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

. (page 9 of 91)
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 9 of 91)
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" Next to self-possession and self-control, the working quality which
wiH fttand you most in stead, is clearness of mind and speech. Whether
the stream be doep or shallow, it matters little what golden stands lie in
the bed, if men cannot be made to see them. Clearness of statement can
hardly^ be without clearness and directness of thought. This last, perhaps,
is commonly a gift to nature, but there are few good minds in which dis-
oipline and use will not breed a habit 6f it. It is not given, as we know,
to all men, to be eloquent, or great, or very wise, but he whose mind
goes straight to its own purposes and conclusions, and can light the minds
of other men along its processes as with the light of perfect day, has, as
an advocate, as little reason as the best to rail at fortune."

And here another word of caution. Do not, regardless of intrinsic
merit and for the mere sake of appearing in Court, take every case that is
offered to you, for there will be many which clients know that older law-
yers would not accept, . but ma^ster the facts and the law of every suit in
which you are actually engaged as counsel, whether for the plaintiff or
defendant, and above all, try your own cases, and if necessary, without
reward, the cases of any honourable lawyer, who will permit you. Self-
reliance is the keynote to your success^ and, as Thackeray observes, in every
great crisis of life we must necessarily stand alorie. Adopt the maxim of
Moltke : " First reflect, then dare " — and while you should not invite
defeat, do not fear it, for defeat is the surest means of instruction, and
with honour maintained, your very opponents will say gloria victis.

Strengthen memory by fixing in your minds both dales and references
to ftuthorities, and learn to think and to think independently, and refrain



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62 The Criminal Law Journal. [Vol. Ill

from consulting your seniors as to what the law is until you have first
thoroughly investigated for yourselvef*. On legal fact gleaned by the
attrition of independent research is worth as a contribution to your de-
velopment, a dozen which another man may casually tell you. Perform
promptly and vigorously the duty which is obvious and immediate, and
clients and eucce=^s will a>»suredly come, but do not take short or narrow
views of life, and, for the ^ke of present advantage, sacrifice a greater
future. Do not confound the ephemeral with that which is eternal, the
local with that which is univer«(il, the fortuitous with that which is neces-
sary and immutable. And dO not permit yourselves to regard the purely
provincial and archaic as invariably good because it is yours. In short,
be not like Sordello, who from his breezy parapet might look toward
Mantua, but could not pei'ceive the broader life across the near horizon :

" Beyond the glades
On the fir forest's border and the rim
Of the low range of mountains was for him
No other world." ,

It has been solemnly adjudicated that your first duty is to the ad-
ministration of justice, and you are undoubtedly priests of Ae temple, but
your obligation to the court will permit you to eerve your own clients
with devotion. You mu»t be a part, too, of the sentiment, practical life of
the community, in touch with its pulsation and progress, for with all your
activity, you will need friends within and without the professional circle,
and to gain friends, be friendly. You will according to the legal maxim
bo known by your associates. If , Schiller, nobest of German poets, is to
be believed, industry and friendship are tkeonly ideals which will assured-
ly stand by you until the Blind Fury with the abhorred shears shall slit
the thin-spun life.^77i^ Laic Studenti Helper.



BOOK RE^IE^VNra

The Law of Receivers. By William A. Alderson,

Published by Messrs. Baker, A^oorhis and Company, New York.
New Edition, 1905, xxvii and 956 pp. Rs. 24.

" Beach on Receivers "is a well-known American work on the sub-
ject. Mr. Alderson as editor of Mr. Beach's book, published in 1897,
had fully established that in revising and rewriting it, he had so thoroughly
appropriated the subject that, but for his own personal reasons, the book
should have been justly published under the title of ''Alderson on Receivers,"
instead of under the title of " Beach on Receivers, Alderson's edition,"



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Vol. Ill] The Criminal Law Journal. C3

The latter, which was practically a now work from the pen of Mr. Alderson,
has been entirely re-written again and appears now under the title of
*' Alderson on Receivers." This much hy way of history of the prepara-
tion of the work. Now to its contents and merits.

