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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

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must prevail. The omission to give a receipt does not in my opinion
bring the appellant's action within the sphere of section 141, 1. P. C, nor ]
could I hold that the police sepoys were in physical possession of the
documents when the latter were placed in the cart, a point which has not
been urged before me. The Lower Court appears not to have realised
the importance of two circumstances, first, that the key which is always
considered to establish symbolical possession in the eye of the law (C/.
Holland's Jurisprudence, p. 167) was for a long time retained by Bhaya
Wala ; secondly, that Bhaya Wala was not taking possession or enforcing
his title, but maintaining and defending his lawful and peaceable posses-
sion which had apparently long remained undisturbed and was actually
sanctioned by article 33 of the partition settlement. I am therefore
compelled to differ from the conclusions arrived at by the learned Magis-
trate in his very detailed and comprehensive judgment. Yet I must not
be understood to say that Bhaya Wala's servants' action was other than
highly, reprehensible and improper or that it is in any way condoned. My
only duty is to find whether the evidence on the record discloses a criminal



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450 The Criminal Law Journal Reports. [Vol. Ill \

In re biahesh chandra pandey r. basanta kumar das.

oflfence, and after very careful study of the facts and of the arguments
advanced, I find that it does not.

For the above reasons I reverse the conviction of and sentence passed
Upon all the present appellants by the lower Court, and direct that the
fines if paid be refunded, and that any of the appellants who may be
sufFering imprisonment in default be released.

As regards the property concerned, the possession of these account
books and records must be returned to the possession from which they
were taken, namely that of Bhaya Wala, since no offence has been held
proved in respect of them. But this order must be subject to the i>olitical
control of the Prant Officer who will no doubt take steps to enforce the
terms of the partition deed.

(Sd.) H. D. KENDALL,
Camp Songadh : Judicial Assistant,

8th February, 190(5. Kathiawar,



(10 C. W. X, 667.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Oct. 21 [CRIMINAL REVISION No. of 1905.] 1905.

Present : — Mr. Justice Mookerjee.

In re MAHESH CHANDRA PANDEY,— Petitionek,

Versus
BASANTA KUMAR DAS,— Opposite Party.

Bengal Municipal A^ (HI of 1880, B. €.), ss, 270, SSO^Bfi^law Xo, 64 m^ide nmUr
9, 660 — ^Boad^ or ^drain^meaHimf of,

Tbe'itKur or Mraiii' referred to in s. 270 an<l Bye-law No. 64 ma'le umler g. 350
of Ibe Bengal Municipal Act (III of 1880. B. C), must be a road or dmin b-lunging to the
Municipality or a public roa<l or drain. It would be ultra rires for a Municipality to interfere
with a private road or drain.

The facts of the case will appear from the judgment.

Mr. P. L. lioy^ Babus Atulya Charan Base, Aghore Nath Sil and

Prokash Cliaiulra Sarkur for tlie Petitioners.

The judgment of the Court was as follows : —

Mookerjee^ J. — This is a rule issued by the Court calling upon the
District Magistrate of Howrah to show cause why the conviction of the
Petitioner and sentence of fine passed upon him should not be set aside.

No one appears to show cause on liehalf of the Magistrate, but an
explanation has been submitted which has been placed before me. The
Petitioner was charged with having first picketted bullocks by the side o£



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'VgI. Ill] tHE Criminal Law Journal Reports. 451

In re mahesh chandra pandey v. basanta kumar das.

the Municipal drain and, secondly, with having allowed offensive matter
to run or be thrown into a surface drain near the public road.

It was contended on behalf of the Petitioner in the Court belpw ik^i
the drain by the side of which he had picketted bullocks was not a Muni-
cipal drain and that therefore he was not liable to be convicted under bye-
law 64 made under sec. 350 of the Bengal Municipal Act. It was further
argued that he had not allowed offensive matter to run or be thrown in
any drain belonging to the Municipality. The learned Deputy Magistrate
declined to go into the question of title raised in this proceeding, namely,
whether the drain in question was public drain vested in the Municipality
because in his opinion sec. 270, cl. (2) of the Bengal Municipal Act as
well as bye-law No. 04 are applicable to all drains. In my opinion this
view is clearly unsound. Sec. 270 provides (I am quoting so much of the
section as may be supposed to be applicable to the case now before me)
" whoever within a Municipality causes or allows the water of any sink,
sewer or cesspool or any other offensive matter belonging to him or being
on his land to run down or be thrown or put upon any road or causes or
allows any offensive matter to run down or be thrown into a surface drain
near any road shall be liable to a fine not exceeding 25 rupees." It is
obvious that this has to bo read along with the first clause of that section
and in construing it we must not overlook the fact that it finds a place in
the Bengal Municipal Act. The only reasonable construction which can be
put upon it is that the road or drain to which reference is made in the
clause nmst be a road or drain belonging to the Municipality. It could not
have been intended by the legislature to authorise any Municipality to
interfere with the user of any priv4ite drain by a private individual. In
the same way bye-law No. G4 whicli was apimrently made under sec. 350
of the Act no doubt says in broad language " no person shall tether or
picket any animals on any road or by the side of any drain." But we must
put a reasonable construction upon it and the on^y reasonable construction
we may put upon it is that the road or dram in question nmst be a public
road or a public drain. If the Municipality were by the bye-law made
under sec. 350 of the Bengal Municipal Act authorised to interfere with
private property it would be in my opinion ultra vires.

