Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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Present : — Sir 8. Snbrahmania Ayyar, Offg. Chief Justice.

EMPEROR r. PALANIAPPAVELAN and another.

Accused jm-wn^Xotice to arrtMed person yipce^mry before order in hh fatHmr can be set
aJtide,

An order by a Magistrate cli recti ng payment of comjHsnsation to the accused ought not
to be Het asi<le on appeal without notice to the accused. It will also be safer to give notice
to the officer appointetl by the Local Government referred to in section 422 of the Code of
Criminal Procedure.

The facts iiecessarj^ for this report are set out in the judgment.

The Public Prosecutor (Mr. E. B. Powell) opposed the Reference.

Order. — In this case the order awarding compensation to the accused
was reversed on the appeal preferred by the complainant, but without
notice either to the accused or to the Public Prosecutor. There is no
express provision directing that notice should be given to the former in
such a case. But on the principle audi alteram partem the accused shoulil-
have notice of the appeal in order that they may have an opportunity of
supporting the order passed in their favour.

As regards the view suggested by the Sessions Judge it would seem
that, according to the letter of the law, notice to the officer, if any,
appointed by the local Grovernment referred to in section 422 of the
Criminal Procedure Code is necessary even in such cases where the appeal
is not summarily rejected though there seems little reason for notice to
that officer in a matter in which the accused only are really interested.
Though the point is somewhat doubtful it seems to me that the safer
course in cases like this is to give notice to both the accused and the officer
referred to when the appeal is not summarily rejected. The order of the
Appellate Court is set aside and the Criminal Appeal No. 75 of 1905 will
be replaced on the file of Sub-divisional First-class Magistrate, Dindigul,
and disposed of according to law after notice to the accused and the
Public Prosecutor.



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460 The Criminal Law Journal Reports. [Vol. IIL

EMPEROR r. KARUPPANA PILLAI.

(I. L. R., 29 Mad., 188.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS.

Oct. 17. [CRIMINAL REFERENCE No. 74 of 1905.] 1905.

Present : — Mr. Justice Boddam and Mr. Justice Moore.

EMPEROR r. KARUPPANA PILLAI and another.

Criminal Procedure Code, (Act V of 1898), s. 423— Order vnder diretiiHg payment of eottM
not an enJianeement of tentence — Ckmii Fee* Act ( VII of 1870.)

An ortler umler section 31 of the Court Fees Act directing the accused, on appeal against
conTiction, to pay the costs of the complainant is not an enhancement of tho sentence.

The facts necessary for this report are set out in the letter of refer-
ence which is as follows ; —

" Under section 438, Criminal Procedure Code, I have the honour
to report the result of my examination of the records in Criminal Appeal
No. 119 of 1905 on the file of the First-class Sub-Divisional Magistrate,
Ramnad Division.

In Calendar Case No. 132 of 1905, the Sub-Magistrate of Pamban
convicted two persons under section 352, Indian Penal Code, and sentenced
the first accused to pay a fine of Rs. 5, in default to undergo a week's
simple imprisonment, and the second accused to pay a fine of Rs. 2, in
default to undergo three days' simple imprisonment and found that, under
the circumstances of the case, the complainant was not entitled to either
cost or compensation. The Sub-Divisional Magistrate while confirming
the Sub-Magistrate's order in appeal, also directed that the accused should
pay Rs. 1-8-0 to the complainant, and this order the Sub-Divisional Ma-
gistrate has passed under section 31 of the Court Fees Act. Under that
section the convicting (-ourt has to make such an order ; and the Sub-
Magistrate in this case having found that the complainant was not entitled
to any cost or compensation, the Sub-Divisional Magistrate's order in
appeal directing the accused to pay costs to complainant is illegal as it
amounts to an enhancement of the sentence. I submit that the order of
the Sub-Divisional Magistrate be set aside."

The Public Prosecutor (Mr. E. B. Powell) in support of the Refer-
ence.

Order. — We think that the Sul>Di visional Magistrate's order in
appeal directing the accused to pay the costs of the complainant is not
illegal as it does not amount to an enhancement of sentence. The order
is made under section 31 of the Court Fees Act, and is entirely irrespec-
tive of the penalty or sentence passed under the Indian Penal Code or the
Criminal Procedure Code. It has been held in Madan Mandid v. Ilaran



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Vol. IIIJ The Criminal Law Journal Reports. 461

MUTHIAH CHETTI r. EMPEROR.

Ghose (1) that it forms no part of the sentence, and the Court Fees Act
itself says that " the Court shall in addition to the penalty imposed " order
it to be paid. It is not therefore any part of the sentence, and the order
of the Sub-Divisional Magistrate in appeal correcting the omission of the
Court below to order it to be paid does not amount to an enhancement of
the sentence.