This practical treatise contains the Law of Receivers as ai)plicable

to Individuals, Partnerships and Corporations, idth an ej'temled

consideration of Heceivers of Rail icat/s and in jtroeeedinrfs in Bankruptcy,
It is an exhaustive work, full with up-to-date (January, IDOo) citations
from all American Jurisdictions. The principles and rules of law govern-
ing the eligibility, appointment, rights and powers, and duties and liabilities
of receivers are stated and discussed tersely and accurately. The whole
work is divided into XXVI long Chapters, the last of which, for easy
comprehension by the inexperienced practitioner, gives a thoughtful and
succinct summary of the salient principles and rules of practice applicable
to receivers and receivership proceedings.

In India — a land of Acts and Codes — the provisions of the law
relating to receivers are scattered over two enactments. The Specific
Relief Act (I of 1877), sections 5, G, 7 and U, and the Civil Procedure
Code (Act XIV of 1882), sections 503 to 505 cont^iin the whole current
statutory law of the land. These sections are hopelessly meagre, and also
the case-law on them is not very rich. The Indian Courts have often
to resort to the English works by Bennet and Kerr, but the American
works are seldom called to aid for the simple reason that they are not
generally available in India and the Indian Practitioner is ignorant of their
genuine high worth. In 1903 Mr. WoodrofFe, now a Judge of the High
(^ourt of Judicature at (*alcutta, published a small book of 300 pages
under the title of " The Law Relating to Receivers in British India."
He collected therein the rules and principles very ably and carefully, but
the work is an elementary one and does not go so far as the comprehensive
treatise of Mr. Alderson, in which the Indian Practitioner and Judge will
find sound learning and wide information.



Daniel on Negotiable Instruments. Published

by the '' Baker and Yoorhis Company/' New York. Fifth Edi-
tion, 1903. f Wo Vok. More than 2,000 pages. Rs. 48.

Many a reader, ignorant of the incomparable worth of this prodi|riou.s
^'ork, published more than three years ago will read the present review
8^ very late. But the exceptionally high place Mr. Daniel's work holds
^^ the Commercial Law, coupled with the fact that its next edition may
J^ot see the light before another ten years, is a sufficient justification for
J^oticing it so late.



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€4 .The Cbimtnal Law Journal. [y-oiHI

Published originally in 187G, Mr. Dani^rs work has always found
favour and frequent quotation in the highest tribunals of the United States
\and British Empire. "It seeks to l)e a true reflex of the law of the subject
as understood and applied throughout the domains of the English-sj>eaking
people." For more than a quarter of a centur}' it has ever}'where com-
manded the highest admiration of the profession and judiciary. " As
commerce moves to greater conquests, the negotiable instrument will
maintain itself in the forefront, as the harbinger of uniform law. This
work was the first to treat the subject in its ample sco|>e/' and " has up-
held itself in the good opinion of the legal profession and of enlightened
laymen."

In India we have a small self-sufficient Negotiable Instruments Act
of li^D dry sections. Its provisions are both meagre and defective. They
are difficult of comprehension and application without the aid of scientific
treatises on the subject written by the exi^rienced European and American
experts in this most important branch of the Mercantile Law. An Act
or Code is a. good thing so far as it aims at securing uniformity and
certainty. But compared with a scientific work it is a production of art.
Its juristic worth is generally of the smallest degree. Its bare sections
are so many bones without flesh. Mr. Daniel treats of the subject from
theoretical as well practical stand-points. " Commerce," he very aptly
says in the preface of the 5th edition, " is the pioneer in the assimilation
of peoples and laws. The Negotiable Instrument is the leader of the
pioneer corps ; and it is quite probable that it will produce the first body
of homogeneous law that is evolved in the realms of civilization.^' It is
these sublime principles that the author has had in view in preparing the
first and subsequent four editions of his marvellous work. We know of
no other extant work which discusses the law of negotiable instrument
so thoroughly and exhaustively. It is but just to remark that it is as good
a work for the present as for the future. The princi])les expounded there-
in have already been given the shapes of statutes by more than a score of
the American States. And it would not be an extravagant prediction that
by and by it will achieve the same triumph in the remaining States as
well as abroad. A work ,with such a brilliant j>ast needs no praise
from us.