The result accordingly is that the facts found by the Deputy Magis-
trate are insufiicient to support the conviction.

The rule, therefore, must be made absolute and the conviction and
sentence set aside.

The fine if paid will be refunded,

Itide made absolute.



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452 The Cruuxal Law Journal R£PORt&. [Vol. lU

DEONANDAN PERSHAB SINGH r. EMPEROR.

{10 C. W. y., 669.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Jan. 22 [CRIMINAL REVISION No. 1051 or 1905.] 1906.

Present : — Mr. Ju.ntice Brett and Mr. Justice 8te|ihcn.

DEONANDAN PERSHAD SINGH,— Petitioner,

Versus

EMPEROR,— Opposite Party.

Pttnal Cifds (Art XLV of 1860^, r. ISl^Briher^-Erid^'Hrf Ad (I of lS72j.^lU
(bj—JSridrMte of acnftHplice^Admisslb'tlittf^Corirphoratian^Brihe-yirer ami Kitmnta to
patfmeiU nf bribe,

Tbe iierwD wUo given the bribe im an abettor of the offence under & 161, I. P. C, and a&
iwch an accomplice. But all |>erHoii8 coming technically within the category of accomplices
cannot be treated a« precinely on the same footing, and no general rule on the subject can be
laid down. The wituenncs to the payment of a bribe are not accomplices unlets they bad co-
operated in tbe payment of tbe bribe, cht were instrumental in the negotiations for ity pay-
ment.

Where the bribe-gfiver docs not offer a bribe willingly, but the official concemeil makoa
UHC of his official position to enforce his illegitimate demaml, and the witnesses as to payment
of bribe are not striving to save them^Hilves by throwing the blame for the offence upon tbe
bribe-taker :

//#»W— That a conviction could be base<l on the uncorroborated testimony of such witnesses
though accomplices. At any rate they are such witnesses that a much slighter d^ree of cor-
roboration is needed to establish their cre<lit than would be the case if they were entirclv
voluntary accomplices in the c^ence which they B)>eak to.

The facts of the case material to this rejwrt will appear from the

judgment.

Mr. //i7/, Mr. A liahini and Moulvi Z. R. ZahUl^ for the Petitioner.

Mr. Douglas White, for the Crown.

The Judgment of the Court was as follows : —

The Petitioner, Deo Nandan Pershad, was a Head Constable of the
District Police of Lohardaga stationed at Silli Thana. He was convicted
on trial before the Joint Magistrate at Ranchi of three offences under sees.
161 and 1(55, I. P. C. The three offences really formed jmrt of one tran-
saction and though a sentence of one year's rigorous imprisonment was
passed for each offence the Magistrate ordered that the sentences should
run concurrently. In addition, the Petitioner was sentenced to a fine of
Rs. 43 or in default rigorous imprisonment for a further period of one
month.

On appeal to the Judicial Commissioner of Chota Nagpur the convic-
tions and sentences were upheld.

The present rule was obtained from this Court on the main ground that
the conviction of the Petitioner rests entirely on the evidence of accom-



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Vol. Ill] The Criminal Law Journal Reports. 453

DEONANDAN PBRSHAD SINGH r. EMPEROR.

plices and that that evidence has not been corroborated as to material parti-
culars connecting the Petitioner with the offence.

The learned Counsel in supporting the rule has contended that the
Jutlge has misdirected himself as to what persons are accomplices, as to
the nature of the evidence necessary to corroborate the evidence of an
accomplice : and further that he has erred in law in holding that the
person who gave the bribe was not an accomplice of the person who re-
ceived it.

