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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rather than by results. We have to see the measure -of accused's fraudu-
lent intention, and not the measure of its success. Neither can I accept
the argument that deceit must be practised or the intention aimed at any
particular person, since section 496, 1. P. C, does not state or imply any
such limitation. I incline, therefore, to .the opinion that accused No. 1
has committed an ofiEence under section 496, 1. P. C,

With regard to accused No. 3, however, it must be proved that he
joined in a conspiracy with accused No. 1, in other words that he was
privy to the fraudulent intention. It is insufficient to say that he solem-
nized an unlawful marriage at his peril. He would in such case be
morally culpable ; but unless it is established that he shared the fraudu-
lent intention of accused No. 1, he does not appear to be criminally liable
under the I. P. C. Had there been evidence to prove that Dudhi objected
or resisted in his presence, and that he nevertheless went through his
ceremoney, then the aspect of his conduct might be different. It is
difficult, to make any presumption against accused No. 3. People may
go through sham marriages if they choose, without being liable under the
Indian Penal Code, unless fraudulent intention is proved, and I think it
quite probable that accused No. 3 did not realise the deceitful intentions
of accused No. 1 and was not a party to them. There was apparently no
preconcerted plan between accused Nos. 1 and 3 : it would seem that
accused No. 1 made sudden preparations and rushed the marriage through^
taking advantage of an unexpected and undesigned opportunity*



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494 .The CIlImikxl Law JouBKia Repoeib. [Vol. Ill

. BMPBROR V, H. C. BAYNE.

If the above be a correct view, accused No# 1 alone would be guilty
of committing an oflPence under section 496, 1. P. C, and looking to the
fact of the long standing betrothal, to the conduct of Dudhi, and to all
the circumstances of this peculiar case, I consider that accused No. I's
offence is somewhat less repugnant to honour and morals than would at
fir^t sight appear,

(Sd.) H. D. RendaU,
t September 5th, 1905, President*

Finding.

trhe Court is unanimously of opinion that accused No. 1 Rugnath
Giga is not guilty of an offence under section 493, 1. P. C, and in that
respect he is acquitted, but the Court unanimously finds him guilty of an
offence punishable under section 496, I. P. C, and sentences him to
rigorous imprisonment for six (6) months.

The Court is unanimously of opinion that accused No. 2 is not guilty
of an offence under section 363, 1. P. C, and that accused No. 3 is not
guilty of offences under sections 493 and 496, 1. P. C, together with s. 109
I. P. C, with which they are respectively charged, and the Court directs
that they be acquitted and set at liberty.

(Sd.) H. D. RendaU, Judicial Assistant. (Sd.) B. G. Durkal.
(Sd.) H. B. Kotak. (Sd.) B. V. Joshi.
Rajkot, September 6th, 1905.



(8 Bom. L. R., 414.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY. '

April 11 [CRIMINAL REVISION Nos. 63 and 70 of 1906.] 1906.

Present : — Sir Lawrence Jenkins, K.C.I.E., Chief Justice, and
Mr. Justice Aston.

EMPEROR V. H. C. BAYNE.

P&nal Code (Act XLVoflSQO), sea, 31, BJd^Punlihment-'Sentenee of me day's tim^e
impriiotiment-'Itash drhing^Offence triable under Special Act—homhay Motor* Vekielee
Act (Bombay Act II of 1904) .

Per Jenkins, C, ./.—"The purpose of inflicting one day's simple i mprlsomnent is to exercise
clemency towards an accused, and so it is ordinarily passed where imprisonment is the only
punishment allowed by law, and the Caurt sees in the circumstances of the case grounds for
passing the lightest possible sentence. In practice the person on whom it is passed is not
placetl in prison, but is to all intents and purposes as free as though the sentence had not been
passed."

Per Axton, 7.—" Where there has been special legislature for a particular type of offence
the maximum punishment provided in sach special Act for that particular offence may be
accepted as an appropriate maximum."



