Court : Mumbai
Decided on : Jan-10-1907
Reported in : (1907)9BOMLR153
Batty, J.1. This case also comes before us on appeal by the remaining nine accused referred to in Criminal Reference No. 81 of 1906 both against the conviction for rioting in the case tried with the aid of Assessors and against the conviction on the charge of murder tried by Jury.2. The Sessions Judge framed the charge of murder himself upon grounds which do not appear to have suggested themselves to the committing Magistrate. It does not appear that he placed before the Jury the special circumstances which in his view would have brought the offence within the definition of murder contained in Section 300, Indian Penal Code. It dues not seem to have been put to the Jury in the charge, whether any of the intentions mentioned in this section were established as against any of the accused and the exceptions Nos. 1, 2 and 4 do not seem to have been explicitly explained to the Jury. The Sessions Judge directed the Jury to find that, if the offence of rioting were established, all the accuse...
Tag this Judgment!Court : Mumbai
Decided on : Jan-10-1907
Reported in : (1907)9BOMLR212
Batty, J.1. These two appeals Nos. 150 and 151 wore argued together. The same persona are appellants in both appeals. They were charged with and convicted of having instigated certain persons to give false evidence for the purpose of establishing in a pending civil suit that one Nasur Karmali, a deceased brother of the appellants, had divorced his wife Slerbanoo whose claim to maintenance was in litigation.2. The charges in the case in Appeal. No. 150 against appellant No. 1 Rashid set out that he had given such instigation :-(1) On 14th October 1905 to Mahomed Dhala.(2) On 15th October 1905 to Abbas Ebrahim.3. The charges against appellant No. 2 Issa in the same case were that he had given such instigation.4. On 14th October l905 to Abdul Russul Peera and Mahomad Dhaln.5. On 17th October 1905 to Abbas Ebrahim pages 139 and 141).6. The civil case in connection with which the false evidence in question was solicited was then pending before Mr. Murison.7. Initial objection has been taken...
Tag this Judgment!Court : Mumbai
Decided on : Jan-11-1907
Reported in : (1907)9BOMLR164
Batty, J.1. We do not think that this is a case in which we can interfere. It comes before us in revision, and. in revision it is not usual for us to appreciate evidence. It is suggested that some of the Magistrate's findings are irrelevant for the purposes of Section 110 and we are unable to say that this is not so. But there is a residuum which falls under Clauses (b) and (f) of Section 110, Criminal Procedure Code. The Magistrate found that the accused was by general repute a habitual offender committing mischief and that he protected thieves. It was not necessary for the purposes of Section 110, Criminal Procedure Code, that specific instances should be given. If specific instances had been established, the accused might have been charged with the offences specified. The Magistrate was justified by Section 117 in accepting the evidence of general repute that the accused was an habitual offender. We are specially impressed with the finding that the accused is a desperate and dangero...
Tag this Judgment!Court : Mumbai
Decided on : Jan-11-1907
Reported in : (1907)9BOMLR331
Batty, J.1. This case comes before us for review and for the determination of certain points of law, on a certificate by the Advocate General in terms of Section 30 of Act II of 1864 (an Act to provide for the administration of Civil and Criminal Justice at Aden).2. The case was originally tried and decided by Lieut. Mosse, First Class Magistrate, whose decision was confirmed on appeal by the Resident. Aden.3. A preliminary objection was taken on behalf of the Crown by the Government Pleader-that the enactment above cited (Section 30 of Act II of 1864), relates, only to cases tried in the first instance by the Resident himself-and does not extend to cases which the Resident has only heard on appeal.4. No authority has been cited in support of this position.5. Section 30 evidently relates to eases in which the Resident might under Section 29 reserve points of law for the opinion of this Court. And Section 29 extends in terms to 'any Criminal case' in which 'an order or sentence is passe...
Tag this Judgment!Court : Mumbai
Decided on : Jan-13-1907
Reported in : (1907)9BOMLR244
Batty, J.1. We are unable to accept the view taken by the Fourth Presidency Magistrate that the word 'residing' or 'resident'' should be interpolated in Section 110, Criminal Procedure Code, between the words 'any person' and 'within.' It seems to us that the Legislature has advisedly adopted the particular phrase used, to exclude the necessity of proving anything approaching permanent residence and to leave it in the power of the Magistracy to deal with what are perhaps the mostdangerous habitual criminals who wander from place to placeand have no well-known residence where the police or theMagistracy could be sure at any time of finding them.2. We also think that the Presidency Magistrate, not having disbelieved the evidence adduced before him, ought not to have discharged the persons brought before him on the ground that that evidence was insufficient or vague for the purposes of Section 110, Criminal Procedure Code. It is thoroughly established by the evidence, if credible, as the ...
