Court : Kolkata
Reported in : (1876)ILR1Cal220
Richard Garth, C.J.1. I am happy to say, that since last evening, some papers have been discovered, which will render any further discussion of this rule unnecessary.2. It appears, that in 1869, in a case which in its circumstances very closely resembled the present, it was decided by no less than nine Judges of this Court, that the proper course was to apply to the Court, sitting in its judicial capacity upon affidavits, in the usual way; and I am extremely glad to find that no less distinguished a Judge than Mr. Justice Louis Jackson, was one of the Judges who took part in that decision. This was the case of The Queen v. Pogose referred to by Mr. Woodroffe. An application in that case was made by Mr. Herschel, the Officiating Sessions Judge of Dacca, to the Registrar of this Court, suggesting that an order should be obtained for the transfer of the proceedings to the High Court for trial. I will read his letter, dated the 11th of June 1869.I have the honour to request that you will l...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal283
Macpherson, J.1. It seems to us to be clear that this case came before the Magistrate of the 24-Pergunnas under Section 295 of the Criminal Procedure Code,[1] and that it was in the first instance dealt with by the Magistrate under that section. That being so, his proper and only course was to proceed under Section 296, to report the case for orders to the High Court, which (under Section 297) might have ordered the accused persons to be tried, if of opinion that they had been improperly discharged.2. A case (re Sidya bin Satya) quoted by Mr. Prinsep in his latest edition of the Criminal Procedure Code, as having been decided by the Bombay High Court, has been referred to as showing that the Magistrate was right in the course he adopted. But that case is not reported in the regular reports of the Bombay High Court: nor have we been able to find any report of it. The full facts with which the Bombay Court had to deal are not before us, and we are unable to say how far the Court may real...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom219
Melvill, J.1. In this case it is admitted that if the so-called confessions of three of the prisoners be excluded from consideration, the convictions cannot be sustained. In fact, there is no other evidence of the smallest value in the case. These confessions were recorded by a Magistrate of the 3rd Class under Section 122 of the Code of Criminal Procedure. They are signed by the prisoners, and the Magistrate has made on them the memorandum required by Section 122, certifying his belief that the confessions were voluntarily made. Several objections have been taken to the admission of these confessions, but the only one which requires serious consideration is the following. Section 122 requires that confessions recorded under that section shall be taken in the manner prescribed in Sections 345 and 346. One of the provisions of Section 346 is that the Magistrate shall certify under his own hand that the examination was taken in his presence and in his hearing, and contains accurately the...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal281
Macpherson, J.1. Let the Magistrate be directed to re-arrest Gobin Tewari and Jodoo Lall, and keep them in custody till the hearing of the appeal....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom223
1. The Court consider that the combined sentence passed under Section 314 of the Code of Criminal Procedure, in a case of simultaneous convictions for several offences, must be considered a single sentence for the purpose of confirmation or appeal. The sentence of nine years' rigorous imprisonment in the present case, therefore, requires confirmation by the Sessions Judge (section 18). The proceedings are accordingly forwarded to the Sessions Judge for his order. Should he confirm the sentence wholly or in part, he should return the proceedings to this Court, in order that the appeal may be disposed of....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal118
Mitter, J.1. I am also of the same opinion. It seems to me that the effect of the Government Resolution, dated 1st of January 1873, was to confer upon Mr. Carnegy powers under Section 222 of the Criminal Procedure Code within the Subdivision of Jorehaut only. That being so, it cannot be said that he was 'transferred to an equal or higher office' of the nature of that which he held in the district of Seebsaugor; because, supposing he was transferred within the meaning of that Section and that he never vacated his appointment, the office to which he was transferred in the district of Kamroop is neither equal to nor higher than that he held in the district of Seebsaugor. A reference to Sections 27 and 28 of the Code[1] will show that the powers of a Magistrate of a division of a district are higher than those of a Magistrate of the first class not in charge of any subdivision. I am, therefore, of opinion that, under the Section (56) referred to above, Mr. Carnegy did not continue to exerc...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal23
Macpherson, J.1. This is an application to the High Court under Section 297 of the Criminal Procedure Code.2. The petitioner, Bholanath Sen, has been convicted by a Bench of Magistrates at Midnapore on two charges of breach of trust, under Section 409 of the Indian Penal Code. He was sentenced to two periods of imprisonment, amounting, in all, to two years rigorous imprisonment, with a fine of Rs. 1,000 and in default of payment of the fine six months additional imprisonment.3. We are asked to quash the conviction on the ground of various substantial illegalities and irregularities, most of which are set forth in the petition presented to this Court.4. The seventh of the grounds stated in the petition is, that it was illegal and improper that a certain Mr. Larymore should have been one of the Bench of Magistrates who tried this case. It appears to us that this is a good ground of objection, and that, under the circumstances, the presence of Mr. Larymore, who had a substantial interest ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom342
Melvill, J.1. I understand that these proceedings have been referred to me under Section 271-B of the Code of Criminal Procedure, in order that I may decide whether the offence committed by the prisoner was murder, or culpable homicide not amounting to murder.2. For convenience of comparison, the provisions of Sections 299 and 300 of the Indian Penal Code may be stated thus:Section 299.A person commits culpable homicide, if the act by which the death is caused is done(a) With the intention of causing death;(b) With the intention of causing such bodily injury as is likely to cause death:(c) With the knowledge that the act is likely to cause death.Section 300.Subject to certain exceptions, culpable homicide is murder, if the act by which the death is caused is done (1) With the intention of causing death;(2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;(3) With the intention of causing bodi...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom339
1. The Court does not think that it can follow the Allahabad High Court--Queen v. Kultaram (I.L.R. 1 All, 129)--in holding that Section 473 of the Criminal Procedure Code, when it says that no Court shall try any person for an offence committed in contempt of its own authority, is to be limited to offences falling under Chap. X of the Indian Penal Code. The reasons given by the Madras High Court (Proceedings, 24th March 1873) (7 Mad. H.C. Rep. Appendix XVII), for extending the section, at all events, to the offences against public justice and the offences relating to documents mentioned in Sections 468 and 469 of the Criminal Procedure Code are, in the Court's mind, conclusive; and a Division Bench of this Court [Reg. v. Navranbeg (10 Bom. H.C. Rep., 73)] seems to have been of opinion that the section must be held applicable to all contempts of Court. If the limitation imposed upon the section by the Allahabad Court be removed, as the Court thinks it must, the section must necessarily ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal451
Macpherson, J.1. This is an application to quash an order of the Judge of Gya, under Section 471 of the Criminal Procedure Code, sending the plaintiff in a Civil suit and two of his witnesses to a Magistrate for enquiry into charges of giving false evidence, &c.;2. I say the order was made under Section 471 of the Criminal Procedure Code, because although Section 16 of Act XXIII of 1861[1] gives Civil Courts powers similar to those conferred on Civil and Criminal Courts alike by Section 471, there can be no doubt that the whole law is now embodied in Section 471, and our jurisdiction to interfere in the matter is not affected by a suggestion that the order in question was, or might have been, made under Section 16 of Act XXIII of 1861[2] and not under Section 471.3. The learned Judge stated the facts of the case and continued.4. It is contended for Baijoo Lall and Juggernath that the Judge had no power to make that order, inasmuch as he never made any preliminary enquiry and had no suf...
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