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the powers conferred npon them by sec. 1(1 of the Code of Criminal Pro-
cedure. That section gives the Local Government power to make rules
consistent with the Code, for the guidance of Magistrates' Benches res-
pecting (j) the classes of cases to be tried, {!>) the time and places of
sitting, (j") the constitution of the Bench for conducting trials, and (<l)
"the mode of settling differences of opinion which may arise between the
Magistrates in Session." What is the meaning of the words, which I
have just read '• tho mode of settling differences of opinion ? "' Do these
wonls simply indicate the machinery by which a (b'ff'erence of opinion
when arising may be settled or do they comprehend the idea of conferring
upon any individual member of the Bench any extraordinary j)ower for



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416 TfiE Cbimikal Law Jocbkal Reports^- [Vol. Ill

KAILASH CHANDRA INDC r. KAU PROftXJNXO ROY.

the purpose of settling such difference ? It will be observed that the rules
which the Local Government h aothorieed to make are simply For the
guidance of the Benches, and the clauses that precede the cl- (rf) indicate
that they refer to purely administrative matters; and the question is
whether it was the intention of the legislature while laying down the said
clause, to depart, as it were, from the general scope of the section, so as to
authorize the Government to do an act which is far from being adminis-
trative in character. I think not. Sees. 429 and 378 of the Code thongh
they are applicable to the High Court only, suggest what ought to be done
in cases of difference of opinion arising between two members composing
a tribunal ; and if the Local Government had made a rule in the same
lines, and something to this effect : " In case of difference of opinion be-
tween two members composing a Bench, the case should be referred bv
the Bench to a third Magistrate," it would bo rule quite consistent with
the Code, and the scope of see. 16, for the word " mode," as used in cl
(d) of the section, to my mind, simply indicates the machinery by which
a differonoo, when it arises, may be settled. But I do not think it was
ever contemplated that, for the purpo^^e of settling such difference in a
given cjise, tlie Local Government might adopt the "mode" (if the word
is at all applicable) of conferring extraordinary powers, or rather double
power, upon an individual member of the Bench. Under sees. 12 and U
of the Code, tho Local (xovernment may, no doubt, confer upon any per-
son appointed as Magistrate any powers which a Magistrate, under the
Code, is competent to exercise ; and it may also confer such powers in
respect to cases generally or any particular case, or to a particular class of
cases : but this is very different from providing that, in the event of the
Magistrate so empowered being member of a Bench, he should, in case of
difference of opinion, exercise, not the ordinary powers, but extraordinary
powers. Sec. 15 of the Code lays down : '* The Local Government may
direct any two or more Magistrates in any place outside the Presidency
towns to sit together as a Bench and may, by order, invest such Bench
with any of the powers conferred or confernible by or under this Code on
a Magistrate of the first, second or third class, and direct it to exercise
such powers in such caso?, or such classes of cases only, and within such
local limits as the Local Governmf^nt thinks fit." The Local Government,
under this last-mentioneii section, may confer upon the Bench any powers,
conferrablo under this Code, that it may please, but not any extraordinary
power upon any individual member of the Bench, for the purpose ot dis-
posing of any particular case in case of difference of opinion arising "^"
twoen them ; — and that is just what the Local Government has done »!
framing li ale 6. For these reasons, I should, with all deference, ho^^^^^
to the opinion that lia^ been expressed by the learned Chief Justice. *^^



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Vol. rU] The Criminal Law Journal Reports. • 417

KAILAHH CHANDRA INDU r. KALI PROSUNKO ROY.

that the rule in question is not consistent with the Code or the spirit
thereof and that it is ultra vires.

Rampini, J. — I agree with the judgment delivered by my Lord the
C*hief Justice, and would answer in the affirmative the question which has
been propounded for our consideration by the referring Judges.

It seems to me that Rule 6 of the Rules framed by the Local Govern-
ment for the guidance of Magistrates' Benches is aulhorised by the Code
and is consistent with it. In my opinion the present rule is quite ^vithin
the jK)\vers conferred upon the I^ocal Government by sec. IG, bl. (rf), of
the Code, and is covered by the authority given by that clause.

Further, it does not appear to mo that the rule is inconsistent with
the Code. I am free to admit that it is one which I do not approve of,
and that I would be glad to see reconsidered by the Local Government.
But as far as I can see, it is a perfectly legal rule and one which the Local
Government had full authority to frame. I do not think we are called
upon to decide whether the rule is an arbitrary one or one opposed to
natural justice ; but I may observe that the rule is very similar to that
laid down in cl. 3G of the Letters Patent of 18G5 and to Rule 55 of the
rules of the Original Side of this Court, which is still in force. I should
be sorry to think that this rule is arbitrary or inconsistent with natural
justice.