Tag this Judgment!Court : Mumbai
Decided on : Jan-16-1907
Reported in : (1907)9BOMLR225
Batty, J.1. The question whether the District Magistrate's order directing the commitment of this case to the Sessions should be set aside depends mainly upon the construction that is to be placed on the words of Section 210, Criminal Procedure Code. That section requires that a charge should be framed and commitment made only when the Magistrate is satisfied that there are sufficient grounds for committing. It is urged that this phrase is tantamount to the language used in Queen Empress v. Namdev Satvaji I L R (1887) 11 Bom. 372 and Empress v. Varjivandas I L R (1902) 27 Bom. 84 : 4 Bom. L.R. 779, which, according to the contention for the Crown, implies that there are sufficient grounds when the facts alleged by witnesses would suffice for the conviction if those witnesses were believed. The language in both those judgments, however, requires that the witnesses should be credible. We think, with reference to the wording of the present Code, a Magistrate can hardly be said to be satis...
Tag this Judgment!Court : Mumbai
Decided on : Feb-14-1907
Reported in : (1907)9BOMLR250
1. We are of opinion that the Sub-Divisional Magistrate's view is correct. The direction in Clause (2) of Section 253, Criminal Procedure Code and its absence in Clause (1) shows, on the principle of expressio unius est exclusio alterius, that the Legislature does not render the writing of 'reasons' necessary where an accused person is discharged after the trying Magistrate has heard all the evidence for the prosecution. The provisions of Section 367, Criminal Procedure Code, substantially support that conclusion. It is on the termination of a trial that judgment has to be pronounced. A judgment is a decision which decides a case finally so far as the Court trying the case is concerned, but an order of discharge is not a final order because there is nothing to prevent a Magistrate, after he has once discharged an accused person under Section 253, from inquiring again into the case against him. A discharge, not operating as an acquittal, leaves the matter at large for all purposes of ju...
Tag this Judgment!Court : Mumbai
Decided on : Feb-15-1907
Reported in : (1907)9BOMLR353
Chandavarkar, J.1. We agree with the learned Sessions Judge that Section 544 of the Code of Criminal Procedure and Rule No. XI made by the Government of Bombay under that section regulating the payment, on the part of Government, of the expenses of complainants and witnesses in cases coming before the criminal Courts, invest the Magistrate trying a warrant case with a discretionary power exerciseable by him within the limits specified in the rule itself. The question, then, is whether in the present case, the offences charged against the accused being admitted to be bailable, ' the prosecution has been instituted or is being carried on by, or under the orders of, or with the sanction of Government, or of any Judge, Magistrate, or other public officer.' There is no material before us on which we should be justified in holding that the prosecution has been instituted or carried on by, or under the orders of, or with the sanction of Government. But Mr. Khare, appearing for the accused, ar...
Tag this Judgment!Court : Mumbai
Decided on : Feb-26-1907
Reported in : (1907)9BOMLR359
Chandavarkar, J.1. The learned Magistrate admits in his report that he disallowed the examination of the petitioner's witnesses as to cruelty because, in his opinion, such evidence was inadmissible in a proceeding under Section 488 of the Criminal Procedure Code. That opinion appears to be supported by the authority of the ruling of the Allahabad High Court in In the matter of the petition of W.A. Thompson (1874) 6 N.W.P. 205, where, dealing with Section 536 of Act X of 1872, Pearson J. said 'This provision does not, in my judgment, authorise the Magistrate to entertain applications for separate maintenance, on the ground of ill-treatment, from wives whose husbands have not neglected or refused to maintain them, but who have of their own accord left their husband's house and protection and to order allowances to be paid to such wives on evidence of ill-treatment.' In one sense, that construction of the section, the wording of which, so far as the point now under consideration is concer...
Tag this Judgment!Court : Mumbai
Decided on : Mar-04-1907
Reported in : (1907)9BOMLR356
Chandavarkar, J.1. It is to be regretted that the learned Sessions Judge before whom, assisted by assessors, the appellants were tried, omitted to follow the procedure prescribed in imperative terms by the provisions of Section 342 of the Code of Criminal Procedure as to the examination of the accused persons by the Court during their trial. According to those provisions the Court 'shall' question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. The term 'shall' makes the duty imposed on the Court mandatory, not discretionary and when we have regard to the object of such examination, specified in the section itself, viz, that the Legislature intended it to enable the accused to explain any circumstances in the evidence against him, it becomes clear that the omission by the Court to perform such duty in a criminal trial must be presumed to have seriously prejudiced the accused. In all criminal matters, ...
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