Court : Kolkata
Reported in : (1879)ILR4Cal222
Ainslie, J.1. The question raised by this application is whether, in 1876, Section 12, Act VIII of 1859, applied to the Sonthal Pargannas in respect of suits in which the subject of dispute exceeds Rs. 1,000 in value.2. The petitioner instituted a suit valued at Rs. 6,197-9 on a mortgage bond, by which certain properties lying partly within the jurisdiction of the Civil Court at Moorshedabad and partly within that of the Court at Dumka in the Sonthal Pargannas were pledged, and sought to get a decree specially declaring the liability of those properties in respect of the debt covered by the bond. This suit was instituted in the Court of the Subordinate Judge of Moorshedabad who made a reference to obtain sanction from the High Court under Section 12, Act VIII of 1859, to his proceeding with the suit.3. On the 17th April 1877 an order was made by a Judge of this Court, before whom, in the ordinary course of business, such references were laid, declining to give the authority sought, on ...
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal18
Ainslie, J.1. Section 274 of the Code of Criminal Procedure takes away the right of appealing from persons convicted by Magistrates of the first class exercising summary jurisdiction when the sentence is one of imprisonment, not exceeding a term of three months. Therefore, in the present case, the convicted persons, who have been sentenced to a term of imprisonment not exceeding three months, are deprived of the right of appeal on the facts, if the Deputy Magistrate was right in trying the case summarily.2. The Deputy Magistrate seems to think that the fact that he had not the Police papers at the time that the prisoners were put on their trial entitled him to deal with the case on the verbal statement of a Court Sub-Inspector. But on looking at the record it appears that the very first witness for the prosecution states distinctly that there were two persons who appear to have been the leaders of the unlawful assembly if the evidence of this witness is to be believed) armed with sword...
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal124
Markby, J.1. The defendant in this case has been convicted and sentenced to simple imprisonment for two months by the Joint Magistrate of Balasore under Section 500 of the Penal Code of defamation, and he has applied to us to set aside the conviction and sentence as illegal. The defamation charged is contained in a petition to the Magistrate of Balasore, in which the defendant stated that Harnarain Mahapattur and others were preparing to bring false charges against him, and it was upon Harnarain Mohapattur's complaint that the allegations in this petition were injurious to his character that these proceedings wore instituted. The defendant at the trial tried to prove that the allegations in the petition were true, and he called several persons who swore that they had heard conversations between Harnarain Mohapattur and other persons in which Harnarain Mohapattur had expressed his intention of getting up false charges against the defendant, and they had reported these conversations to t...
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal16
Markby, J.1. The Deputy Magistrate, Moulvie Abdool Guffoor, discharged the accused; but, on the application of the complainant, the District Magistrate has committed him to the Court of Session, notwithstanding that objection to his jurisdiction was raised. The Magistrate appears to have considered that he had jurisdiction, because, this being a case regarding an offence triable by the Court of Session as well as by a Magistrate, ho could act under s.296 of the Code of Criminal Procedure.2. The Sessions Judge has referred the case to have this commitment set aside as illegal.3. The grounds on which the Magistrate held that he could re-open this case are bad, as it has been held that the term 'Sessions case' in Section 296 means a case triable exclusively by the Court; of Session. But we think that the commitment should be maintained on another ground.4. The Deputy, Magistrate discharged the accused without examining the principal witness in the case, the woman who was alone present in ...
Tag this Judgment!Court : Mumbai
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 : Kolkata
Reported in : (1879)ILR4Cal483
Richard Garth, C.J.1. I am of opinion that under Section 30 the confession of a prisoner which affects himself and some other prisoner charged with the same offence, becomes, when duly proved, admissible in evidence as against both prisoners, and must he so dealt with by the Court. When this confession has been duly proved, it may, by the express language of the section, be taken into consideration against either prisoner; and I do not see in what other way it can he taken into consideration than as evidence. There is no provision in the section by which the confession is to be receivable against one prisoner in one way, and against the other prisoner in another way. But although the section does, in my opinion, make the confession admissible in evidence against either prisoner, the weight which ought to be attached to such evidence, and the question, whether, taken by itself, it is sufficient in point of law to justify a conviction, is a question for the Judge who tries the case.2. A ...
Tag this Judgment!Court : Mumbai
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....
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal417
Ainslie, J.1. One Promothonath Sandyal, a minor, died on the 12th of Pous last, corresponding with the 1st of January of the current year. During his lifetime, Bholanath Khan was one of his guardians, and, to use the language of the Deputy Magistrate, 'it is admitted that Bholanath Khan was the sole surviving trustee of the late Promothonath Sandyal at the time of his death, and that the property was vested in him.' Khethernath Chuckerbutty, on behalf of his son Shibnath Chuckerbutty, claimed the estate of the late Promothonath Sandyal. He obtained an order for a certificate under Act XXVII of 1860 on the 28th of February last, and subsequently took out the certificate. He then proceeded to the villages, and on the strength of this certificate he induced a number of ryots to give him kabuliats. The Deputy Magistrate was informed by the Police that there was likely to be a breach of the peace, and he instituted proceedings under Section 530 of the Criminal Procedure Code, calling upon K...
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal604
Markby, J.1. But I also think that neither of these two persons would come within Section 90 of the Code of Criminal Procedure. With regard to the person who appears to be really a khazanchi, although possibly he performs some other duties, I do not think that he would be an agent within the meaning of that section under any circumstance, unless we extend this section to all servants of zemindars, which I certainly should not feel disposed to do. With regard to the dewan, he might be an agent within the meaning of the Act if his master was absent. But it would be unreasonable to extend the operation of the Act to a dewan who was acting only under the orders of his resident master. The section is exceedingly vague in its language and, unless strictly construed, might be made the instrument of great oppression2. The conviction and sentence must be set aside, and the petitioners released.Prinsep, J.(After noticing the irregularities referred to by Markby, J., proceeded as follows):As rega...
Tag this Judgment!Court : Kolkata
Reported in : (1879)ILR4Cal378
Jackson, J.1. We think it clear that the order of the Magistrate is erroneous. He seems to be under the impression that the effect of the butwara proceedings and the orders therein is to oust the tenants previously holding under parties either in joint possession or holding separately by consent. That clearly is not so. The injustice would be monstrous if it were so.2. The possession given by the butwara ameen to Shere Bahdoor in this case was possession as owner, not possession as occupier. The Magistrate's order, therefore, must be set aside. The Magistrate will enquire into the fact of actual possession by the complainant, Mr. Jackson's client, and if he be found to be in actual possession will maintain him in it....
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