We disagree with the decision in Queen-Empress v. lanuavelu
Chetti (2). ^



(L L. IL, 29 Mad., 190.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS.

Oct. 16, 17 [CRIMINAL REVISION No. 146 of 1905.] 1905.

Fresetit : — Mr. Justice Boddam and Mr. Justice Moore.

MUTHIAH CHETTI and others— (Accused-Appellani's),
Petitioners,

1 ''ersus

EMPEROR,— Respondent.

(YuHiHal Procedure Code, Act V of 1898, m. 1 06 —Appellate Court caknot hind oeer to
Iteep peace when Lower Court mt one of tfte cla$s re/erred to in the section, and no bi-mch of
the jteace committed.

An accused pereoii caunot be bound over to keep the peace under section 106 of the Ckxie
of Criminal Procedure unless he is convicted of an offence of which a breach of the peace is a
necessary ingredient and unless it is found that a breach of the peace has actually occurred.

An Appellate Court cannot exercise the power under the section when the accused has not
been convicted by a Court such as is referred to in the section.

The petitioners in this case were charged with several others, in all
numbering 100, with liaving demolished the roof of a shed belonging to
P. W. 13. They were tried before the Second-class Magistrate of Tiruji-
pattur, and their defence was that the land was the property of the fir:*t
accused and that they had a right to demolish the shed. The Sub-Magis-
trate convicted the accused of oflfenccs under sections 147 and 426 of the
Indian Penal Code and passed sentences of fines on them. He found that
no force or violence had been used to any person.

On appeal by the petitioners, the conviction under section 426 was

set aside and the conviction under section 147 was altered to one under

section 143. The sentences were confirmed, and in addition, the first

accused was bound over under section 106 of the Code of Criminal Pro*

(I) I. L. R., 20 Cal, 687. (2) I. L. R., 22 Mad., 153.



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4fr2 The Criminal Law Journal Reports. [Vol. m

MUTHIAH CHETTI r. EMPEROR.

cedure to keep the peace for one year in two sureties of Rs. 500 -each,
and the rest in two sureties of Rs. 50 each.

The accused preferred this criminal revision petition.

Sir V. Bhasht/am Ayyangar for first and second petitioners.

Mr. M. A. Thirunarayana CItariar, V. Krislinaswami Ayyar and 5.
Srinivasa Ayyangar for petitioners No. 3. to G.

The Public Prosecutor (Mr. Powell) in support of the conviction.

Judgment. — The appellants have been convicted of being members of
an unlaw^ful assembly and have been fined under section 143, Indian Penal
Code. They have also been bound over to keep the peace under section
106, Criminal Procedure Code.

We are clearly of opinion that the conviction was right. It is found
that the appellants with others to the number of 100 armed with aruvals,
sticks, etc., went to a piece of land claimed by the prosecutor with the
object of taking possession of it and demolishing a building upon it and
though no force or violence was used — that was because the prosecution
party were overawed and did not come into conflict with them.

It is however contended, and we think rightly, that the accused in the
circumstances of this case were improperly bound over to keep the peace
under section 106, Criminal Procedure Code, inasmuch as (1) they were
convicted by a Second-class Magistrate only and not before a Court 8uch
as is named in the section and (2) they have not been convicted of an
ofFence involving a breach of the peace.

We think that the power given" to an 4pp®W»*^ Court to make an
order under this section is not an unlimited power to make such an order
in any circumstances, but is to be taken as giving the Appellate (*ourt
[)Ower to do only that which the lower Court could and should have done,
and therefore, that the power of the Court to pass such an order is confined
to cases where the conviction has been by a Court named in the section
and in circumstances required by the section.

It has been held that the word " involving a breach of the peace " in
the section, require that a breach of the peace should be an ingredient
of the offence proved, and that before the section can be put in force there
must be a finding that a breach of the peace has occurred (see Baidya
Xath Majumdar v. Niharan Chunder Gape (1) and Kannookaran Aunhu"
mcul and others v. Emperor (2) ). As in this case there was no finding
that a breach of the peace had been committed, and the offence for which
the accused were convicted did not necessarily involve a breach of the
peace and no breach of the peace was in fact committed, we sot aside the

(1) L L. R., 80 Cal., 98. (2) L L. R., 26 Mad., 469.



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Vol. Ill] The Criminal Law Journal Reports. 46&

EMPEROR V. RAMA8AWMY RAJU.

order requiring the accused to give security for keeping the peace, and the
bonds if already executed will be cancelled.

