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petitioner, the first party in the proceedings, he says, " But when it was
found out that the deposition of Sami himself — the first party — threw a
great deal of suspicion on the fact of his possession, and the deposition
of Tarini Charan, the landlord's gomastha, did not help the case, a petition
was filed." This was done after the parties had accepted the discretion
of the Magistrate to bring forward only such witnesses as would enable
him to determine who was in actual possession of the land in dispute.

We have referred to the record of the proceedings and we find that
the Deputy Magistrate in fact examined three witnesses on behalf of the
petitioner. And Ave take his explanation to moan this, ihat, af^er he had
examined these witnesses and had come to the conclusion that the case of
the petitioner had broken down, the petition was filed either to prolong the
proceedings or with a view to support a reference to this Court in the
event of its being refused.

In supporting the Rule the learned pleader for the petitioner has con-
tended that under the provisions of clause 4 of section 145, Criminal Pro-
cedure Code, the Magistrate was bound to examine all of the witnesses
whom the petitioner produced and in support of this contention he has
relied on the decision in the case of Manmatha Xath Milter v. Baroda
Prasad Hoy Chowdlniry (1). In that case it was held that the refusal of
the Magistrate to exann'ne seven witnesses produced by the first mrtv

(1) (1904) I. L. R, 31 Calc, iiSr,,



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Vol. in] The Criminal Law Journal Reports. 425

SAMIR SHRIKH r. JAHEl) SHEIKH.

without giving any other reason than that he thought sufficient evidence
had been recorded and further evidence was not necessary, was in direct
contravention of the provisions of the law contained in clause 4 of section
145, Criminal Procedure Code, which says that the Magistrate " shall
receive the evidence produced."

If that decision was intended to lay down that the Magistrate had
absolutely no discretion in the matter we should have l)een unable to agree
with it and should have referred the (juestion to a Full Bench. But after
consulting one of the Judges who delivered the judgment in that case we
find that it was not intended to lay down such a broad rule that the Magis-
trate had no discretion whatever and was l)ound under all circumstances
to examine every witness produced in a proceeding under sec. 145,
Criminal Procedure Code, and that if he omitted to do so he acted without
jurisdiction. In that case the Magistrate had acted arbitrarily and with-
out reason in refusing to examine the witnesses, and the Judges in that
case held that the proceeding of the Magistrate was contrary to law and
so without jurisdiction.

In the present case the Magistrate has explained that after he had
examined the petitioner and his chief witness he found that the case of the
petitioner had broken down and therefore he refused to examine the other
witnesses, who were present as it would have involved a pure waste of
time. It does not appear then that in this case the Magistrate acted
arbitrarily, or that his refusal to examine the other witnesses was based on
no reason, as was the fact apparently in the case to which we have been
referred. The discretion which the Magistrate exercised in the present
case is one which every Court is vested with, but at the same time we
would say that it is one which must be exercised, not arbitrarilv but with
due care and caution, and with a careful regard to the circumstances of
each particular case.

In the present case we are unable to hold that the Magistrate erred
in the exercise of his discretion or that he acted without jurisdiction.
The Rule is, therefore, discharged.

Utile dhrharqeiL



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426 The C*RimNAL Law Joubnal Reports. [Vol. Ill

XGA KUN r. EMPEROR.

(U. B. i?., 1906.)
IN THE COURT OF JUDICIAL COMMISSIONER, UPPER BURMA.

Oct. 3 [CRIMINAL REVISION No. 51ft of IftOo.] 1905.

Present : — Mr. G. W. Shaw.
NGA KUN r. EMPEROR.

Criminal Procedure Onle (AH V of 1898), eectian* 190, 251—263, 629, 5^.
Effect of Irrc^lar proceedings bj MagiBtiatc without juri^iction.

Mr. J. N. Basil, for Applicant.

Mr. //. M. Lmter, for the Crown.

Judgment. — The Police sent Nga An and (applicant) Nga Kun for
trial, charging tlie former under section 37ft and the latter under section
ill, Indian Penal Code, with respect to some timber.

The 3rd class Magistrate of Tagaung took cognizance of the ca«e,
and, after taking evidence for the prosecution and examining the accused,
charged Nga An under section 379 and sent him to the Sub-divisional
Magistrate for whipping under section 3ift, Criminal Procedure CVkIo,
and discharged the Applicant Nga Kun. He also directed the arrest of
a man named Nga Nyo, who was present in Court, as he thought from
the evidence that he ought to be prosecuted under section 489 in connec-
tion with the same transactions.

