfere
in revision in a matter like this under section 439 of the Code of Criminal
Procedure. A contrary view was held in Muhammad Yakitb v. Muham-
nuul Tyab (Weekly Notes, 1903, p. 172)." Deeming it desirable that
the question should be determined by a Full Bench they have referred it.

What then has to be considered is whether this Court has power
under section 439 of the (>ode of Criminal Procedure to pass orders in
revision upon sanction to prosecute a party or witness offender for any one
of the offences specified in section 195 of the same Code given by an
inferior Civil Court and revoked or confirmed by a superior Court of C^vil
Judicature, both Courts being subordinate to this Court, or whether this
Court has under similar circumstances power to revise such order under
section G22 of the Code of Civil Procedure.

The power to call for proceedings of inferior Court?* and to interfere
with orders passed by them which, for the sake of ))rovity, I propose to
call its revisional power is not a power inherent in a dominant Court, at
any rate so far as India is concernod. It is a power expressly conferred
by Statute. It does not extend to all proceedings and to all orders of
inferior Courts. Numerous instances might lx» quoted, I refer, for

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402 The Criminal Law Journal Reports. [Vol. Ill


oxamplo, to section 435 of the Code of Criminal Procedure and to section
022 of the Code of ( *ivil Procedure.

Til tlie case of this Court while a power of superintendence is con-
fiMTCMl over nil Courts suhject to our appellate jurisdiction hy section 15
oF Snitiitc* 24 and 25 A'^ic, Cap. civ., the revisional power in the case of
each branch of juriscHction is the creation of separate and distinct Ic^sla-
tion. In the case of its criminal jurisdiction section 21 of the Letters
Patent continues the powers as formerly possessed by the Court of Sadder
Nizamat Adalat and as governed and limited by the provisions of the
present Code of CVimhial Procedure. Similarly in the case of its civil
jurisdiction their revisional power is a continuation of the powers possessed
by the Suihler Dewani Adalat (ride Stat. 24 and 25 Vic, (\np. civ., sec-
tion 11; Act XXIII of 18G1, section 35 ; Act No. V of 1 8t)8, section
{)22), In the case of Courts of Revenue no power was originally given
to this Court, see Act Xo. X of 1851>, sections 151, 152, and Markby, J.,
in nadlut Parsluul Sinoh v. Sunmr Roy (14 AV. !{., C. H., 27).

Two inferences arise from these distinct statutory provisions — (1) tliat
the Legislature drew a clear and sharp line of demarcation ))etween Civil
and (^riminal jurisdictions, and (2) that the power to call for proceedings
of a subordinate Court was intended to be and is an extraordinary 2)ower
which cannot be exercise<l except upon authority shown in some law.
Mere inferiority, as I said before, of a Court did not render its proceedings
opeMi to revision, still less was it intended that {)roceedings of Courts sub-
ordinate to the Civil or Hevenue jurisdictions should be subject to the
Criminal jurisdiction of this Court and rice versti.

Xo question can, it appears to me, arise, but that the Courts of tlie
!Munsif of Ghaziabad and of the District Judge of Meerut are (^ourts over
which this (^ourt can exercise the revisional jurisdiction conferred by
section t)22 of the (\)de of (Mvil Procedure. The case before us is a case
in which no appeal lies and in which the contention raised is that the
Munsif who decided the case appeared to have exercised a jurisdiction
not vestetl in him by law. So far as I can see, there is no difficulty what-
ever in applying the provisions of section (522 to the present case and in
passing such order in the case as this (?ourt may think fit.

The opposite view, riz,^ that this Court has power under section 430
of the Code of Criminal Procedure to call for proceedings of subordinate
civil Courts and to pass orders upon them, appears to me to raise insur-
mountable <lifHeulties. In the first instance it would be a power of an
exceptional nature. The criminal jurisdiction of this Court is granted
and directed sections 15 to 22 of the Letters Patent. Under section 21
it is a (.'ourt of reference and revision from the criminal courts subject

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Vol. Tri] The Criminal Law Journal Reports. 403.


to its nppollato jurisdiction, .ind it has further power to revise all such
cases tried hy any Officer or Court possessing criminal jurisdiction which
in ISM were subject to reference to or revision by the (Wii; of Sudder
Xizamat Adalat. The Courts of the Munsif of Ghaziabad and the District
Judge of Meerut fall under neither of these classes. To bring them
within the jurisdiction it would have to be shown that these (Wrts were,
when passing the orders now before us, either criminal Courts, or that
there exists some statutory provision conferring ui)on this Court jurisdic-
tion under the (\)de of Criminal Procedure to call for in these cases the
proceedings of civil (*ourts.