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Vol, in]. Thb Griminal Law Journal BEPoltTSr 405^

BMPBROR iV H. C. BAYNB.

"Though the panishment for rash and negligent driving to the pnblic danger provided by
& 279 of the Indian Fenal Code is greater, the more general provisions of the Penal Code are
calculated to remind the Magistrate, when the prosecution is under that Code, and the danger
is alleged to have been caused, by rash and negligent driving, that it is not only on the part
: of the drivers of vehicles that the Penal Code enforces the^sivil duty of circumspection, from
the neglect of which the improbability of culpable negligence arises.

The aociised was charged uhcler b. 279 of the Indian P^nal Code with
rashlj and negligently driving a motor car on the Queen's Road ia tho
City of Bombay.

The Third Presidency Magistrate convicted the accused of the offence
charged and sentenced him to one day's simple imprisonment and to pay a
fine of Rs. 200 and his license as a Motor Car driver was ordered to be
suspended for the unexpired period thereof and the accused was also de-
clared disqualified to hold a license in future.

The accused applied to the High Court under it^ criminal revisional
jurisdiction : and . the Magistrate also forwarded the proceedings to the
High Court, remarking : "section 8 of Act H of 1904 requires that a period
should be mentioned and as that is not done I would request that the same
inay be orderied to be annulled."

Mr. Lowndes with Messrs. BichneU^ Merwanj and Homer ^ for the
accused.

The Hon. Mr, Raikes with Mr. E. F. NichoUon^ Public Prosecutor,
for the Crown.

Jenkins^ C. J. — ^The accused has been convicted under section 279 of
the Indian Penal Code of rashly and negligently driving a motor car on a
public road so as to endanger human life, and he has been sentenced to
suffer one day's simple imprisonment and to pay a fine of Rs. 200 or in
default to suffer 15 day's simple imprisonment, his license . also has been
suspended and he has been declared disqualified from obtaining a license
to drive a motor vehicle.

"the sentence passed by the Magistrate falls short of that which would
have entitled thie accused to appeal, and so this application is made to us
in revision.

But in an application for revision it is the ordinary rule to accept the
lower Court's findings of fact, and so* Mr. Lowndes has limited his argu-
ments to asking for a revision of the sentence' oh* the ground that the
punishment is excessive, and that this is due to the Magistrate having
allowed himself to be influenced by considerations, for which there was no
legal foundation.

The charges framed in the case are under section 279 and 336 of the
Indian P^l Code and s, 2 of the Bombay Motor-Vehicles Act, 1904*



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496 fuE CBOfnTAL Law Joitival RnoMB. [¥ot; in

PMPSBOB r. H. C. BATKE.

The last muned Act i« described ms ^im Act to regakte the use of
moior-rehicleA in the Bombft j Prendency " and the prenmbie recites tiimt
^it is expedient to regulate the use of motor-vehicles in the Bombaj Pre-
sidency" and for that reason it is expressed to be enacted as tbereia
provided.

It is not disputed that the offence with which the aecnsed b diarged
faiUs within the terms of this Act, bat the charges nnder the section of the
Penal Code were included because, we are told, that is in accordance with
the course ordinarily adopted in these cases. The legal result is that a
heavier punishment can be inflicted than if fhe charge were only under the
Motor-Vehicle Act. The punishment of one day*s siasple imprisonment
is a sentence that is well known. Its purpose is to exercise clemency to- _^

wards an accused, and so it is ordinarily passed where imprisonment is the
only punishment- allowed by law, and the Court sees in the circumstances
of the case grounds for passing the lightest possible sentence. In practice
the person on whom it is passed is not placed in prison, but is to all intents
and purposes as free as though the sentence had not been passed.

Here no such necessity for this sentence arose. It was not passed to
secure compliance with the law, for another punishment is sanctioned and
has been inflicted. It cannot be attributed to clemency and its conse-
quence is to pbce on the accused the stigma thai attaches to sentence of
imprisonment without imposing the penalty which is the purpose of I

imprisonment.