Except as above, we affirm the convictions and sentences.



(I. L. R., 29 Mail. 192.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS.

Dec. 11 [(CRIMINAL APPEAL No. 298 of 1905.] 1905.

^ Present : — Mr. Justice Boddam and Mr. Justice Moore.

EMPEROR V, RAMASAWMY RAJU.

Madm9 Difftrirt Police Act (XXIV of 1859), #. 44 ^Police conntahle lUft retnrmmftoduiy
aft fir expiry of lea re guilty of offence nnd^.

A police constable, who, having obtained casual leave, does not retuni to dutj o» th«
expiry of such leave and stays away without obtaining fresh leave, is guilty under seclioti U
of Act XXIV of 1859 of the offence of ' ceasing to perform the duties of his office wkhoiit
leave/

The facts necessary for this report are set out in the judgment.
The Public Prosecutor (Mr. Powell) for appellant.

Judgment, — We think the order of acquittal in this case must be set
aside.

The accused, a police constable, was charged under section 44 of Act
XXIV of 1859 with " ceasing to perform the duties of his office without
leave." It appears that he applied for leave which was refused. He
then obtained three days' casual leave, and whilst on such leave again
applied for long leave which was again refused. He did not however
return to duty at the expiry of his casual leave but stayed away without
leave. Having stayed away from duty for over one month sanction was
granted for his prosecution under the above section, and the Stationary
Sub-Magistrate of Madura Town tried, convicted, and sentenced him to a
fine of Rs. 12 or in default one week's simple imprisonment. On appeal
the Sub-Divisional First-class Magistrate set aside the conviction and
acquitted him, holding that the facts proved did not constitute the oflFe»cc
of " ceasing to perform the duties of his office without leave " inasmuch
as he was on casual leave and merely overstayed his leave.

We think that is wrong. We arc of opinion that, if a police constable
is granted casual leave for a limited period and does not at the end of that
period resume his duties as a police constable, he withdraws himself from
his duties and " ceases to perform the duties of his office without leave "
within the meaning of the section.



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464 The Criminal Law Journal Reports. [Vol. Ill

EMPEROR V. RAMA8AWMY RAJU.

The intention of the section is to render police constables liable to
punishment for such neglect or breaches of duty as are not punishable
under section 10 of the Act such as desertion : prima fucie^ a constable
absent without leave is guilty of " ceasing to perform his duty," The fact
that he has been permitted to be absent on casual leave for a time immedi-
ately anterior to his absenting himself from duty can make no difference
in his offence. At the expiry of his casual leave he should, presumably,
he on duty and his own omission to return to duty cannot make his con-
duct less an offence than if he had returned to duty and then ceased to
perform his duty.

We therefore set aside the acquittal of the First-class Sub-Divisional
Magistrate and restore and confirm the conviction and sentence of the
Stationary Subordinate Magistrate.



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Vol. III^ The Criminal Law Journal Report '*66

JOSEPH ISAAC JOSEPH HYAM >. THE CALCUTTA COfePORATION.

(3 C. L.J.,571.)

IN THE HIQH COURl: OF JUDICATURE AT CALCUTTA.

April 21 . [CRIMINAL REVISION No. 27C of 1906.] 1906.

Present :— -Mr. Justice Mitra and Mr. Justice Holtnwood.

JOSEPH ISAAC JOSEPH HYAM
Versus
''.' . THE CALCUTTA CORPORATION. -

Valcutta Mnniclital Act, III (B. C. J of 1890, sec. 449'-ScheduU XVII, RuU IT.-^De^
molitim of building* ouUide MHctiowd plan and existing for a long time, illegal.

What a Magistrate is empowered to direct to be demolished under section 449 of the
Calcutta. Municipal Act, is work which forms part of the plan sanctioned, and which contxa-
ven€8 some provision of the Act or of the bye-laws in force with reference to the erection of
buildings, and not buildings outside such sanctioned plan and existing for a long time.

The facts appear sufficiently from the judgment*
Mr. Caspersz and Babu Proms Cliandra Aiitter for the Petitioner.
Mr. B. C. Mitter and Mr. G. Sircar (for Babu Dwarka Nath Chak^
ravarti) and Babu Peary Mohun Banerji for the Opposite Party,

The judgment of the Court was delivered by

Alitra^ J. — ^This is a Rule calling upon the Municipal Magistrate of
Calcutta to show cause why his order, dated the 23rd February 1906,
directing the dcinolition of the existing godown belonging to the petitioner
Vrithin two months from the date of the order, should not be set aside*

There are a number of grounds taken in the petition presented to this
Court, but it is not necessary for us to deal with tiiem except the fourth
ground, namely, that the order of demolition is not warranted by the pro-
visions of section 449 of Act III (B.C.) of 1899.