The Subdivisional Magistrate seeing tliat the 3rd class Magistrate
had no jurisdiction to try a case falling under section 411, Indian Penal
Code, directed (Applicant) Nga Kun to be re-arrested and tried along
with the other two. He thought the 3rd class Magistrate had tried Appli-
cant Nga Kun. and that his proceedings were therefore void under section
530, Criminal Procedure Code.

Applicant Nga Kun now comes before me and it is contended on his
l)ehalf that the Subdivisional Magistrate took cognizance of the charge
against him under section 190 (1) {o\ Criminal Procedure Code, and
therefore as he did not comply with section 191, his proceedings are
void.

In the case of Sga Palnfj and others v. Queen Empress* it was no
doubt stated Hiat failure to comply with the provisions of section 191
is a material defect which invalidates the proceeding, and not a mere
formal irregularity. But tlie case was decided on another ground. The
point is referred to but not decided in Xga Ba v. King^Emperor^ , In
the present case also I do not think it is necessary to decide it. The
ground on which Sffa Paimjs case was decided appears to me to cover
the present case. It was tliere held on the authority of two Calcutta
♦ V, \\. It.. 1807.01, 1. :>6. t r. R. R., 1002-03. Orl. Pro



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Vol. Ill] The Criminal Law Journal Reports. 427

KGA KUN r. EMPEROR.

Ilulings to which I have referred, that when a Magistrate has duly
taken cognizance of an oflEence on a complaint or on a police report, and
finds from the evidence before him that certain persons not already accused
should be tried for being concerned in it, he is justified in making them
accu.^ed persons in the ease, does not proceed under section 190 (7) (^),
and is not debarred from trying the case.

The essence of the Calcutta cases was that it is not necessary that a
complaint (or a police report) should expressly charge an accused person
to give the Magistrate jurisdiction to deal with him under clause (a) or
clause (/i).

In the present case the 3rd class Magistrate's proceedings so far as
regards Nga An were quite regular, though no doubt what he ought to
have done, seeing that (Applicant) Nga Kun was jointly charged with
him, was to send both to the Subdivisional Magistrate without holding
any proceedings himself.

As regards Nga Kun (Applicant) it is perhaps open to some doubt
whether he should be held to liave " tried an offender " [section 5.S0 (/>) ].
" Trial of an offender " is not defined in the Criminal Procedure Code.
But I think that what the code contemplates is that the tvial of an accused
person begins wlien he is called upon to plead to a charge and that a
Magistrate's proceedings before this stage has been reached are in the
nature of an enquiry. This view appears to be supported by the language
pf sections 177-184,"^ 209, 253-254, 256, 347, 403 and 451.

As far, however, as the present case is concerned, I am of opinion
that the point is immaterial. If a Magistrate's proceedings in a warrant
case down to the discharge of the accused do not amount to the trial of
an offender, the 3rd class Magistrate's proceedings in regard to Appli-
cant Nga Kun are covered by section 529 (e). He took cognizance of
an offence falling under section 411, Indian Penal Code, as far as can
be seen erroneously in good faith, and his proceedings are not void and
cannot be set aside. On the other hand, if in what he did in regard to
Nga Kun he tried an offender his proceedings were void under section
530 (/)). In either case there was nothing to interfere with further
proceedings against Applicant Nga Kun.

As regards Nga Nyo, the 3rd class Magistrate was not competent to
try an offence punishable under section 489, and therefore he was not
empowered by section 65 to arrest Nga Nyo in his presence. But I
think that on the decision in Npa Paing'i case and the Calcutta Rulings
there referred to, the 3rd class Magistrate must be presumed to have
taken cognizance of the charge against Nga Nyo, on the Police report.
When the proceedings came )>efore the Subdivisional Magistrate he took



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428 The Criminal Law Journal Reports. [Vol. Ill

MI LE r. nga paw din.

coptnlzanco iindor section 349 as regards Nga An and under section 34li
as regjirds Nga Nyo, and I tliink tliere can bo no doubt tbat he was then
in the same position he would have occupied if the Police report had been
presented to him direct, and that he had full power to proceed against
Applicant Nga Kun and Nga Nyo under section 11)0 (7) (A), as explained
in the Ruling in X(ja Paimj\< c^'ise. The irregular proceedings of the
3rd class Magistrate in reference to Applicant Nga Kun and Nga Nyo
could not aflEect the Subdivisional Magistrate's jurisdiction. The order
of discharge, even if it was valid as explained in Mi The Kin v. K. Tha^*
did not need to be set aside. Its existence was no l)ar to further proceed-
ings, and the Subdivisional Magistrate seeing that the 3rd class Magistrate
had acted without jurisdiction in discharging applicant was only doing
what was right in proceeding against him as if nothing had happened.
The learned advocate contends that Afi The Kin if case is distinguishable
because here the Subdivisional Magistrate had neither complaint nor Police
report before hhn so far as Applicant was concerned. But this contention
is not tenable, in view of the decision in ^ffa Paincf and others v. Queen-
Kmpres.% already referred to. So in respect to Nga Nyo, I hold that
the Subdivisional Magistrate was taking cognizance of the offence under
clause {h) of section IDO (i), and that the 3rd class Magistrate's irregular
proceedings did not affect this jurisdiction, which the Subdivisional Ma-
gistrate had.