Thb is not the first occasion on which the High Court has had to
comment on this form of punishment, when wrested from its proper pur*
pose, and the Advocate General has most fairly stated before us that he
finds a difficulty in defending this part of the sentence in the circumstances
of the case.

We, therefore, direct that this part of the sentence be. set aside.

Next I come to the fine. Though it is urged that this is double the
maximum prescribed by the Motor-Vehicle Act, it still is within the limits
permitted by section 279 of the Indian Penal Code and I cannot say it is
^ severe as to call for our interference- in revision. So much for tiie i

jpunishments under the Penal Code.

I will now deal with those expressed to be passed under the Bombay
Motor- Vehicle Act.

The Magistrate has purported to incapacitate the accused from ever
driving a Motor- Vehicle in Bombay during the rest of his life, and he
appears to rest this part of his sentence on what is stated in the passage
of his judgment, in which he says : " It fa a wonder that this is the first



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Vol. Ill] The Obiminal Law Journal Rkpohts. 497

EMPEROR r. H. C. BAYNE.

appearance of the accused in Court. It is impossible to ccnceivo ihnt this
was the first occasion on which the accused was unfortunate enough to
drive sd rashly and negligently/'

It is admitted that there is nothing on the record to justify this re-
mark ; there is no legal evidence of any previous conviction or charge, or
even of previous rash or negligent driving by the accused and it is on
legal evidence alone that a Court of law can act. Therefore it is that Mr.
Lowndes has taken strong excepticn to this expression of opinion and
protested against the Magistrate's making it the basis on which he has
determined the character of the punishment to be inflicted. At the same
lime wo are told that of the accused's conduct immediately after the
offence no complaint is made ; that he made no attempt to escape detection
by driving away from the scene, but on the contrary had the injured per-
son taken to the hospital and immediately reported the matter to the
police.

But so far as the sentence involves perpetual disqualification these
matters need not be considered, for this part of the sentence is illegal.
This is admitted by the prosecution, and the Magistrate himself has very
properly made a representation to the High Court to that etfect and has
requested an annulment of the order.

The sentence of disqualification after the period of suspension must
be set aside.

It only remains for me to consider the order for suspension of the
accused's license. This license was taken out last January, so the Magis-
trate's order of suspension would prevent the accused from following his
present calling for about nine months, and as a reason for moderating this
^ntence Mr. Lowndes has told us that the accused has already lost
through this suspension an opportunity of lucrative employment, and if
the sentence be upheld that he will lose his present place. On this point,
as throughout the argument, the prosecution has been conducted before us
with great fairness and moderation. It is stated that the Police did not
press for a severe sentence before the Magistrate, nor is it now asked that
the suspension should bo continued for the whole period prescribed by the
Magistrate's order. At the same time it is contended that there should be
some suspension of the license. This I think is reasonable, for where
there has been rash and negligent driving on a public road endangering
liunian life, and on the Magistrate's finding we must assume the accused
to be guilty of that offence — some suspension of license is an appropriate
penalty. Having regard to all the circumstances, I think the require-
ments of the case will be met if we reduce the period of suspension to



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498 The Criminal Law Journal Reports, [VoL III

EMPEROR r. H. C. BAYNK.

three ciilendar months from the 20th of March, 1906, the date of the
Magistrate's order.

Aston, J. — Mr. Lowndes, whD appeared for the accused, has not con-
tended tliat tlio facts taken to be proved by the Third Presidency Magis-
trate, are insufficient to establish an offence of negligently driving a
motor-vehicle at a speed or in a manner which, having regard to all the
circumstances of the case, was dangerous to the public, but his main argu-
ment as to this part of the case was that taking all the facts to be as
decided by the Magistrate, a conviction under sec. 2 of the Bombaj
Motor- Vehicles Act (Bombay Act II of 1904) under which, as well as
under sec. 279 of the Indian Penal (Jode, the accused was prosecuted,
would be more appropriate than a conviction under the Penal Code.