The Courts below, as 1 have already observed, when they respectively
gave and upheld the sanction which we are now asked in revision to
revoke purported to act throughout as civil Courts, and I do not sec how
it can be contended that the action they took with respect to the sanction
was an act done by them as criminal Courts for the time being. Section
105 of the Code of Criminal Procedure, omitting clause G, to which I
shall afterwards refer, nowhere confers criminal powers upon any Court
or person or converts them into criminal Courts for this purpose. The
section is not an empowering section pi'operly so called. It enacts that
before a Court can, in respect of certain offences, exercise the criminal
powers inherent in it, as such criminal Court, it must ask the person who
wishes it to exercise such powers, whether he can show that he has been
authorized by persons or (*ourts specified in the section to put them in
motion. Ordinarily any person against whom an offence has been com-
mitted has the right to put a criminal Court in motion. There are, how-
ever, certain offences which are known to the law as offences against the
8tate, offences ))y or relating to public servants, contempts of the lawful
authority of public servants, offences against public justice, &c., which,
while they affect injuriously individuals, affect still more injuriously the
State and Courts of Justice. The Legislature has seen fit to enact that though
the private individuals may have suffered wrong from an offence of this kind,
he shall not put a criminal C'ourt in motion without first obtaining the sanction
of certain State officers or of the (-ourts of Justice who have also been injuri-
ously affected by the particular offence. AVhen theUovernor-CTeneral in
i 'ouncil, the presiding Judge of a civil Court or a public servant such as the
Inspector-General of Police, or Members of the Board of Kevenue grant
siuiction for the prosecution of offences specified in section 105 of the (*ode
of (Viminal Procedure, they give that simction not under any power con-
ferred by section 1 05 or by any criminal power inherent or conferred
upon them ; they give it as Governor-General in ('ouncil, presiding Judge
of the civil Court, Inspector-General of Police or Member of the Board

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404' The Criminal Law Journal Reports. [Vol. Ill


of Revenue. The proceeding, if it can be so called, in or by which they
give the sanction is a proceeding of the Governor-General, Judge of the
Civil (^urt, Inspector-General of Police and Member of the Board of
Revenue, respectively, and not that of a criminal Court.

The sanction given under section 11)5 appears to be equivalent more
or less to the power given under Statute 14 and 15 Vic, Cap. C, section
19, to superior courts of common law and equity, &c., Ac, to direct per-
sons to be prosecuted for perjury committed before them, in case there
should appear a reasonable cause for such prosecution, but I can find
nothing which leads to the inference that a court of equity directing such
prosecution directed it in any other capacity than as such court of equity.

The power is moreover a survival of a power conferred upon Courts
of Civil Jurisdiction as far back as the year A.D. 1793 by Regulation IV
upon the Courts of Dewany Adalat. The words in that Regulation con-
ferring the jurisdiction show very clearly that it was a jurisdiction con-
ferred ui)on the Courts of Dewany Adalat and that they were not created
tor the time being into criminal (^ourts of any kind (see especially Regula-
tion III of 1793, section 18 and Regulation IV of 1793, sections 14, 21,
and 22 to 25).

The sections of the Code of Criminal Procedure which empower this
Court to call for records and to exercise powers of revision are sections
435 to 442 of the C^oJe of (criminal Procedure. The words used in sec-
tion 439 as they stand by themselves arJ& very wide, and the argument,
as I understand it, is that they empower this Court to send for any pro-
ceeding as long as that proceeding is a proceeding under the Code of
Criminal Procedure, and that a civil Court granting sanction under sec-
tion 195 when it records such sanction is recording a proceeding under
the (.'ode of Criminal Procedure. Does not this argument go too far ?
('an it be stopped at proceedings taken by (-ourts, and should it not extend
to proceedings of other authorities when they sit down to record a sanc-
tion asked from them in accordance with section 195. Tt has not been
contended, nor do I think it would ever be contended, that these sections
empower this Court as a ('ourt of Criminal Revision to call for proceed-
ings of the Governor-General in Council, the Inspector-General of Police
or the Members of the Board of Revenue with the object of exercising
any of the powers conferred upon this Court by these sections. If this
be the case, parity of reasoning compels the inference that this Court
cannot under section 439 call for with a similar object the proceedings of
any Judge of a civil Court.