I accordingly agree in remitting the case to the referring Judges for
disposal upon the merits.

SaUj J. — I also agree with the Chief Justice that the rule complained
of is not illegal and I desire to add only a very few words. It has b(»eu
argued that the rule contravenes the spirit and intention of the Criminal
Procedure Code, if it is not opposed to its express language. I may say
at once that if I thought the rule was contrary to natural justice — and
that is what has been alleged — I should feel no difficulty in holding that
it was opposed to the purjiose and spirit of the Code and was therefore
illegal, for the object of the Code is, I suppose, to secure justice and no
rule which is contrary to natural justice could be consistent with that
object. But there is nothing necessarily contrary to natural justice in a
rule which pro\4des that, in the case of a Bench of two Magistrates, the
opinion of the Chairman is to prevail. The Chairman of a Bench, it may
be reasonably assumed, is the person who is thought to be, by qualifica-
tions and experience, best fitted for that i)osition. It is right, therefore,
that his opinion should carry more weight than the opinion of a Magistrate
who has less experience and has inferior qualifications. A rule of this
kind differs, in my opinion, in degree only and not in principle from the
rule which provides that the opinion of two Magistrates is to be preferred



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41^ Thk CamiNAL Law Jolknal 1{ei»okts, [Vol. HI

KAILASH CHANDRA INDU r. KALI PttOSUXXO KOY.

to the opinion of one. But though the rule cannot be said to \ye illegal,
I agree that it ir* uni«uited to the administration o£ criminal justice and the
reason is that it is often difficult to select the right person as ( -hainnan.
A rule which is theoretically sound may be undesirable and may lead to
abuses in its practical working. That, I think, is the case here. Where
the administration of criminal justice is dealt with by a Bench of Magis-
trates, it is a better and safer rule that the opinion of a majority should
determine tlic decision of the C'ourt. I agree, therefore, with the recom-
mendation that the rule complained of should either be altered or ex-
punged.

Pratt^ J. — I agree witli Mr. Justice (those and adhere to the opinion
expressed by me in my judgment in the case of Henry Wakefield v. Haran
tSiinhir (1).

The Code of Criminal Procedure expressly provides for the case of a
difference of opinion between two Judges constituting a Bench of the
High IJourt, by directing a reference to a third Judge ; and it does not
allow of either Judge having a casting vote. I think the rule under dis-
cussion is inconsistent with the principle underlying that enactment, and,
therefore, is not such as is contemplated by sec. 1(».

Moreover, tlie rule gives a single Magistrate the i)ower and authority
of two Magistrates, which is not authorised by the Code.

A\ hen upon a difference of opinion between the two presiding Magis-
trates of a Bench the accused is condemned to imprisonment without a
right of appeal, merely upon the casting \oie of one Magistrate it seems
to me that the question of the prisoner's guilt is made to depend Xkyow
chance, and that the legislature could not have intended such an arbitrary
and unjust rule to have the force of law.

This view seems to have commended itself to the Governments of
Bombay and of the United Provinces. In tlie former Presidency the rule-*
provided for a reference to a third Magistrate, and, in the latter, the rule
is that the ac<«used should W^ given the l>enefit of the doubt.



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Vol. Ill] TuE Okiminal Law Juuiinal Uiipoitl's* 419

ISMAL ROWTHEU V. SHUNMUGAVLU XADAN.

a. L. IL, 29 Mad., 140.)
IN THE HIGH COURT OF JUDICATUUE AT MADRAS.

Sep. 25 [CRIMINAL REVISION No. 231 of 1905.] 1905.

Present : — Sir S. Subrahmania Ayyar, Offg. Clnof Jur^tice,

and Mr. Justice Boddain.

ISMAL RUWTHER axd otherh— (Accused)— rETmu.VERS,

Versufi
SHUNMUGA VLU NADAN— (Complainant)— Rehvokdeni*

fnmUal Procedure iWe (AH V of ISOS)^ «*. 105. 637—SaHiiioft, tC.uU </, onhj aH
irfeijularity and wt fatal to the prosecutioM,

The general provisions of HX'tion 195 of the Co«le of Criminal ProcaUirc ought not to be so
construetl as to nullify the spceial provisions of section 687 (bj.