Our attention was drawn to the observations near the end of Mr.
Karsondas' judgment and we were asked to infer from these observatioDs,
for which the record affords no support, that by permitting himself to dis-
play this hostile attitude to the accused, the Magistrate has given cause
for consideration whether in resorting to the Penal Code in addition to the
Motor-Vehicles' Act in order to inflict the larger fine of Rs. 200 (the
maximum unappealable sentence of fine) and to add a sentence of im-
jirisonment the Magistrate was influenced by an unjudicial antipathy
rather than by a calm and impartial view of the merits of the case. The
impropriety of the Magistrate's concluding remarks is obvious.

There is moreover force, I think, in the contention that where there
has been special legislature for a particular type of offence the maximum
l)unishment provided in such special Act for that particular offence may
be accepted as an appropriate maximum.

On the other hand though the punishment, for rash or negligent drivini;
to the public danger provided by s. 272 of the Indian Penal Code is greater,
the inore general provisions of the Penal Code are calculated to remind a
Magistrate, wlien the prosecution is under that Code, and the danger is
alleged to have been caused by rash or negligent driving, that it is net
only on the part of the drivers of vehicles that the Penal CH)de enforces
the civil duty of circumspection from the neglect of wliich the improbabili-
ty of culpable neglifeencici arises. . Seo ^^idamari^s case (1) and Empress
\. Ketahili Mmulal{2\ *' negligence " implying an omission to do some-
thing a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of something
which a i)rudent and reasonable man would not do. See Blffth v. Bimiing^
h'lm Watenvork's Co. Qi). Section 283, for instance, enacts thai whoever
, (1) (J.S72) 7 M. H. ('. R 11!). (2) (1879) I. L. 11. 4. Cal. 7CK

(3)(I8ofO 11 Ex. 78*.



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Vol. Ill] The Criminal Law Journal Reports* 499

EMPEROR V. NENSI HANSRAJ.

•causes danger, obstruction or injury to any person in any public way by
doing any act, shall be punished with fine, and section 336, which has no
special reference to drivers, provides that whoever does any act so rashly
-or negligently as to endanger human life or the personal safety of others
shall be punished with imprisonment or fine. So that a driver prosecuted
under both a special Act and the Penal Code cannot well complain that he
has been convicted under the latter which takes so fully into contempla^
tion that a danger on a public way may be created by an obstructive rash
or negligent act of some person not driving a vehicle, without any want
-of due care and caution on the part of any driver of a vehicle.

Affain the learned Advocate General was instructed to state that the
prosecution was instituted by the Police under the Penal Code as well as
under the Bombay Motor- Vehicles Act (II of 1904) with a purpose and not
from excessive caution.

These considerations point to the conclusion that there is not sufficient
jrround for altering the conviction to one under s. 2 of the Bombay Motor
Vehicles Act.

On the remaining points in the case I have nothing to add to tlie
remarks of the learned Chief Justice except to express my entire concur-
rence with the judgment just delivered and the orders proposed.



(8 Bom. L. i?., 420.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

April 17 [(CRIMINAL REVISION No. 85 of 190(5.] 1906.

Present.— ^ir I^awrence Jenkins, K.C.I.E., Chief Justice and
Mr. Justice Aston.

EMPEROR V. NENSI HANSRAJ.

CrlmiHal Ptveedut-e Code (Act Vo/lSOSJ, sec, 407— Bail— Gi-uhI of had in mm-hailahU
4\jff>Hccs — Practice.

The rule in res^xict of non-bailable offences is that bail is not to be token except in special
-circnmstenccs.

Nensi Hansraj and another were charged with offences under s. 82
^»f the Indian Registration Act, 1877, and ss. 4(57 and 109 of tlie Indian
Penal Code, before N. W. Kemp, Esq., Chief Presidency Magistrate of
Bombay, on the 12th April, 1900.

