Court : Mumbai
Reported in : (1888)ILR12Bom63
West, J.1. In this case the Judge of the Small Cause Court at Ahmedabad has fined the applicant Rs. 75 for not producing a document which he had been summoned to produce. The applicant came to the Court, but then stated on oath that he had not the document, and could not produce it. Thereupon the Judge disbelieving this statement fined him ostensibly under the provisions of Section 174 of the Code of Civil Procedure. A careful perusal of that section, however, shows that the present case did not fall within it. The jurisdiction to punish under the enactment exists only in the case of a witness, who, not having attended on summons, has been arrested and brought before the Court. The case of a witness who, having a document, will not produce it, is provided for by Section 175 of the Indian Penal Code, and a limited summary jurisdiction is given to the Court in such a case by Section 480 of the Code of Criminal Procedure (X of 1882). The mere provision of this mode of procedure by the Leg...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom36
West, J.1. This is a reference by the Sessions Judge of Sholapur under Section 215 of the Criminal, procedure Code (Act X of 1882). 2. The question for decision is, whether a Sub-Registrar for the purposes of the present case is to be regarded as a Judge, and the proceedings held before him as judicial proceedings,in a Court, so that no prosecution for forgery can proceed without his sanction in respect of a forged document presented for registration in his office?3. It might have materially assisted the Court if the Sessions Judge, instead of adopting the somewhat superficial reasoning of the Assistant Sessions Judge, had entered on an independent investigation of the question from the standpoint of his own wider knowledge and riper experience.4. The expression forgery is used as a general term in Section 463 of the Indian Penal Code, and that section is referred to in a comprehensive sense in Section 195 of the Criminal Procedure Code, so as to embrace all the species of forgery afte...
Tag this Judgment!Court : Mumbai
Reported in : (1889)ILR12Bom167
West, J.1. It appears from the decision of the Magistrate in disposing of the case, though the matter is not brought out with absolute clearness, that he was under the impression that when a previous publication of the alleged defamatory matter had occurred, the subsequent republication could not properly be made the subject of prosecution until that course had been taken with regard to the earlier publication. This, however, is not law. The Indian Penal Code makes no exception in favour of a second or third publication as compared with a first and such an exception would obviously be made a means of defeating the principal provision of the law of defamation. In England it is not allowed to a defendant to prove that a statement, similar to the one for which he is indicted, has been previously published by persons who have not been prosecuted (see Reg. v. Holt 8 Cox. C.C. 411 ); and the repetition of a common rumour, however prevalent, is not received as an excuse for its further promul...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom221
Charles Sargent, C.J.1. The plaintiffs in this suit, who are some of the fishermen of the village of Naoghar, claim for the fishermen of that village the exclusive right of fishing in the Nagothna creek between high and low water, within certain limits mentioned in their plaint, and seek, under Section 9 of the Specific Relief Act, to recover possession of that right from the defendants, who, they allege, had dispossessed them within six months before the filing of the suit. The Subordinate Judge made an order that possession should be given to the plaintiffs. It has been contended that this was beyond his jurisdiction, the right of fishing not being immoveable property within the contemplation of the above section. The right claimed is the right of excluding the public from a particular part of the sea, and would constitute what is technically termed a 'common of fishery,' and, being a private right of fishery as distinguished from the right of the general public to fish in the sea an...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom440
Birdwood, J.1. The conviction of the appellants rests upon the depositions made by them in an execution proceeding, in which they admitted their attestations of the deed of sale, which is proved by the evidence in the present case to be a forgery. In their examinations in the present case they deny their attestations; and if their depositions in the former case are excluded from consideration, there is nothing to show that they attested the deed of sale, The Sessions Judge, relying on the decision of the majority of the Judges who composed the Full Bench in the case of The Queen v. Gopal Doss (1), decided by the Madras High Court on the 4th February, 1881, has admitted the depositions. I concur, however, in the opinion of the two Judges (Kernan and Muttusami Ayyar, JJ.,) who dissented from that decision. I think that Section 132 of the Evidence Act, read with Section 14 of Act X of 1873, compels a witness to answer criminating questions, and that he is protected by the proviso to Secti...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom377