The want of sanction reiuireil by section 105 of the Code of CHnihial Procctlurc is not
fatal to a prosecution unless the accuseil is prejudiced thei-eby.

The cliarge against the petitioners (accused) was that they l>y force
obstructed a marriage procession which was being carried on with the sanc-
tion and under the superintendence o£ the j)olice, and compelled the bride
and bridegroom to alight from their jmlanquin and walk to their house.
. They were convicted of offences under sections llli, l^G and 311 of the
Indian Penal Code.

On appeal to the Sub-Divisional Magistrate, the contention of the
petitioners that the conviction under section 1^6 wds bad as no Siinction had
been obtained under section 195 of the Code of Criminal Procedure was
overruled and the conviction confirmed.

Petitioners preferred the criminal revision petition.

Mr. K. Xorton and JP. Daraisatcmi/ Af/f/ancfar for petitioners.

The Public Prosecutor and Mr. Joseph Satf/a Xcular for complainant.

Order. — One of the offences for which the |)etitioners have been con-*
victed is punishable under section 188, Indian Penal Code.

No sanction from the Police Officers obstructed was produced in the
course of the prosecution but no objection on this ground was taken on
behalf of the petitioners at the trial. Mr. Norton has called our attention
to Raj Cluxnder Mozumdar v. tjour Chunder Mozumdar (1) in support of
bis contention that the want of sanction was fatal to the prosecution of the
prisoners on the charge in respect of the offence referred to. We arc
unable to agree wnth the view there taken by the learned Judges as to the
construction of section 537, Criminal Procedure Code of 1882, which so
far as the question of want of sanction is concerned is identical with sec-
tion 537 of the present Code (Act V of 1898). Their construction virtu-
al) I. L. lU 22Calc., 170.



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420 The Ciuminal Law Jouukal KEroRi's. [Vol. Ill

VPEKDRA KUMAR GHOSE r. EMPEROR.

ally nullifies the provision that want of sanction is merely an irregularity
which would not justify the reversal of the decision in a case prosecuted
without sanction unless such want of sanction has occasioned a failure of
justice. No doubt section 537 begins with the words " subject to the pro-
visions hereinbefore contained," etc., but those words must be taken
together with what follows and not read so as to give no meaning to the
subsequent clause relating to the want of sanction.

Section 195 provides yenemlbf for cases in which s^mction is necessary,
while section 537 (//) provides for cases of want of or irregularity in the
matter of sanction in particular cases. The latter as providing for a special
case must have effect given to it as qualifying the general provisions in
the earlier section. In this view there is nothing to show that the want
of sanction caused any prejudice to the accused or occasioned any failure
of justice. And no other ground has been shown for interfering with the
decision of the lower Courts.

We dismiss the petition.



(3 C. L. J., 476.)

IN THE HiaH COURT OF JUDICATURE AT CALCUTTA.

Jany. 25 [CRIMINAL REVISION No. 111)8 of 1905.] 190G

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

UPENDRA KUMAR GHOSE and others r. EMPEROR.

Jfetifful Police Act (V of 1861 )~Sitciefi/ for the pt'crrutJon of cruelty to ammaU^ officert
of—PHhllc ser cants— Indian Penal tod^ (Act XLV of 1860), section 21.

Officers of the Society for the prevention of cruelty to animaK appoint«l uu«ler Act V of
1801, are public servants within the meaning of the Indian Penal Code. The mere fact that
the certificates of appointment priven to such otficersarc not strictly in conformity with the
form prescribed in the 8chetlule to Act V of 1861, docs not invalidate their appointment or
take them out of the category of public servants.

Application hy the accused i»ersons for setting aside an order direct-
ing their prosecution under section IGl o£ tlie Indian Penal Code.

The petitioners were officers of the Society for the Prevention of
Cruelty to Animals. Tlie Oistrict Magistrate of Howrah directed them to
be prosecuted under fiction 101 of the Indian Penal Code, for having
taken illegal gratification in the course of their duties, and made over the
case to the Joint Magistrate of Howrah for trial. The petitioners, there-
upon, moved the High Court and a Rule was issued to the District Magis-
trate of Howrah, to show cause why the prosecution instituted against the
petitioners should not he quashed on the ground that they are nqt public
servants within the definition of section 21, Indian Penal Code, or in the



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VoK III] The Criminal Law Journal Reports. 421

UPENDRA KUMAR GHOSE r. EMPEROR.

alternative to show can.se why the case shonld not Im> transEernnl for trial
to some other competent Magistrate in some other district.

