Court : Mumbai
Decided on : Feb-14-1878
Reported in : (1878)ILR2Bom525
1. This case depends upon the 4th and 5th clauses of Section 263 of the Criminal Procedure Code. These clauses are not very clearly drawn; but taking them together, as we are bound to do, in order to ascertain the meaning of the Legislature, we think that the 'dissent,' spoken of in the 4th clause, must be such a complete dissent as to lead the Judge to consider it necessary for the ends of justice to submit the case to the High Court. There being no such complete dissent in this case, we think that the conviction and sentence must stand. This decision is not in conflict with our decision in Imperatrix v. Hari Ghanu, where we held that Government might appeal against an acquittal by a jury where the Judge differed from the jury, but did not consider it necessary for the ends of justice to refer the case to the High Court....
Tag this Judgment!Court : Mumbai
Decided on : Feb-28-1878
Reported in : (1878)ILR2Bom534
Melvill, J.1. In this case Gowdapa bin Venkugowda was accused before a First Class Magistrate, Mr. Ramchandra Bapuji, of an offence triable by the Magistrate, and was discharged by him under Section 216 of the Criminal Procedure Code. The District Magistrate thereupon called for the record of the case; and, not being satisfied with the reasons given for the order of discharge, sent the record to another First Class Magistrate, Mr. Campbell, with an order directing him to try the case afresh. Mr. Campbell convicted the accused; but, on appeal to the Sessions Court, the conviction was reversed, on the ground that it was not competent to the District Magistrate to revive the proceedings, after Gowdapa had been discharged by Mr. Ramchandra Bapuji. In support of this conclusion the Sessions Judge relied on the decision of the Calcutta High Court in the case of Mohesh Mistree and another I.L.R. 1 Cal. 282.2. The District Magistrate professes to have acted under Section 142 of the Criminal Pr...
Tag this Judgment!Court : Mumbai
Decided on : Mar-20-1878
Reported in : (1878)ILR2Bom553
Melvill, J.1. This is an application of appeal against an order of the First Class Subordinate Judge of Kheda made subsequently to the date on which the new Code of Civil Procedure came into force, by which the Subordinate Judge determined two questions arising between the parties to a suit, viz., first, the amount of mesne profits which the plaintiff had recovered from certain mortgaged property subsequently to decree, and, secondly, the amount payable on account of the costs of execution. The final order of the Subordinate Judge was that, out of a sum of money deposited by the defendant, Rs. 8,476 should be paid to the plaintiff in full satisfaction of his decree, and the balance restored to the defendant.2. Against this order the plaintiff wishes to appeal, and the appeal was admitted provisionally, subject to any objection which the defendant might take to its admissibility under the provisions of the new Code.3. After hearing arguments on both sides, we have come to the conclusion...
Tag this Judgment!Court : Mumbai
Decided on : Apr-29-1878
Reported in : (1878)ILR2Bom564
Melvill, J.1. The proceedings in this case have been called for with the view of hearing an appeal preferred by the convict against the finding and sentence of the Sessions Court of Puna. In the meantime the convict has died in Jail.2. The sentence included a fine of one thousand rupees; and as, under Section 70 of the Penal Code, the estate of the deceased convict is still liable for the discharge of this fine, Mr. Vinayak Pandit asks that he may be heard against the conviction.3. Mr. Vinayak holds a power of attorney from the deceased convict, but this power was terminated by the death of the principal. He offers to produce a vakalatnama signed by the convict's representative; but it is clear that such representative has no locus standi in the case. In criminal cases, in which the sentence involves a fine or forfeiture of property, the representative of a deceased convict is, no doubt, interested in procuring a reversal of such sentence, and the Legislature might, if it had seen fit,...
Tag this Judgment!Court : Mumbai
Decided on : Jul-04-1878
Reported in : (1878)ILR2Bom643
Kemball, J.1. The Court concurs with the District Magistrate in thinking that Mr. Anding's view is wrong. It, therefore, annuls his order of discharge, and directs that the trial of Malka be proceeded with and disposed of according to law. Section 122 of the Code of Criminal Procedure clearly contemplates two distinct cases: one is that of a person coming forward to state what he knows; the other is that of a person accused by a police officer of an offence who comes forward to confess his guilt. With regard to the former, the section provides that the statement made by him shall be recorded in the manner prescribed for recording evidence--that is to say, under Section 331 of the Code of Criminal Procedure, on oath or affirmation; whereas in the case of an accused person confessing to an offence of which he is accused, the Code, by Section 345, enacts that neither oath nor affirmation shall be administered to him....
Tag this Judgment!Court : Mumbai
Decided on : Jul-11-1878
Reported in : (1878)ILR2Bom653
Kemball, J.1. The Court concurs with the opinion of the Magistrate of the District. The offence charged was one of 'contempt of the lawful authority of a public servant,' and no proceedings could have been instituted against the offender without the sanction of the Court whose authority had been resisted. In such a case the complainant spoken of in Section 210 of the Code of Criminal Procedure, must be deemed to be the Court resisted, and not the person injured through the resistance. Therefore, to make the withdrawal of such a complaint, as that under consideration, legal, it must be based on the application alone of the Court or authority sanctioning the proceedings.2. The Court annuls the order of the Subordinate Magistrate, permitting the withdrawal of the charge in this case, and directs the Magistrate to proceed with the trial, and dispose of the case according to law....
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