Birdwood, J.1. The Magistrate has found, on the evidence in this case, that the complainant, a Bhatia cloth-broker and shopkeeper, was stopped and questioned by the accused, a constable of the Bombay police force, regarding three pieces of cloth that he was carrying; that an altercation occurred between them; that the complainant was ultimately arrested and marched off in ignominy through the streets, first to the Girgaum Police station and then to Dhobi Talav, and that he was in police custody for upwards of four hours before he was finally discharged by Inspector Saunders without any recognizance being taken or charge framed against him. In his examination before the Magistrate, the accused said that he had taken the complainant into custody because he had assaulted him. The complainant denied that he had struck the accused, but admitted that he had a scuffle with him and that his hand might have gone against the body of the accused. It was contended for the accused, in the Court bel...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom507
Scott, J.1. This is a preliminary issue of great importance It raises the question whether subjects of the Native States 6 India resident out of the jurisdiction but with a branch business in Bombay, are liable to be sued in this High Court when the cause of action arose entirely out of the jurisdiction. The subjects of the Native States of India are foreigners in the sense required here, just as much as say the natives of France. They have their own courts, their own jurisprudence, their own procedure and the criminal and civil jurisdiction of the Courts of British India is by treaty excluded from them. A decision in favour of jurisdiction might have curious consequences. If, for instance, a native of France entered into a contract with a French architect for building a house in Paris on certain terms and conditions, the tribunals of this city would be competent to hear a suit brought by one of those parties against the other on a breach of the contract, provided the defendant carried...
Tag this Judgment!Court : Mumbai
Reported in : (1888)ILR12Bom561
Birdwood, J.1. We called for this case on a review of the Karachi City Magistrate's criminal return for January last, which was forwarded to us by the Judge of the Sadar Court in Sind as the return of the trial of a European British subject. On an examination of the record and proceedings, the sentence passed by the City Magistrate appeared to us to be inadequate; and if the accused could be regarded as a European British subject, it would have been illegal. We, therefore, issued a notice to the accused, under Section 439 of the Code of Criminal Procedure, to show cause why the conviction and sentence should not be reversed, and why he should not be committed to the High Court for trial.2. It is argued by Mr. Inverarity, the learned Counsel for the accused, that as he did not claim at the trial to be dealt with as a European British subject, he cannot now be regarded as such; and that as the offence was committed in Sind, where the highest Court of criminal appeal or revision is the Sa...
Tag this Judgment!Court : Mumbai
Reported in : (1889)ILR13Bom109
Birdwood, J.1. The District Magistrate has referred two cases to us--(1) Imperatrix v. Bachappa and (2) Imperatrix v. Irappa, which do not stand on the same footing, but which we can conveniently dispose of together. In both cases sanction was given for the prosecution of the accused under Section 195, Clause (b), of the Code of Civil Procedure. Rachappa's prosecution was sanctioned by the Subordinate Judge of Hubli, who after granting the sanction sent the case to the First Class Magistrate of Hubli for enquiry and trial under Section 476 of the Code, Irappa's prosecution was sanctioned by the Magistrate (First Class) of Hubli, who does not seem to have sent the case to any other Magistrate for enquiry and trial, as contemplated in Section 476. The District Magistrate seems to have ordered the First Class Magistrate subordinate to him to try the case against Irapppa; but we cannot find that any such procedure as is prescribed by Section 476 was adopted in this case. In both cases the ...
Tag this Judgment!Court : Mumbai
Reported in : (1889)ILR13Bom147
1. As the accused are native Indian subjects of Her Majesty charged with committing offences under Section 407 and Sections 407 and 109 of the Indian Penal Code at a place beyond the limits of British India, they may, under the provisions of the Section 188, Criminal Procedure Code, be dealt with in respect of such offences as if they had been committed at any place within British India at which the accused may be found. In the present case the accused were found at a place in the Ahmedabad district. They can, therefore, be tried in that district: see Empress v. Magaulal I.L.R. 6 Bom. 622 . The proviso to Section 188 has no application to the present case, as there is no Political Agent in the Portuguese territories of Daman, where the offences charged against the accused are said to have been committed. The Court, therefore, reverses the Joint Sessions Judge's order of acquittal, and directs that the accused be tried by the Court of Sessions at Ahmedabad, to which they have been duly ...
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