The case for the prosecution, stated briefly, was that the complainant
was the lessee of certain jungle in which lac was produced and that on the
21st and 22nd April 1905 one Data cut and carried off lac valued at about
Rs. 200. The lessee complained at the Silli Thana on the 23rd April, but
was told to come again on the 24th. On the 24th April the accused, who
was Head Constable at the Thana, demanded Rs. 50 from the complainant
as a bribe for enquiring into and sending up the case for trial, and com-
plainant after some objection finally agreed to pay him Rs. 50. The sum
of Rs. 20 was paid to the accused on the 27th April : another sum of
Rs. 20, on the 28th April ; and on the 30th April a goat valued at Rs. 3
was handed over to him.

To prove the demand of the bribe by the accused there was the evi-
dence of complainant and his mother (P. W. 1 and 2) and Sainath Chow-
kidar (P. W. 7). To prove the delivery of the first sum of Rs. 20 there
was the evidence of Phand (P. W. 4) and Gurdyal (P. W. 5) who obtained
the money from one Chamer and stood security for its repayment and
Budhan Chowkidar (P. W. 11) who was present with complainant and
Gurdyal when the money was handed over to the accused. To prove the
payment of the second sum of Rs. 20 there was the evidence of Radha
Nath who lent the money to the complainant, on pledge of his three
bullocks, and of Gurdyal and Bhudan in whose presence the money was
handed to the accused. And to prove the delivery of the goat there was
the evidence of Jhumak Ahir who sold the goat for Rs. 3 and 4 others
(P. W. 10, 12, 13 and 9) through whose hands the goat passed till it was
delivered to the accused.

The Sessions Judge accepted this evidence as proving the three charges
against the accused. Relying on the authority of the case of Akhof/ Kumar
Chuckerhutty v. Jagat Ch. Chuckerhutty (1) he held that as the bribe was
paid by the complainant under compulsion he could not be regarded as an
accomplice, and that the other witnesses to the delivery of the two sums o|
money and the goat to the Darogah were also not accomplices.

(1) I. L. R. 27 Cal. 925 (1900).



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4H TrtB Criminal Law Journal Reports. [Vol. Ill

DEONANDAN PERSHAD SINGH t\ EMPEROR.

Ih support of the rule the learned Counsel has first contended that the
Sessions Judge erred in law in holding that the complainant was not an
accomplice. He has urged that the case of Akhof/ Kumar v. Jaffot Cluindra
(1) is no authority for the view taken by the Sessions Judge, as in that
case the person who paid the money was in custody and was compelled to
pay the money to secure his release, whereas in this case the complainant
simply paid the money to the accused in order to secure the return of the
property which has been stolen and to avoid the expense of a case in C/Ourt.
He has accordingly contended that both the complainant and his mother
(P. W. 1 & 2) were accomplices. In support of this contention he has
relied on the case of Qneen-Empress v. Magan Lai (2) in which it was held
that the limits of the application of the doctrine of necessity as an excuse
for an act otherwise criminal are those prescribed in sec. 94 of the Indian
Penal Code.

On the authority of the case of Queen v. Chandra Cimndalin (3) he
has next contended that the evidence of Budhan (P. W. II), Gurdyal (P.
W. 5), Sainath P. W. 7 and Phand P. W. 4 is no better than the evidence
— of accomplices as they were cognisant of the crime and took no means to
prevent or disclose it, and similarly the evidence of the witnesses to the
delivery of the goat.

Further he has contended that the evidence of Radha Nath (P. W. 14)
(^nnot be accepted as sufficient corroboration of the evidence of the accom-
plices as he did not know for what purpose the money was borrowed from
him, and therefore his evidence failed to corroliorate the evidence of the ac-
complices on material points connecting the accused with the offence. He
has therefore argued that the conviction was unsafe having regard to the
rule of practice laid down in R. v. Wilkes (4), R. v. Farter (5).

The result of these contentions would appear to amount to this that in
no case under sec. IGl, I. P. C, can there be a conviction, as the person
who gives the bribe and all persons present when the bribe is given are
accomplices and the evidence of all persons who are not present and not
cognisant of the purpose for which the money is taken is worthless for the
purpose of corroboration. We are unable to accept this view as correct.

The contention is no doubt correct that under the law the person who
gives the bribe is an abettor of the offence under sec. IGl, I. P. C, and
as such would be punishable under sec. 116, I. P. C. He must therefore
be regarded as an accomplice, and the rule of practice would then apply
which lays down that it is generally unsafe to convict an accused on the
evidence of an accomplice unless corroborated in material particulars con-

(2) I. L. R. H Bora. 116 (1899). (3) 27 W. R. Cr. L. 55.