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THE

Criminal Lau) Journal



OF



INDIA.
JOURNAL



No. 5] MARCH 15, 1906, [VoL III

Administration of Criminal Justice in England
and India— A Comparison.

^^ BY SYED AMEER ALL

Late a Judge of H. M.'s High Court of Judicature in Bengal.

" The conjunction of coincidences " which led to the disastrous failure
of justice in the case of Adolph Beck was, a little while ago, characterised
in the House of (Commons by an eminent politician and lawyer as " a
tragedy of errors." However tragical the consequences of the trial were
to the individual concerned, they have served one useful purpose. They
have brought home to the public that the administration of criminal justice
in England is open to improvement. And it was interesting to know from
an authoritative source that even members of the Government were " in
favour of some sort of criminal api>eal to provide for the possibility of
-revision in criminal cases."

The admission even of a " possibility " which this statement implies,
is a distinct advance in the conception of the situation. The wonder is
that the need of such a court should not have forced itself on the minds
of the publicists without requiring so many immolations on the altar of
justice. For it is idle to suppose that the case of Adolph Beck was the
first, or, so long as the present system is allowed to remain unchanged,
will be the last of its kind.* The remark in the House of Commons that

* since the above was written the case of Forb33 has furnished an'>ther illustration. If
Edulji's appeal has been heard and disposed of bj a cora;i3t2:it tribu*.nl, the serious doubt
which a large body of the public entertain abjut tho cirrc^t!i3H of his coavictioa would hayg
been dispoeod of one way or the other.



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66 The Criminal Law Journal. [Vol. lit

" those cases of wrongful imprisonment were not merely so rare as a
great many people would fain believe " did not certainly err on the side
of exaggeration. Only, in the majority of instances the facts are not so
glaring, and do not, therefore, arouse the same interest as in the case of
Adolph Beck.

Lawyers are proverbially conservative in their ideas ; old-established
institutions possess in their eyes the sanctity of ages. But even they
have realised for a long time the necessity of a change.

To the general public, the administration of criminal justice is a
matter of serious importance ; and lawyer and layman alike must feel
that no means should be neglected ^ to ^uard against the chance af an
innocent person being wrongfully convicted for an offence which he or
she never committed, and condemned to the loss of liberty — may be posi-
tion and character — ^all that one holds most valuable in life. Juries and
Judges are equally open to wrong impressions, equally prone to attach
undue weight to positrve statements unless shown to be manifestly untrue.
The mere fact, that twelve good and honest citizens come to a particular
view, does not invest their opinion with the character of infallibility ;
crfleetively they are as liable as individually to be swayed by preconcep-
tions. Miiiearriage of justice is in these circumstances unavoidable. In
palliation of these aberrations it is alleged that they are occasional. Rare
or uncommon, i*. seems to be aa imperative duty on the part of all interest-
ed in the proper administration of justice to render the occurrences of
^uch fatalities less possible.

; Hitherto, the task of revising wrong convictions has been entrusted
ip offi;cilils who deal with the cases upon minutas prepared by clerks,
9«pplemented by the opinion, or the report, of the trying Judge. It is aa
onerous and invidious responsilMlity. To expect that under this system
any individual, however talented and conscientious, can perform this duty
iii every instance satisfactorily is to calculate on the impossiWe. That he
so often arrives at an apprmimately correct conclusion is to his credit.
The consideration of a criminal case in its final stage requires a combina-
tion of qualities, chief of which are a judicial faculty and the capacity of
marshalling facts with due regard to their relative bearing. These quali<-
ties do not come intuitively or by inspiration, but are the growth of patient
trailing and practical experience. And no amount of *' minutes," pre-
pared by the ablest clerks, can make up for their absence. Nor, is the
atmosphere of an office-chamber conducive to that careful analysis and
weighment of facts, which is habitual in an open court ; the mind is apt
to be confused by the very elaboration of the " minutes " on which it
proposes to act.