Mr. Hill, Mr. IL X. Sen and Babu Dtearka Xath Mitter for the
Petitioners.

Ihe Depuiij Legal liememhrancer (Mr. Ihiujlas WItlte) for the Crown.

The following judgments were delivered by the Court : —

Brett^ J. — The four petitioners are officers of the Howrah Society for
the Prevention of Cruelty to Animals and their prosecution under sec. 1(51,
Indian Penal Code, for offences under that section was ordered by the
District Magistrate of Howrah, on the 20th November 1905. The case was
on the same date made over to the Joint Magistrate of Howrah, for trial.
On the 7th December the petitioners made an application to this Court and
a Rule was issued upon the District Magistrate of Howrah, to show cause
why the prosecution instituted against the petitioners under sec. 1()1,
Indian Penal Code, should not be quashed on the ground that they arc
not public servants w ithin the definition of sec. 21, Indian Penal Code, or
in the alternative to show cause why the case yhould not be transferred for
trial to some competent Magistrate in some other district.

The ])rosecution in this case was no doubt ordered by the District
Magistrate of Howrah, but after reading his explanation we see no reason
for holding that the petitioners are not likely to have a fair and impartial
trial before the Joint Magistrate, who has been in no way concerned in the
institution of the prosecution. The point has not been seriously pressed
l>efore us and we see, therefore, no reason to order the transfer of the case
for trial to any other Magistrate.

The main question which has been argued is whether the petitioners
are public servants within the definition of sec. 21, Indian Penal CJode ;
and after hearing the learned counsel on l)oth sides we hold that the
petitioners are public servants within that definition. Four certificates
have been laid before us, of which one addressed to the petitioner G. T.
Rose is dated the 2(5th July 1902, and is signed by the Inspector-General
of Police, Bengal Lower Provinces, and the other three are addressed to
the petitioners Upendra Kumar Ghose, Ishan Chundra Bose and Haradhan
Banerjee, respectively and dated the 22nd January 1903, the 31st August
1894, and the lltli September 189(», respectively, and are signed by the
Assistant to the Inspector-General, for the Inspector-General. These are
four certificates o£ appointment as poliee-offi 301- under Act V oE 18«;i,
and they purport to be in the form attache^:! to ths Act. It is true, as is
p^int-d out by the (^oun^el for the petitioners, that in each it is stated that
the person to'whoni it is addressed is appointed a member of the Police-



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422 The CnmiNAL Law JornxAL Keports, [Vol. Ill

rPEXDRA KIMAR GHOSE r. EMPEROR,

force under clause 2 of sec. 34 of Act V of 1861 and is vested with the
powers, functions and privileges of a police-officer for the detection and
prosecution of cases of cruelty to animals under sec. 34 of Act V of 1861.
It is also true that clause 2 of sec. 34 empowers a police-officer to take
into custody, without a warrant, any person who in his view wantonly or
cruelly beats, abuses or tortures any animal, and contains no provision for
the appointment of police-officers. The only section Avhich deals with the
appointment of police-officers is section 7 of the Act, and section 8 provides

. that every police officer on appointment shall receive a certificate in the
form attached to the Act, under the seal of the Inspector-General of
Police. Each of the petitioners has received a certificate of appointment
in the form attached to the Act, duly sealed, with these modifications that
the words " clause 2 section 34 of " have been inserted before the words
"Act V of 1861" and the words " for the detection and prosecution of

. cases of cruelty to animals under sec. 34 of Act V of 1861,'' have been
added at the end of the certificate after the words " Police Officer." Tlic
object was clearly to limit the powers of the i>ersons appointed to a special
class of cases.

The insertion of the words " clause 2 of section 34 of " before " Act
V of 1861 " was clearly due to a mistake, as the appointment could onlv
have been made under sec. 7 of the Act. We cannot, however, hold that
the appointments were rendered invalid by that mistake when from the
terms of the certificate it is clear that it was intended that the appoint*
ments should bo made under the provisions of Act V of 1861. Even,
however, if this mistake were to be held to constitute a legal defect in the
certificate, it is, in our opinion, covered by explanation 2 of sec. 21 of the
Indian Penal C'ode. It has not been disputed that since their appointment
the petitioners have exercised the powers conferred on them by the certifi-
cate and so have been in actual possession of the situation of public
servants. Clause-j 7 and 8 of sec. 21 read with explanation 1 of sec. 21
of the Indian Penal Code clearly include the petitioners within the defini-
tion of public servants. The section provides that the words "public
servant" denote (clause 7) "Every person who holds any office by yiriuo
of which he is empowered to place or keep any person in confinement" :
and (clause 8) "Every officer of Government whose duty it is as such
officer to prevent offences, to give information of offences, to bring ofFenders
to justice, or to protect the public health, safety or convenience," and
Explanation 1 runs thus : " Persons falling under any of the above dcs-
criptions are public servants, whether appointed by Government or not."
Under their certificates of appointment the powers referred to in clauses 7
and 8 of sec. 21 of the Indian Penal Code have been conferred on the
j)etitioners and they have exercised those powers. The mere fact that