The godown which the petitioner has been directed to demolish by
the order of the 23rd February has been in existence admittedly for a
long time. It is not covered by the plan which was sanctioned by the
Corporation in the year 1902. Section 449 (1) directs that on the appli-
cation by the General Committee of the Corporation, the Magistrate may
make an order directing that the work done or so much of the work as
has been unlawfully executed, be demolished by the owner of the building,
or altered by him to the satisfaction of the Committee as the case may
require, or direct that the work done, or so much of it as has been unlaw-
fully done, be demolished or altered by the Chairman at the expense of
the owner of the building.

The work, according to the Act, must be done in accordance with the
plan sanctioned and according to the bye-laws in force with reference to
tlie erection of buildings, and the demolition that may be directed under



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46S Thb Crdokal Law Jourkal Repobts. [Vol. HI

KJUUMCDDI FAKIR r. KADfUDDI KATIRAJ.

section 449 of the Act, must have reference to snch woik md not build-
ingt onttide the MUictioned pkn ind existing for a long time. In the
present esse the godown which has been directed to be demolished was
never a part of the plan sanctioned by the Corporation. It was, as we haTS
said, in existence for very many years. The building, no donbt according;
to the finding of the Magistrate, was erected in contravention of the plan
sanctioned by the Corporation, in as much as it did not leave a space
open as required by Hale 17 of schednle XVII of the bye-laws, if
that Kale applies to the present case. Bat aathority is not given bj
section 449 of the Act to the Magistrate to direct the demolition
of the whole or a part of a building which has been in existence for years
and was in existence before the sanction was given. The section refers
only ta buildings erected in contravention of the plan submitted and
sanctiooiM<li;y the Corporation.

We, therefore, set aside the order of the Magistrate, it being q>en to
the Corporation to proceed, if they are so advised, in any other form.

We express no opinion on any of the other points argued before us.

Hule made abioluie*



(3 C. L. J., 673.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

Dec. 14. [CRIMINAL REVISION No. 965 of 1904.] 1904,

Present : — Mr. Justice Geidt and Mr. Justice Mookerjee.

KARIMUDDI FAKIR and another

Versus

NAIMUDDI KAVIRAJ and another.

Criminal Prootdnre Code (Act V of 1898), $ec4, 146. 517yS20^Cancelh(ioHofproemlinf^
untUr $oe, 145, Criminal Proe^ure Code—oriw allowing one party to rtap iko crof^ xllogmL

When a Magistrate canceln proceedings under section 145, Criminal Procedure Ckide, on
the ground that there is no likelihood oC a breach of the peace, he has no jurisdiction to allow
one of the parties to reap the crops to the exclusion of the other.

Such an orrler. if passed under section 51 7, Criminal Procedure Code, is fit to be set aside
under section 520, Criminal Procedure Code.

Application by the Second party in a proceeding under section 145,
Criminal Procedure Code, for setting aside an order passed by the District
Magistrate of Faridpur, cancelling the proceedings and directing the
attachment to be withdrawn and allowing the First party to reap the
crops.

On the report of the Head Constable of Shibchar Police Station, the
Sub-divisional Officer of Madaripur drew up proceedings under section



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ToL ni] The Criminal Law Joubnal Reportsl 4fr7

KABIMUDDI FAKIR V. NAIMUDDI KAVIRAJ.

145, Criminal Procedure Code, between the khas mehal tenants as the
First Party and the petitioners as the Second Party. The First Party
thereupon applied to the District Magistrate of Faridpur for cancelling
the proceedings. The District Magistrate in his capacity as Collector
called for a report from the khas mehal Deputy Collector and on receiving
such report passed the following order : — " Proceedings cancelled as the
lands are khas mehal and there is no likelihood of any breach of the
peace. The First Party to reap the crops and the attachment is with-
drawn." *'^^'

The Second Party thereupon moved the High Court and obtained a
Rule to show cause why the latter nortiem of the said order should not
be set aside.

Mr. S. P. SinJia and Babu Surendra J^atfi GuJia for the Pe^^ioners.
Babu Upendra Lai Roy for the Opposite Party* -'

Their Lordships' judgment was delivered by *

Geidt^ J. — It appears that proceedings were drawn under section 145,
Code of Criminal Procedure, on the ground that there was a dispute re-
lating to land likely to cause a breach of the peace. Subsequently on a
report made by the Deputy Magistrate, the District Magistrate passed
this order: — " Proceedings cancelled as the lands are khas, mehal and
there is no likelihood of any breach of the peace. The Eirst party to reap
the crops and the attachment is withdrawn."