On the same day, the accused applied through their pleader to tlm
Magistrate to release them on bail pending the trial : this the Magistrate
declined to do, saying : '"As it appoars to me from the facts stated that



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500 The Criminal Law Journal Reports. [Vol. Ill

EMPEROR r. NENSI HANSRAJ.

iliere are roa^nable grounds for supposing both accused have committed
the offence and as the terras of s. (19) (1) are imperative on me I refuse
Imii;'

The accused thereupon applied to the High Court.

Mr. nustom I). ^\ ^a^Ua, with Mr. S. G. Velinlar, for the
applicants.

Bao Bahadur Vasudeo J. Kirtikar, Government Pleader, with Mr.
j:, F. jSlcliolson, Public Prosecutor, for the Crown.

Per Cimam. — The applicants are persons accused of a non-bailable
ofiFence before the Chief Presidency Magistrate to whom an application
was made that they might be released on bail.

As however there appeared to the Magistrate to be reasonable grounds
for believing that the applicants were guilty of the oflEence of which they
were accused, he refused the application in conformity with the provisions
of section 497, sub-section (i) of the Code of Criminal Procedure.

So it is that a similar application is made to this Court.

It ha« been laid down by a full Bench of the Madras High Court in
Kamaraja Pandia Saick (1) that the rule in respect of non-bailable oflEences
is that bail is not to be taken except in special circumstances ; and so the
application being opposed, the Court has to see in this case whether at this
stage of the proceeding there are these special circumstances.

It appears to us that tlicre are not, and that at this stage no sufiBcient
case has been made that would justify us in acceding to the application,
which must, therefore, be refused.

(1) Weir, 3r(I Ean.,p. lllla.



Jiif



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GENERAL INDEX.



Abetment, n^v KxcIsc A<-t, s. vj ... ... ... ... ... 135

» p. ('., H. 30-^ ... ... ... ... ... 317

o///n offence— what h nerCMary to comditiiie — huttiijation orJoiHtMff in

ronyfiraci/ or intefdional aidinj on the part of abettor — hUefUional aiding constitHtcd

hij »jmp net or ilUgal omixsion on the part of the abettor
To const itnt3ab;itnient of an offence there must have been instigation or joining in
a conspiracy, or intentional aiding on the part of the abettor.

The facts provetl were as follows : Kalathan was sitting with others locking at a
pir\ The appellant, who had been se^Mi earlier on the night in C.'hin Aung GyiV com-
I):iny, approached the spot where Kalathan sat, closely followed by Chin Aung (>yi. Tlie
accuH'.Ml asked in an ordinary voice and manner where Kalathan was, whereupon ('hin
Aung (lyi got behind Kalathan and, saying " ffere," he drove a spL>ar into Kalathan's
liack killing him on the spot. The men nearest him ran away, with the exception of
Tun Kaing. This man said something about a man having baen stabbed, whereujMjn
the appellant and C'hin Aung(ryi each seized one of his han<ls and questione*! him as in
wheth?r he hatl seen anything. They released him on being tohl to do so by Maung Pru.
A relation of the deceased saw that lat^r on he passe^l the ac^jused an(l I'hin Aung (lyi
at some distancp from the spot where the munler was committal and he overheard the
app?llant ask C'hin Aung Gyi why he ha*! ovenlone it, to which Chin Aung (Jyi replied
that if he had not finished Kalathan the latter would have retaliat^tl.

II 'Id t'liat, the fa^ts did not disclose any case of instigation to munler on the |)art
of the appellant, nor did they disclose any act or illegal omission on his part, which
could hi considered intentional ai ling by him in Chin Aung Gyi's aet which constituted
the murder.

Jfdd al-w that, there were not sufficient materials on which to base a conclusion
that the appellant engaged with Cain Aung Oyi in a conspiracy to injure Kalathan.

Tha La Auno r. Emp£bor ... ... ... ... ... 437

Accomplice— AV/W/»«r^ of— Corroboration, of what kind required. See Eviilauim
Act, s. i:rj ... ... ... ... ... ... ... 33

Accused person ~-Vtrf<>a to accuml person neee^tnarij before order in his fataur
van be »et attide.