The District Magistrate, when the proceedings came to his notice,
pronounced the whole of the 3rd class Magistrate's proceedings void
under section 530. But, as will be seen from what has gone before, this
was as incorrect as it was unnecessary.

As regards the merits of the case, I see no ground for doubting that
the Applicant and the other two accused were rightly convicted. The
Sessions Judge no doubt altered the conviction to section 489, because
there was no evidence of any inovimj (section 378, Indian Penal Code).
The offence was none the less serious and the sentences were by no means
excessive.



(U. B. 7?., 1905.)

IN THE COURT OF JUDICIAL COMMISSIONER, UPPER BURMA.

Dec. 12 [CRIMINAL REVISION No. 1)32 of 1905.] 1905.

Present .—Mr. (I. W. Shaw.

MI LE r. NGA PAW DIN.

Cnniinal Procedure Code (Act V of 1 SOS J, JtcrfioH 4SS.

The primary questions to W. dcoidoil in reference to the claims of a wife for maintenance
arc (1) whether the husband has sufficient means (2) whether he nejrlects or refuses to main-

* r. n. K. ll>04-0r., Cr. Pro.. 111.



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Vol. Ill] The CuiMiNAL Law Jouknal Repou'I'S. 421)

MI LE r. XGA PAW DIK.

tain his wife. The language of the section is inconsistent with the caimcity of a wife to make
a contract absolving her husband from his statutory liability. Where a settlement has been
made, whether intended to be final or not, the question for determination is whether that
settlement now furnishes sufficient means of support.

Mr. f. G. S. Pillaf/, for applicant.

Mr. H, X. Hirjee, for respondent.

Judgment. — In 1001 applicant applied for maintenance for herself and
child, hut on receipt of Rs. 300 from respondent withdrew her application.
This was on the 27th May 1901. In Octoher 1903, she applied again
stating that the Rs. 300 had been expended, respondent objected that the
Rs. 300 had been paid in final settlement of all claims. The Magistrate
made an order for Rs. G a month for the applicant and Rs. 3 for the child.
On the 27th January 1904, my predecessor modified this order by dis-
allowing maintenance for the applicant herself. The ground on which
he proceeded was that " the sum applicant received was sufliciont to keep
her for a good deal more than 30 months if she had not simply lived on
the capital." It was also remarked that " it is extremely improbable that ''
respondent " would have paid such a large sum at all unless it was agreed
to be a final settlement and in point of fact it should be quite sufficient
if prudently managed." But ** whether the wife can by contract absolve
the husband from his statutory liability " was not decided. On the 7th
June 1905, applicant (for the third time) renewed her application for
maintenance. She gave evidence herself to the effect that the whole of
the Rs. 300 had been expended, mainly on payment of debts, and in con-
sequence of her illness. The respondent on the other hand gave evidence,
himself, that he paid the Rs. 300 in satisfaction of all claims and also that
he had no property of his own, but his mother was well-to-do and had
property.

The Subdivisional Magistrate in his final order was not very consis-
tent. After saying that the intention of the law is to restrain a man from

leaving his wife whom he is able to support to be a burden on the

public or on private charity (a quotation from Mi Su v. Sasaoon*)^ he
goes on to say that the respondent in the first instance made ample pro-
vision for his wife if the money, the capital, had been properly

managed (almost a quotation from Mr. Irwin's order of 27th January
1904), and then he " does not see what further claim the applicant has
on respondent." This was begging the (iiiostion.

I am of opinion that the language of the section which is plain and
intelligible must be adhered to and what it says is this : —

" If a person having sufficient means, neglects or refuses to maintain

his wife the District Magistrate, etc., may upon proof of such neglect

♦ U. B. R., 1892-96, 1, 04.