The House of Commons represent^, in a collective shape, the common
sense and practical wisdom of the British nation. The expression, in the



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Vol lit] $HE CkiminaL Law Journal. C7

midst of this body, by a member of the late Government of his " personal
concurrence with those who are in favour of a Court of Criminal Appeal "
furnishes a hopeful augury. Not that the idea will pass unopposed or
uncriticised. Many would view with disfavour, the suggestion to give to
tlie accused an appeal in the case of a wrong conviction, on the ground
that logically it would lead to a right of appeal by the Crown in the event
of a wrongful acquittal. They would fain, therefore, be content with
making it compulsory on Judges to " reserve " cases. It must be obvious,
however, that a bald provision of this character would hardly meet all
necessities ; for a Judge would be bound to state a case only where a
question of law is raised at the trial. In the case of Adolph Beck where a
point as to the admissibility of certain evidence did arise. Counsel could
have asked, under such a provision, for the statement of a case. But in
the majority of instances justice miscarries because the verdict proceeds
upon a misapprehension or wrong appreciation of the facts.

It is in these cases that a Court of Criminal Appeal is needed to
correct mistakes and redress the wrong, and prevent the '* appalling
experience " to which Mr. Asquith referred in the House of Commons.

Nor is the right of appeal by the Crown, from a perverse verdict of
acquittal, such a dread contingency as need prevent our considering the
necessity of a change in the judicial system in the interests of a person
wrongly accused of a crime.

A competent criminal tribunal, to take cognizance of the cases which
now come before the Home Office, and with which it fipds itself hardly
adequate to cope, may be regarded now as within the range of practical
politics. In cQ««dering the scope, jurisdiction and functions of such a
court, a judicial system, which owes its origination primarily to English
lawyers, offers an interesting subject of study. The Indian Legislature
has in a great measure anticipated the provision towards which public
opinion is tending in England, and without which we may soon be brought
face to face with a still more scandalous miscarriage of justice than even
in the case of Adolph Beck.

I admit the British Indian system is by no means perfect ; many
features in it are open to criticism. All the same the safeguards it pro-
vides against an erroneous conviction marks it as incomparably superior
to that which prevails in England. These safeguards often fail to answer
their purpose but that is due either to personal idiosyncrasies, or to too
much subservience to the letter, rather than the spirit of the law.

No adequate conception can be formed of the intent or nature of the
provisions for the revision of criminal cases, without some understanding
of the machinery with which the work is carried on. The High Courts
qI Judicature in India are modeled on the same lines as the High Court



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68 The CRiMii^AL Law JoujrnaL. [Vol. Itt

of Justice in England. The Metropolitan High Court possesses the same
traditions. And although since the Charter much has happened to impair
their jurisdiction, they enjoy unabated the confidence and respect of the
public. For the elucidation of my thesis I am taking as an instance the
High Court of Judicature in Bengal, of which I had the honour of being a
member for so many years. The criminal jurisdiction of the court extends
over a population exceeding seventy millions, inhabiting a vast province
which, in the variety of its economic and industrial interests, bears com-
parison with some of the largest and most advanced Western countries.
The entire criminal work, which is chiefly appellate and revisional, of
Bengal, Behar, Orissa and Assam is entrusted to a Bench composed of
two Judges. I mention this fact, not with the object of glorifying the
Indian High Courts, but to show the utter groundlessness of the fear, that
a single Bench in England would not be able to make headway with the
cases it would be called upon to determine, and that there -would soon be
a congestion of business.

The Subordinate Criminal Courts are presided over by Sessions
Judges, and District, Joint and Deputy Magistrates. These, under the
superintendence and general direction of the High Court form the judicial
hierarchy charged with the administration of criminal justice. The unpaid
Magistracy also perform most useful functions. Offences are triable
according to their degrees of culpability, and certain classes of magistrates
cannot impose punishments beyond a specified limit. An appeal lies both
on law and facts, save where the sentence is one of imprisonment not
exceeding one month " only," or of fine not exceeding fifty rupees " only,"
or of whipping " only." In such cases, however, the accused has the
right of applying either to the court to which the officer passing the
sentence is subordinate, to " refer " the case to the High Court for the
exercise of its revisional jurisdiction, or of applying direct to the High
Court. Or that Court, if it is of opinion that there has been a miscarriage
of justice, may, of its own motion, refer it to the High Court, with a recom-
mendation that the conviction might be quashed.