Now, it appears to us that if there was no likelihood of a breach o£
the peace, the Magistrate should have cancelled the proceedings without
making any order at all as to tife reaping of the crops. If his order is to
be regarded as under section 145, it is clearly without any jurisdiction in
the absence of any likelihood of a breach of the peace ; but the learned
pleader who appears for the Opposite party contends that the order, the
first party is to reap the crops, is an order made not under section 145
but section 517. If that be so, we have jurisdiction to interfere under
section 520 of the same Cede and we think, for the reasons we have
already given, that if the Magistrate found that there was no likelihood
of a breach of the peace, he should have abstained from making any order
which virtually gave possession of the subject-matter of what had been in
dispute, to one party or the other.

We, therefore, direct that the part of his order directing .that tho
First party should reap the crops, be cancelled. If the Magistrate finds
that any dispute likely to cause a breach of the peace still exists^ it is
competent to him to take proceedings under the Code, to prevent such
breach of the peace.

RuU made absolute.



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^68 Itut Criminal Law Journal Reports! [Vol. Ill

8URESH CHANDRA BA8U r. EMPEROR.

(3 C.L. jr., 575.)

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA.

ifov. 30 [CRIMINAL REVISION No. 1106 of 1904.] 1904

Present : — Mr. Justice (^eidt and Mr. Justice Modeerjee.

, SURESH CHANDRA BASU and another r. EMPEROR.

Criminal Ptveed*it^ (hde^X Ad V of 189S), see, 122—RtfM4al to accept snretiet ujton
inralld and nnreasonable grounds^ Acting an a police report and not on enquiry hg the Magis-
trate himself y improper.

Where a Magistrate refused to accept sureties tendered by a person bound down under
taction 110, Criminal Procedure Code, upcm the following grounds, (i) that three out of four
sureties are not resiilents of the village where the defendants live, (ii) that none of them have
sufficient . movable property,. (iii) that all of them are reported to be of bad character and (iv)
th4t three of them are relations of a person who was suspected of receiving stolen property.

Held, that the first, 8econ<1 and fourth grounds are not sufficient : that the third ground
may be sufficient, but the Magistrate in determining that question cannot act on a repc^
Bulmiitted by the police, but must hold an enquiiy in respect thereto.

The facts of the case appear sufficiently from the judgment.

Mr. P. M. Guha for the Petitioner,

Their Lordships' judgment was delivered by

Mookerjee^ J. — It appears that on the issue of the Rule, the Magistrate
has rejected the offers of the persons who tendered themselves as sureties,
on four grounds ; first, that three out of four sureties are not residents of
the village where the defendants live ; second, that none of them have
sufficient nu)vable property, third, that all of them are reported to be of
bad character and fourth, that three of them ^re related to one Chundra
Nath Sen who was suspected of receiving property stolen by the defen*
dants.

In our opinion, the first, second and fourth of these grounds are not
sufficient for rejecting the persons who tendered themselves as sureties.
No doubt, the third ground would be sufficient, but the Magistrate has
acted on a report submitted by the Police and not on an enquiry held by
himself.

We direct, therefore, that the Magistrate do hold an enquiry in respect
of the sureties and that unless he finds them to be of bad character, he
accept them as sureties for the persons who have been ordered to be bound
over.

As regards the first ground taken by the Magistrate, it appears from
Ihe report that the men are of position and that they reside within a
reasonable distance of the persons ordered to be bound over.

« Rule miule absohtte.



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?ol III] The Criminal Law Jourkal Reports; ^69

SRIBO KOERI r. EMPEROR.

(10 C. W. N., 725.)
IS THE HIGH COUBT OF JUDICATURE AT CALCUTTA.
June 6 [CRIMINAL APPEAL No. 392 of 1905.] 1906.

Present : — Mr. Justice Mookerjee and Mr. Justice Caspersz. .

SHIBO KOERI,— Appellant, '

VetiUi ;

EMPEROR,— Respondent.

Murder-'InaaHUy, iignt and indicia of—Mftlanokolle homicidal muHia—lHcapahiiitjf ^
hMowing illofal mUwre ofaet^Indian PbmI Chde (Act XLVofSSOO), see*. 8^, 302.

The prifloneF who was charged with committing murder was a joong man ot weak inteU
lect, and the motiye adtoating the offence was trivial and inadequate. As soon as be had
killed his uncle by hacking him on the head and neck, with a sword, the prisoner, rushed
about, brandishing his weapon and shouting "Victory to Kali." He attempted to strike



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 79 of 91)