Court : Kolkata
Reported in : (1878)ILR3Cal64
Markby, J.1. Two persons, Burah and Book Singh, have been convicted on a charge of murder by the Deputy Commissioner of the Cossyah and Jynteeah Hills and sentenced to death. The sentence was commuted to transportation for life by the Chief Commissioner of Assam on the 23rd April 1876.2. On the 9th July, 1870 the officer, in charge of the Kamrup jail forwarded to this Court petitions of appeal from these prisoners, unaccompanied by copies of the judgment.3. The first question which arises in the case is, whether the High Court has any power to entertain these applications; and this question is one of so much importance that it has been referred to a Full Bench, and has been on two occasions very fully argued.4. The Cossyah and Jynteeah Kills comprise a considerable tract of country on the eastern frontier of Bengal, and they contain a population which, in 1862, was estimated at 120,000. The Jynteeah Hills were formerly under the independent Rajah of Jynteeah. The Cossyah Hills were div...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal436
Richard Garth, C.J.1. We are of opinion that an appeal from an order of acquittal is within time if presented within six months from the date of the order of acquittal. The sixty days' rule does not apply.[1][1] Ed Note. In 'Reg. V. Dorabji Balabhai' (11 Bom. Rep. P. 117) it was held, that Section 272 of Act X of 1872 must be read by itself....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal291
Macpherson, J.1. I am of opinion that Section 147 gives mo no power to grant this application. The object in fact is to appeal against an acquittal. But Section 147 does not provide for such an appeal. It contemplates the transfer of a case before disposal, or interference on behalf of persons aggrieved or injured by an order of the Magistrate. But there was no intention to give power to interfere in order to set aside an acquittal. It' it had been intended to give that remedy, it would, no doubt, have boon expressly given, as in the Criminal Procedure Code and in the Presidency Magistrates' Act, IV of 1877. One section of the lattor Act (Section 181) really shows that Section 147 was intended to apply only whore there has boon a conviction, for it makes notice to the Government prosecutor necessary before an application can be made under Section 147.2. Even, however, if I had the power to interfere, I would not exercise it in such a case as this....
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom639
Melvill, J.1. It seems impossible, therefore, to bring the acts of the prisoners within the definition of murder. What we consider to be proved is this, viz., that prisoners, Nos. 1 and 2, went to the prostitute's house, armed with sticks, intending to beat the deceased; and that prisoner No. 1 caused the death of the deceased, by striking a blow which was likely to cause death, but was not sufficient in the ordinary course of nature to cause death. Under these circumstances, prisoner No. 1 was guilty of the offence of culpable homicide not amounting to murder, and having regard to the provisions of Section 111 of the Indian Penal Code, we consider that prisoner No. 2 was equally guilty of that offence.2. Unfortunately, this Court, as a Court of Reference, does not appear to have power, under Section 288 of the Code of Criminal Procedure, to alter a conviction of murder into one of culpable homicide not amounting to murder, but only to order a new trial. In referred cases there is gene...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal356
Markby, J.1. We think that we ought not to make the order asked for, because, even if the case were transferred to the Magistrate to Dacca, we do not think he would have power to release the lunatic upon taking security. The authority of the Magistrate appears to us to cease when the lunatic is handed over to the care of the local Government, and it does not revive until the prisoner is sent back to the Magistrate under Section 432 on a certificate that he is capable of making his defence. The Deputy Commissioner can, if he thinks proper, bring the matter to the Government....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal384
Ainslie, J.1. We think that, under the circumstances stated by the Magistrate, it is not desirable that the Court should interfere in the present ease. In the 4th paragraph of his letter the Magistrate expresses a doubt whether the High Court is competent to call upon him to state the grounds upon which he fixed the amount of security. With reference to this, we desire to call his attention to a ruling of the Madras High Court, at page 450 of Mr. Prinsep's edition of the Code of Criminal Procedure (4 Mad., H.C. Rep., App. 47), an expression of opinion in which we entirely concur. It is there said: 'The imprisonment is provided as a protection to society against the perpetration of crime by the individual, and not as punishment for a crime committed, and being made conditional in default of finding security, it is only just and reasonable that the individual should be afforded a fair chance at least of complying with the required conditions of security.' If the Magistrate declined to fu...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal405
Markby, J.1. The petitioner appealed to the Sessions Judge of Hooghly, who on the 28th of May affirmed the conviction and sentence. The petitioner then applied to this Court to set aside the conviction as illegal: first, because the Magistrate had no power to revive the prosecution against the petitioner after she had been discharged; and, secondly, because the Magistrate could not appear as a witness in a case in which he was the sole judge. On the argument of the case, it was also contended that there was no evidence which would support a conviction.2. As regards the last point, we intimated at the close of the argument for the petitioner, that there was some evidence. Of course we express no opinion whatever as to the sufficiency or otherwise of that evidence; that is a matter into which this Court does not enter upon an application of this kind, nor is it desirable to comment upon this evidence; but I may say with reference to an argument used by Mr. Jackson, that, in my opinion, t...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal425
Markby, J.1. The question turns on the construction of Bong. Act III of 1864, which was in force when the order of Mr. Jeffery was made. The powers and duties of the Municipal Commissioners are defined in Sections 6 to 23. No power to stop up or divert public highways is anywhere in express terms given by the Act; but public highways not being the property of Government or private property are, by Section 10, vested in the Municipal Commissioners, By s, 9 the Municipal Commissioners are enabled to sue and he sued in their corporate name, to hold parties, moveable and immoveable, and to convey the same, and to enter into all necessary contracts for the purposes of the Act. By Section 12, the Municipal Commissioners are required to apply all property vested in them for the purposes of the Act.2. The argument is, that Shudgoppara Lane was a public highway vested in the Municipal Commissioners, and that, under the Act, the Municipal Commissioners may dispose of their property in any way th...
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom61
Michael Westropp, C.J.1. We are unanimously of opinion that the question which Mr. Inverarity proposed to put to the cart-driver Bala Ramji, in cross examination; was, under the circumstances, admissible. On hearing the arguments, we have come to the conclusion that Section 25 of the Indian Evidence Act (I of 1872) does not preclude the counsel for one accused person on behalf of his client, asking questions to prove a confession made by another accused person. But under such circumstances it would be the duty of the Judge to instruct the jury that such confession is not to be received or treated as evidence against the person making it, but simply as evidence to be considered on behalf of the other. We also think that, unless the law were so, the accused person who was on his trial with the confessing party, might be considerably prejudiced by the exclusion of that evidence. The 25th section only provides that 'no confession made to a police officer shall be proved as against a person...
Tag this Judgment!Court : Kolkata
Reported in : (1878)ILR3Cal20
Richard Garth, C.J.1. As this question has arisen from a conflict of opinion between individual Judges, Reporter's Note--The rule as at reference to a Full Bench, passed in July, 1867, provides for reference to a Full Bench only where on Division Court differs from another Division Court on a point of law : and a Division Court is, by Section 13 of 24 and 25 Vict. C. 104, the Act establishing the High Courts, to consist of two or more Judges. Here the cases in which there was a conflict of opinion were decisions by one Judge sitting alone, it ought, properly speaking, not to have been the subject of reference to a Full Bench. But as the reference has been made, and the question is one of general importance, we have thought it desirable to decide it.2. We are of opinion that as the obstruction in this case has caused special injury to the plaintiff, the Civil Court was perfectly justified in directing it to be removed.3. The Criminal Code, no doubt, contains provisions for the removal o...
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