Where there is a right of appeal and it fails, the accused has a right
to apply to the High Court. The power of revision possessed by the High
Court is, not without reason, regarded as affording a most wholesome safe-
guard against a miscarriage of justice or a capricious exercise of judicial
power.

The section in the Code of Criminal Procedure indicating the Court*^
revisional functions, is worded as follows :

" The High Court may call for and exa-
mine the record of any proceeding before any inferior Criminal Court
situate within the local limits of its .jurisdiction for the pur-
pose of satisfying itself as to the correctness, legality or propriety of any



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Vol. Ill] The Criminal Law Journal. 69

finding, sentence or order recorded or passed, and as to the regularity of
any proceedings of such inferior court."

The powers of the High Court under the Charter are wider still. The
law has, on the whole, been interpreted and applied in the broadest sense,
to correct mistakes, to redress injustice and stop high-handed proceedings
on the part of inferior courts. And sentences and findings have been
" revised," not only on the ground of illegality or irregularity, but also
because they were wrong on the " merits." Extravagant terms of imprison-
ment, indiscreet imposition of fines, exaction of excessive bail, unneces-
sary delay in the trial of cases, have been dealt with and remedied by the
High Court, in the exercise of its revisional jurisdiction. Its appellate
powers are equally extensive. It must be noted that under the Indian
Law serious offences carrying heavy penalties are divided into two
classes ; some from their heinousness or gravity are triable exclusively
in the " Court of Session." Others are triable in the Court of Session, or
by a Magistrate vested with what is called first class powers. In case^
tried in the " Court of Session " the appeal lies to the High Court. In
the others the accused can appeal to the Sessions Judge, and on failure
thereof, can apply in revision to the High Court.

" Trials before a Court of Sessions " are " either by jury or with the
aid of assessors." The Sessions Judge is, of course, in both instances a
component part of the court. To make the provision generally intelligible,
it is necessary to mention that certain districts which are considered
suflBciently advanced possess the privilege of trial by jury. In the others
which do not occupy that fortunate position the Judge tries the case with
the aid of assessors.

In an appeal from a conviction by a jury the law does not authorise
the court to alter or reverse the verdict " unless it is of opinion that such
verdict is erroneous, owing to a misdirection by the Judge, or to a mis-,
understanding, on the part of the jury, of the law as laid down by him."

In the case of an appeal from a conviction by the Sessions Judge with
the aid of assessors, the High Court has the power to examine the evidence,
irrespective of any question of misdirection or misunderstanding of the
law.

The traditional reverence attached to a trial by jury makes jne hesitate
to say a word in depreciation of the time-honoured institution which has
been the means, in England, of guarding the liberty of the subject in
times of great difficulty and danger, and which in the Presidency towns
of India has served a most useful purpose. So much, however, I think I
may say. As an advocate and as a Judge, I have carefully watched for
many years, the working of both modes of trial outside the Presidency
towns, and my opinion is that a trial with the aid of assessors has an



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TiQEj Thb Crimikal Law Journal* [Vol, 111

advauhige which the other often greatly needs — viz., of having the case of
the accused considered upon the merits by an Appellate Court presided
ovef by two judges generally of experience, and generally uninfluenced by
sentiment or bias.

When an appeal from a conviction is presented to the court, the
dppellant or his advocate is entitled to l>e heard and, if he makes out a
prima fade case of grievance, the appeal is admitted and notice is issued to
the Crown to appear and support the conviction.

The powers of the Court in Ae^aling with appeals are very extensive.
It can ^' reverse the finding and sentence, and acquit or discharge the
accused or order him to be re-tried by a court of competent jurisdiction
subordinate to such Appellate Court or committed for trial, or alter the
findings maintaining the sentence, or with or without altering the finding,
reduce the sentence, or, with or without such reduction and with or with-
out altering the finding alter the nature of the sentence but not so as to

enhance the same" "make any amendment or

any consequential or incidental order that may be just and proper."

In order to show the necessity of such powers on the part of the
highest Appellate Tribunal, I w ill give one instance. Three persons were



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 9 of 91)