(4) 7 Carr. ami Payne 272 (1836). (5) 8 Carr.antrPayneil 05^(1 837).



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Vol III] The Criminal Law Journal Reports. 456

DEONANDAN PER8HAD SINGH V. EMPEROR.

necting the accused with the offence. But at the same time we agree
with the view taken by the Judges of the Bombay High Court in the case
of King^Emperor v. Malliar Martand Kidkami (6) that in considering
whether this rule of practice applies to any particular case it must be
remembered that all persons coming technically within the category ot
accomplices cannot be treated as precisely on the same footing, and that
no general rule on the subject can be laid down.

Even though in this case the circumstances are not such as to place
it on all fours with the case of Akhoy Kumar v. Jagat Chandra (1) still
it cannot be lost sight of that it was not the complainant who willingly
offered the bribe but it was the accused who demanded it before he would
take up the charge lodged by the complainant and that he made use of
his official position to enforce his demands. The mere fact that the accus-
ed offered to secure the restoration of the stolen property rather than the
conviction of the offender makes little difference. He refused to act at
all or ever to read the complainant's information till the bribe was paid,
and though complainant in the end agreed to pay it he did it of necessity
rather than of his own free will. It is possible that the circumstances of
the present case, particularly the facts that the accomplices are not striving
to save themselves by throwing the blame for the offence on the accused,
but are rather doing the reverse, and that their guilt, such as it is, is
plainly not being used as an instrument to induce them to give evidence,
are such as would justify the exceptional treatment mentioned in 7?. v.
Chagan Dayaram (7), that is, are such as to justify a conviction on the
uncorroborated testimony of accomplices. They are certainly such that
a much slighter decree of corroboration is needed to establish their credit
than would be the case if they were entirely voluntary accomplices in the
offences which they speak to.

And from this point of view the corroboration of the statements of
the complainant and his mother is ample. The persons who lent the
money to the complainant and the persons who were present when it was
paid cannot in our opinion be held to be accomplices of the accused. The
circumstances of the present case very much resemble those in Queen v.
Deodhar Singh (8), where it was held that witnesses to the payment of
bribe were not accomplices unless they had co-operated in the payment
of the bribes, or were instrumental in the negotiations for their payment,
and they differ materially from those in jR. v. Chandra (.3) decided in an
opposite sense. We also hold that in a case like the present the evidence
of the persons from whom the money was obtained may be accepted as

(6) I. L. R. 26 Bom. 27 Cal. 144 (1899). (7) I. L. R. 14 Bom. 331 at p. 344 (1S90).

(8) I. L. R. 27 Cal 144 (1899).



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456 The Cbimikal Law Journal Reports. [Vol. Ill

JAGDEO SINGH r. EMPEROR.

corroborating the story of the complainant. As to the delivery of the
goat the evidence is not in our opinion open to objection as the evidence
of accomplices and folly proves its delivery to the accused.

Both the lower Courts have tested the evidence of the witnesses with
care and have accepted it as entitled to reliance. Under these circum-
stances, and having regard to the fact that there is ample corroboration
of the evidence of the complainant, we decline to interfere and discharge
the rule.

Rule discharged.



(26 A. W. N., 142.)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

April 21 [CRIMINAL REFERENCE No. 176 of 1906.] 1906.

Present : — Sir Stanley, Chief Justice.

JAGDEO SINGH,— Applicant,

Versus
EMPEROR,— Opposite Party.

Qfde of Cnminal Procftdure (Act V of 1898 )y $, 110 — Seat rity far good behariovr — 8mh-
ifiqn^nt conviction — Forfeiture of h&nd — Imprigonment for unexpired portion of period for
which tecurity had been given.

Held that where a person has given security for good behaviour and is subsequently con-
victed (of criminal trespass) the amount of his forfeited bond may be exacted, but he cannot
be forthwith committed to prison for the unexpired portion of the term for which security
had been taken. Semhle the Magistrate's remedy is to take fresh proceedings under Chapter
VIII.

The applicant Jagdeo Singh was in June 1901 called upon to furnish security for his good
behaviour for three years or in default to suffer rigorous imprisonment. The security was
furnished and Jagdeo Singh was released.

On October 2nd 1905, Jagdeo Singh was convicted of the offence of criminal trespass.
Jagdeo Singh was on October 16th sent to prison for the unexpired balance of the three
years, unless he furnished fresh security, and later the amount of his forfeited bond was
exacted.