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Vol. ni] The Criminal Law Journal Reports. 423

SAMIR SHEIKH V. JAHED SHEIKH.

they have exercised their powers suhject to the control o£ the officers of
the Society, is not sufficient to remove them from the category of public
servants.

I hold, therefore, that the ground on which the Hide was issued fails
and we discharge the Kule.

StepJien, J. — I agree with the judgment just delivered. I have only
to add that I consider that the variance between the certificates addressed
to the petitioners, and the form given in the Schedule to Act V of 1861,
does not invalidate the appointment of the petitioners as constables under
the Act. I consider that the certificates in this case must be read as
appointing the persons to whom they are addressed as ordinary constables,
with a direction from their superior officers, that they are not to act as
such, except, for the purposes of clause 2 of sec. .34 of the Act. It is
open to the police authority named in the Act, to give his subordinates
such an order ; but if he appoints a constable at all, he can only appoint
him under sec. 7 : and in that case he appoints him a constable for all
purposes whatever. The Act does not sanction the appointment by the
police authority of any person who is not to be under his orders, and for
whose conduct he is not, from a disciplinary point of view, to be respon-
sible.

Ifitle discharffed,

(3 C. L. J., 478.)
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Harch 21, 26 [CRIMINAL REVISION No. 139 of 1906.] 1906.

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

SAMIR SHEIKH r. JAHED SHEIKH.

(yum Hal Proeedure Codr (Act V of 1898)^ nee, 14ij cL (4) — JUfMnnl to examine witnegneg
— Di9f>retioH of Magistraie—yirt alitayn n qttegtlon ofJyrhdU'tlon,

A Magistrate acting under sect ion 145, Criminal Procedure Code, has a discretion in the
matter of examination of witnesses. He is not bound to examine all the witnesses adduced hy
the parties, but may limit the number for good and sufficient reason.

In ^fannMtlM XtUh Jfttf^ir v, Jiarada Prasad Itty Chawdk^ry, (1) it was not intendo<l to
lay down such a broad rule tlmt the Magistrate had no discretion but was bound under all
circum-ttances to examine every witness producetl in a proceeding under section Hr>, Criminal
Pro'wlnre C«^e. and that if heomitteil to do »o he actctl without jurifdiction.

The discretion, however, is one which must be exercisctl with due care and caution and
with a careful reganl to the circumstances of each particular case.

Application under section 15 of the (liarter for setting aside an order
l>assed by the Deputy Magistrate of Faridpur in a proceeding under sec-
tion 145, (Viminal Procedure Code, declaring posso<»sion in favour of the



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424 The Criminal Law Journal Reports. [Vol. IH

SAMIR SHEIKH r. JAHED SHEIKH.

second party. On the application of the first party a Bule was issned
upon the District Magistrate to show cause why the order should not l)o
set aside on the ground that it was passed without jurisdiction as the
Magistrate refused to examine the witnesses produced to prove the posses-
sion of the petitioner.

Babu Snrendra JVath Gtiha in support of the Rule.

Dr. Priya Xath Sen showed cause.

The facts appear sufficiently from the judgment of the Court, which
was delivered by

Brett^ J. — In this case a Rule has been issued on the District Magis-
trate, and the opposite party, to show cause why the order of the Deputy
Magistrate, passed on the 12th December 1905, under section 145, Criminal
Procedure Code, should not be set aside on the ground that it was passed
without jurisdiction as the Magistrate refused to examine the witnesses
produced to prove the possession of the petitioner.

In showing cause to the Rule the Deputy Magistrate has explained
that of the witnesses produced by both parties he examined as many as he
thought sufficient to enable him to <letermine who was in actual possession
of the land. Referring specially to the evidence adduced on behalf of the



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 74 of 91)