In the present case the only proceeding in existence, if it may be teimed
pioce ding, is the proceeding granting sanction. Xo action has been

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taken on it. The proceeding has not yet been taken by the person to whom
it was given and has not been shown to any Court as an authority for that
Court taking action. Neither in original nor in any other form has it found
a place upon the record of any criminal Court. For these reasons I find
myself in accord with what the leanied Chief Justice has laid down in In the
matter of the petition of Bhup Kunwar {I.L. R.,26 AIL, 249), see especially
page 2.54 et seqq. I have no doubt that this section " has no application what-
ever to an order passed by a civil Court, such as the order which was

passed by the Munsif in this case. The general words with which the section
opens, namely, ' in the case of any proceeding,' must, I think, be understood
as used in reference to the subject-matter in the mind of the Legislature,
which was undoubtedly the records and orders of inferior criminal Courts
referred to in the earlier section, sec. 435, and must be strictly limited to it.
They cannot have general application." Upon this i>oint there is to my
mind no difference whatever between the proceedings which a civil (jourt
takes up to the point when it sends a case under section 470 of the Code
of Criminal Procedure for enquiry or trial to the nearest Magistrate, and
the proceeding, if proceeding it may be called, in which it gives sanction
to a private individual to set the criminal Court in motion.

With one exception, perhaps, I know of no statutory provision which
confers upon any civil Court as a civil t^ourt criminal powers of any kind.
Enactments which create or appear to create new jurisdiction have to bo
construed strictly ; see Flower v. TJoifd (L. /<*., G CL i>., 301), and iJiss
Urban Sanitary Authonty v. Ahlrich (L. R,, 2 Q.B.T)., 179). In the one
and only case in which I know of criminal jurisdiction being conferred
upon CW\\ or Revenue Courts, viz,, sections 478 and 479 of the Code of
Criminal Procedure, the powers and the procedure are laid down in very
precise and well defined terms. No similar power is conferred by section
195, except perhaps it may be argued that such power is to be found in
cl. (()) of that section. It is well to compare and contrast carefully
the language used in section 195 (0) and section 478 (2). Surely, if the
Legislature had intended in the former section to convert Civil C'Ourts
recording proceedings under section 195 into criminal Courts for the time,
it would have used language as express as it has done in section 478 (2).
There is no such provision, and therefore after full consideration it seems
to me unnecessary to hold that cl. (G) confers such extraordinary powers
as would be the case if criminal jurisdiction were conferred upon a civil
Court or (for we cannot stop here) upon the Governor-General in Council
or other Public Servant referred to in section 195 (1) (a). Why should
we construe this clause into anything further than a revisional power
granted to a civil Court as such Court or to the Governor-General in
Council as such Governor-General in Council. Such a construction does

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i<^(i The Criminal Law Journal Heport?^. [Vol. Ill


110 violence to but rather continues along the ordinary lines, the ordinary
{wwers of such Courts or of the (Tovernor-General in Council, Arc. I
know that the view I am here expressing is in conflict with the view
taken upon the question by my brother Banerji in very careful and
(»lalx)rate judgment in In re Bhup Kinncar. That judgment is concerned
only with sections VW and 47(> of the (/ode of Criminal Procedure. But
my learned brother does undoubtedly there hold that section 430 authorizes
this Court to send for proceedings taken by a Court of Civil Judicature
under section \li) mainly on the ground that they are proceedings taken
by that (*ourt, under the Code of Criminal Procedure. It is no i)art of
my judgment to deal with such proceedings, and I would only i>oint out
that I do not find any mention in the argument or in the judgment in that
case of section (143 of the Code of (^ivil Procedure. He points out that
*• as regards the vuvsus curiae on the subject, all the High Courts, except
the High Court of Bombay, had held, until recently, that the High Court
has jurisdiction to revise an order made in proceedings taken under section
47r>.'' As regards Madras this must now be qualified ; see hi re Chennana
(roud (f. L. /i\, 26 Mad., 139). My learned brother further points out
that the same view was held by myself in Criminal Revision No. (504 of
1 003. This, however, must be due to misapprehension on my learned
brother's part, for I find that Criminal Itevision No. ()04 of 1003 was u
case asking this Court to revise proceedings of a Magistrate who took

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 72 of 91)