The Sessions Judge of Gorakhpur, in referring the case to the High
Court, remarked : —

" The only order which in my opinion is wrong and contrary to law is the order of Pandit
Ijachman Sitaram Kher of 16th October 1905, whereby he conmiitteil Jagdeo Singh to prison
to suffer rigorous imprisonment unless and until he furnished fresh security because the secu-
rity originally furnished had been forfeited.

" I can find no section in the C'rirainal Procedure Code under which such an ortler can be
passed. Section 126 of the Code does not apply. It is only under that section and section 123
of the Cotle that a person can be imprisoned in default of furnishing the security demandetl and
under these sections a Magistrate can only commit to jail for a period of one year. On 16tli
October 1906 only one year four months and nine days had passed out of the period of three



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VoL m] The Criminal Law Journal Reports, 457

JAGDEO SINGH r. EMPEROR.

yenro, 8o that Pandit Lachmau Sitaram Kher hag been coramittetl to jail for a period consider-
ably over one year. But in my opinion there is no section in the Code which enables him to
commit to jail in this way for any period whatsoever. Chapter XLII of the Code does not
aathorise it. That Chapter only enables a Magistrate to commit to the civil jail for six
months, if the penalty onlereil to be paid cannot be recovered.

It was in the Magistrate's option to enforce the penalty or not, but I fail to see how
he also had power to conunit to jail and thereby doubly punish Jagdeo Singh.

If the bond for Rs. 500 has been forfeited, it may be that the Magistrate can take fresh
proceedings under Chapter VIII against him and call on him again to provide security, but I
know of no section which enablcH him thus summarily to sentence Jagdeo Hingh to one year
and seven months' rigorous imprisonment as he has done.''

Stanley^ C. J. — For tlie reasons stated by tlie learned Sessions Judge
I allow this application and set aside the order of Pandit Lachman Sitaram
Kher, dated the 16th of October 11)05, and further direct that if Jagdeo
Singh has given security (bail — Ed.) as directed by the order of the Ses-
sions Judge of the 6th of March 1906, that security shall be discharged*
If, on the other hand, Jagdeo Singh is in jail he will be at once released.



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•468 The Crinalim Law Journal Reports. [Vol. Ill

ABU BAKAR r. THE MUNICIPALITY OF NEGAPATAM.

(I. L. R., 29 Mad., 185.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS.

Oct. 9, IG [CRIMINAL REVISION No. 151 of 1905.] 1905.

Present : — Sir S. Subrahmania Ayyar, Offg. Chief Justice.

ABU BAKER— (Accused),— Petitioner,

Versus

THE MUNICIPALITY OF NEGAPATAM— Respondent.

I>iMrtct Mumc'ipalltleji Act (JladrasJ IV of 1SS4y w. 107, 191—Marhi, defiHlthm of—
Use of at marhet, wh<U amounts to.

Private property is usetl as a market when it is usetl as a public place for buying anil
selling.

Where a private market hatl been oricral to be closed, a pernon using the place for ^ellinfr
ftsh and flesh after a license hatl been refusetl is guilty of an offence under section 197 of the
Madras District Municipalities Act, or at any rate, of an offence under section 191.

The petitioner in this case was charged with having sold mutton with-
out having obtained a license before the Bench of Magistrates at Nega-
patain. The place where the accused sold the mutton was originally a
market which was closed by order in 1888. The accused applied for a
license which was refused.

The accused was convicted under sections 191, 197 and 264 of the
Madras District Municipalities Act and the conviction was affirmed on
appeal.

The accused preferred this criminal revision petition.

V. Rtjru NamUar for petitioner.

The respondent was not represented.

Order. — The convictions in these cases are clearly sustainable. The
place where the fish or mutton was sold was originally a recognized
market. It was closed under orders in 1888. No license having since
been granted for the use of the place as a market, the sales conducted by
the accused, in respect of which the charges are made, are punishable
under section 197 of the District Municipalities Act, if the use of the
place which is private property was as a market, i.e., as a public place
for buying and selling, such being the meaning of the term " market " in
law {see Bouvier's ' Law Dictionary,' volume II, p. 316). Even if it
were otherwise, the accused were guilty of an offence under section 191,
clause (2), of the Act as they without license sold " flesh " or fish " intend-
ed for food." The petitions are dismissed.



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Vk>L ni] Thb Criminal Law Journal Reports. 4(19*

EMPEROR t\ PALANIAPPAVELAN.

(I. L. R., 29 Mad., 187.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS.

Oct. 10 [CRIMINAL REFERENCE No. 49 of 1905.] 1905.



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 78 of 91)