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130 The Crimikal Law Journal Deports, [Vol. Ill

EMPEROR r. KGA BEIK KYI.

or refusal order such person to make a monthly allowance, etc/' It may
be that if the respondent had invested the Rs. 300 instead of paying it
to applicant or if applicant had invested it herself it would have yielded
a sufficient income to maintain her for the rest of her days. Bat this is
immaterial if in fact the money was spent or lost, and is no longer yielding
a sufficient income.

I hold that the plain provision of the law above quoted is inconsistent
with a wife making a contract to absolve the husband from liability. A:i
Mr. Burges observed the object of the law is to prevent the wife whom
her husband is able to support from becoming a burden on other people,
and this object would not be obtained by a contract which ultimately left
the wife to the charity of her neighbours.

Again the section does not say that a wife is not eligible for main-
tenance if she is able to maintain herself, or if she has made a bad use
(rf money which her husband gave her some time back.

As in the case of a settlement for the maintenance of a child (dealt
with in Nga Mya v. Mi Bok Son* and cases there referred to), the ques-
tion is whether the settlement made by the husband still furnishes sufficient
means for the wife's sup|)ort. The Magistrate examined no witnesses but
the parties and their statements were not sufficient to base a proper find-
ing upon.

I set aside the Magistrate's order dismissing the application, and
direct that he proceed to enquire into the points necessary to be determined
and that he then pass a fresh order.

It is admitted that applicant is respondent's wife. What the Magis-
trate then has to find out is (1) whether respondent has sufficient means
and (2) whether he refuses or neglects to maintain applicant. On the
last point what has to be ascertained in the present case is whether the
lis. 300 which respondent paid to applicant in 1901 is still furnishing
!!»ufficient (or any) means of support for applicant.

(U. B. R., 1905.)

LN THE COUKT OF JUDICIAL COMMISSIONER, UPPER BURMA.

Nov. 2« [CRIMINAL REVISION No. 789 of 1905.] 1905.

Present :— Mr. G. W. Shaw.

EMPEROR r. NGA BEIK KYL

Kj^citc Act rXIlof 1896)— section 4J,

The use of artificial means to hasten the fermeutatiou of what is alreatly fermeutetl Hquor,
niid to preserve it or make it more palatable docs not amount to making or manufacturiijg
fcnnentecl liquor within the meaning of section 45 of the Excise Act.

*U.B.R., 1897-01,1, 108.



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Vol. Ill] The Ckiminal Law Jouunal Heport!^. 431

EMPEROR r. KGA BEIK KYI.

Mr. H, M. Luttevj Government Prosecutor for tJie Crown.

Judgment. — In the case of A7w^-JE^m/>ero/* v. J// Thk (1), the accused
had been convicted of " manufacturing fermented tarr by putting (so-called)
fresh tari into a pot that contained or had contained (admittedly) fermented
tariy and it was held by Mr. Irwin that the offence of manufacturing fermen-
ted tati could not be committed, because tari was already fermented liquor
within the meaning of the Act from the moment it was tapped. The
conviction and sentence were therefore set aside. I am unable to con-
cur with the learned Sessions Judge who has referred the present case
when he says that Mr. Irwin's opinion was an obiter diction, since the
decision of the case did not depend on it. It appears to me that the
decision did depend on the view which Mr. Irwin took that the oKence
of manufacturing tari could not be committed, because tari was already
fermented liquor from the moment it w as tapped. It was expressly based
on this ground.

So in the unpublished case of Kuig^Emperor v. Tliet She (Criminal
lie vision Xo. 107 of 1905 of this Court) although the conviction could not
l>c sustained because it was based on inadmissible evidence of a confession
to a police officer, it was also held that (even if the evidence had been
admissible") the conviction could not be sustained l>ecause putting alin into
tari could not constitute manufacture since tan fermented spontaneously
[i.^., was already fermented liquor (from the time it left the tree) ]. I
am unable to agree that this was an obiter dictum either.

I do not know what the Sessions Judge refers to when he speaks of
the Courts in Upper Burma being bound by the obiter dicta of the Judicial
Commissioner.

The position appears to me to be unassailable. 2ari is fermented
liquor from the moment it leaves the tree, and is so defined in the Excise
Act (subject to a declaration by the Local Government). The case of
Queen^Empress v. Shice Hman cited in King^Emperor v. Mi Ihit (1) supports
the view that the use of artificial means to assist (or hasten) fermentation
cannot in these circumst^inces amount to " manufacturing." To manu-
facture is to convert by some artificial process raw mat<;rial into something
else. Here the object of the use of alia and tree-barks, is not to convert
raw material into somethini^ else, but merely to hasten fermentation and
to preserve or improve " - '.linking purposes) what is already fermented
liquor.