An order by a M^i^istrate directing payment of compensation to the accuse<l ought
not to be set asi le on appeal without notice to the accused. It will also be safer to give
notice to t'.ie officer app lintid by the Loeal (ijvernmeut referred to in section 422 of the
Co le of Criminal Procedure.

Empebob r. Palaniappavelan ... ... ... ... ... 451*

Act XIII of 1859. See Workman's Bi-eacl» of Contract Act.

XIV of 1859. .SV Madras District Police Act.

XLV of 1860. See Penal Code.

V of 1861. Sje Bengal Police Act.

Ill of 1867. S-e Gambling Act.

Vll of 1867, (B)mbay). S^e Vilhvge Police Act.

Ill of 1869. S^e Ueveuue Summonses Act.

VI of 1870. S^e Village Chaukidari Act.

Vll of 1870. S'e Court Fees Act.



■ I of 1871. S.v, Cattle Trespass Act.

XXVI 1 of 1871, as amended by II of 1897. Sec Criminal Tribes Act.

I of 1872. See Evidence Act.

X of 1873. S'e Oaths Act.

XI of 1878. Sfe Arms Act.

IV of 1881. Sie District Municipalities Act.

~— 11 of 1886. See IncomQ Tax Act,



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Tagc



( H )

Act IV of 1SS7. ( hom>>ay). Sv Bombay Prcventiou of (iambling Act.

Ill of 1« S <, (B )mbay). Nr Bombij Municipal Act.

HI of IH-O, B. C. «S'r B3n;?dl Municipal A ;t.

Ill of 188t». *Sv lyjwer Burma Village Act.

IV of 18<ty. Nr Mirohamlise Marks Act.

XI of \H{)\ *S'v Prevention of Cruelty to AniiuaU Act.

VII of 1891. S'e As8\m Korent Kegulatton.

XX of 1891. Set» Punjab Municii)al Act.

XII of 18%. A'v ExciH^ Act.

X of 1807. Nr (ieneral ClaustM Act.

V of 1898. Nr Criminal Pro-wlure Co le.

- — I of 1899. N'^ Burmi (tambling Act.
Ill of 1899. Nr Calcutta Municipal Act.

I of I9'Ji». S>e N. W. P. and Oudh Municipalities Act.

VI of 19(H). Xv Lower Burma Courts Act.

II of 1901.. S'f Bombay Motor VebicletJ Act.

Act No. XVII of 1878 [Northern India Ferric-* Act], s^. 13 ami 2(3-(T,irernmfHt
XttificifioH Xt. JJT, ddtr'd /A- 14f/i t>bruiry ISS^j—Ferrtf -Limits of public ferry,

A n'>tiricati.>n of (iove. nni'^nt publisbe I umler the Northern India Ferries Act, 1878,
laid down th? limit* of varitHis public ferries in one column and in another column the
ilistances within wliicli a privat-j ferry was not allowe<l to ply for hire. In the case of
snn? ferric* v(;ry wiih iimitK were as-iigne I, and the pr*)hibito.l distance was defined oh
th ; limits given in th^ column laying down the limits of the ferry. In other cases,
wli'Tc the limits of th • ferry w.^e not so wide, tha prohibited distance was described
witlj refcroncx; to s.^ction 13 of the Act as two miles.

Jl'^d. that in the ft)rm?r cas^ th-^ very wide limits given were deemc.1 suffieient by
the Lo -al (t.)vernm ?nt to guanl the interests of the les-^ie of the ferry, and conseiuently
the prohibited area was reduced to the spaee containe I within these limits.

Empebob r. Baban ... ... ... ... ... ••. 50

Affidavits '"'"•« ^y an accn$ed~Fahe utat^mektt in. See Cr. P. C. 8. 476 ... 225

: fals-^ allegation in. Sv (>. P. C., s. 476 ... ... ... 32t>



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 83 of 91)