That the natural process of fermentation is slow, and the result
unsatisfactory from the consumer's point of view, appears to me to be
(I) U. B. K^ 1905, Excissc 15, page 3.



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ii\2 The Chimin al Law Journal Reports, [Vol. Ill

EMPEROR r. MI PYO NYO.

iininatcrial. The Excise law as it stands does not punish assisting tlie
natural process of fermentation with the object of getting quicker and
better results. Still less does it punish means taken to preserve or make
fermented liquor more palatable.

The argument that the use of the artificial process will extend iE
convictions are not sustained, may be an argument for the amendment
of the law, but as regards the interpretation of existing law is beside
the point.

The Government Prosecutor who was instructed to support the con-
viction in this case, has been unable to do so. He admits that the use o£
artificial means to hasten the fermentation of what is already fermented
liquor, and to preserve it or make it more palatable does not amount to
making or manufacturing fermented liquor within the meaning of section
45, Excise Act. He also admits that the decision in King-Emperor \.
Mi Tldt (1) rested directly on this point.

For these reasons I am of opinion that there is no reason for dis-
senting from the decision in Mi ThiCs case and that the conviction in
the present case was bad, and I set aside the conviction and sentence
accordingly.

The proceedings arc returned.



(i\ B. B., 1905.)

IN THE COURT OF JUDICIAL COMMISSIONER, UPPER BURMA.

Dec. 22 [CRIMINAL REVISION No. 1130 of 1905.] 1905.

Present :— Mr. G. W. Shaw.

EMPEROR r. MI PYO NYO.

Penal Code (Act XLVo/JSOO), section 31 S.

The offence piini«be(l by section 318. Indian Penal Code, cannot be committetl uidess the
child has rjached such a stage of maturity at the time of birth that it might have been a
living child.

Judgment, — The accused Mi Pyo Nyo has been convicted and sentenced
to pay a fine of Rs. 20 or suffer one month's rigorous ini])risonnient under sec-
tion 318, Indian Penal Code, on a charge of secretly disposing of a child's
body and thereby concealing the birth of the child. The Magistrate
ought to have recorded admissible evidence to connect the accused with
the child before calling upon her for explanation or charging her. Mi
So's statement '* I heard that the child was Mi Pyo Nyo's child," was not
admissible under section GO, Evidence Act. There was apparently evi-
dence which was directly to the point that the Magistrate might have
taken.



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Vol. Ill] The Criminal Law Journal ItEPouts. 433

NARAVNSAWBIY r. A. BLAKE.

Bat it is clear from Mi So's evidence that the child was not mature.
It was nothing but a foetus that could not have lived. Mi So says it was
about a span long. This agrees with accused's statement that it was a
foetus of four or five mouths (see Lyon's Medical Jurisprudence, 2nd
Edition, pages 280—285).

Tlie c?^sc referred to in Mayne's conunentary on the Criminal Law
of India, 2nd Edition, paragraph 4G7, and cited in the order of reference
i<f an autliority for holding that the offence punished by section 318,
Indian Penal Code, cannot be committed unless the child has reached
such a stage of maturity at the time of birth that it might have been a
living child.

As there was no proof of this in the present case the conviction cannot
be sustained.

Apart from this it was not shown that there was a secret disposition
of the child's body (see Mayne in Joe, cit., pai-agrai)h 408). It was
merely let in a public place where it would be found by people not
looking for it.

Tlie conviction and sentence are set aside. The fine is to be refunded.



(12 Bur, L. n,, 69,)

IX THE CHIEF COURT OF LOWER BURMA.

Dec. G [CRIMINAL REVISION No. 1515 of IDOo.] 1905.

Present : — Mr. Justice Fox.

NARAYNSAWMY— Applicant,

Versus

A. BLAKE — Respokdent.

Trial of case in Magidrate'it pricatc room — whether object Um to it in allotcuhlc on rccigional
ajqdieatioft if ho objection taken in dmrt below — charge of abuse and cau«i tiff hurt aguinHt
European British subjcct^whether it is triable mminarihj — in mmmanj trial whether Magis-
trate is bound to state his reasons when he acquits— judgment to embodg substance of eridence in
appealable case — miether European British subject^ convicted under chapter 3o of the Criminal
Procedure Cole has the right to appeal— Criminal Procedure Code (Act V of J SOS) ss,263,
204, 40S, 414, 4t0 and 443,

This was an applieation to revise an oixler of acquittal The fii-st gi-ouud taken was that
the Magistrate failed to exercise a proper discretion in trying the case in camera.



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 75 of 91)