Court : Mumbai
Reported in : (1877)ILR1Bom217
Michael Westropp, C.J.1. There were issues settled in this cause in the presence of the defendant's pleader, who, moreover, was permitted to cross-examine and did cross-examine the witnesses. Hence there is no ground for maintaining that the decree of the Subordinate Judge was ex parte. We reverse the decree of the District Judge, and direct him to proceed to hear the appeal on the merits. Costs of the special appeal to abide the result....
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 : Kolkata
Reported in : (1876)ILR1Cal207
Richard Garth, C.J.1. In this case, the prisoner Hurribole Chunder Ghose was tried and convicted, at the February Sessions of the High Court, for using certain forged documents, and sentenced to ten years' transportation. At the trial before Macpherson, J., it was proposed on the part of the prosecution to put in a confession made by the prisoner. The confession was made, in the first instance, to two policemen, and taken down in writing, and the prisoner was then brought before the Deputy Commissioner of Police, Mr. Lambert, at the Police Office in Calcutta, where he again affirmed the truth of his former statement to Mr. Lambert, and Mr. Lambert, in his capacity of a Magistrate, received and attested the statement.2. Upon this confession being tendered in evidence, it was objected to by the prisoner's Counsel, upon the ground that it was a confession made by the prisoner to a police officer, and therefore not admissible, by reason of the 25th section of the Evidence Act (I of 1872). ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal386
Markby, J.1. This was a suit to recover damages for defamation. The matter had already been the subject of criminal proceedings. The Subordinate Judge gave the plaintiff a decree for nominal damages; but being of opinion that the suit was a vexatious one, directed the plaintiff to pay the costs of the litigation.2. The case having come up to this Court on special appeal, Mr. Justice Birch was of opinion that there was no ground upon which he could interfere with the decree for nominal damages, but being of opinion that the plaintiff ought not to have been made to pay the costs of the suit set aside the order of the Subordinate Judge as to costs, and directed that the plaintiff should recover the costs of the litigation.3. It is contended before us that, in special appeal, this Court cannot interfere with the discretion of the Courts below as to costs: and that in this case the award of costs to the defendant notwithstanding that the plaintiff obtained a decree for nominal damages, was ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal422
Richard Garth, C.J.1. This is a suit brought by the plaintiff for the purpose of establishing a right of way for himself and his servants from a public road called Hiddaram Banerjee's Lane over a piece of ground, which is called a blind lane, to a kirkee door and privy in the plaintiff's house.2. The defendant, whose residence is situated at the end of the blind lane, has built up a wall, against the plaintiff's kirkee and privy doors, and also across the entrance from the blind lane to Hiddaram Banerjee's Lane, so as to prevent all access from Hiddaram Banerjee's Lane to the plaintiff's house.3. It does not very clearly appear from the evidence to whom the land called the blind lane belongs. The plaintiff has made an attempt to claim one half of it as his own, upon the ground, that as it was a road lying between his house and his neighbours, the presumption of law was that he was entitled to the half of it, usque ad medium filum of the space between the two houses.4. We think, however...
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 : (1876)ILR1Cal355
Pontifex, J.1. On the part of Marad Ali, an affidavit of Mr. Pittar, and behalf of Hadjee Jeebun Bux, a joint and several affidavit of Mr. Lealie and Hadjee Jeebun Bux, were filed. To the latter affidavit was annexed an attested copy of the notes of the evidence taken by the Magistrate at the hearing of the charge.2. Mr. Branson went into the merits of the case, and contended that the defendant had been rightly convicted. [Mr. Jackson.--The notes of the evidence taken before the Magistrate must be taken to be the materials on which the Court is now to decide. See In re Louis 15 B.L.R. Ap. 14. Affidavits cannot be used to supplement that evidence.] There the case had been brought up under Section 147; this is an order calling on us to show cause why it should not be sent up. The notes do not comprise all the evidence taken before the Magistrate. He is not bound to take notes at all. [Pontifex, J.--Is it a case of mischief at all? The wall appears to be a party wall. But even if it had b...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal297
L.S. Jackson, J.1. In appeal the first point argued was that the Subordinate Judge ought to have dismissed the plaintiff's case on the strength of the Privy Council Rulings cited by the (defendant) appellant. Great stress was laid upon the fact that Grish Narain and Mohendro Narain were admittedly not in possession at the time they granted the lease, which formed the basis of the plaintiff's claim, and it was pointed out that the ikrar, dated 17th Assar 1278, clearly showed that the full payment of the consideration was contingent on the result of this litigation, and that thus the suit was eminently a speculative one. The rulings cited by the (defendant) appellant before the Subordinate Judge as well as Tara Soondaree Chowdhrain v. The Collector of Mymensingh 13 B.L.R. 495 Ram Khelawun Singh v. Mussamut Oudh Kooer 21 W.R. 101, Boodhun Singh v. Mussamut Luteefun 22 W.R. 535 and Bishonath Dey Roy v. Chunder Mohun Dutt Biswas 23 W.R. 165 were referred to in support of the appellant's con...
Tag this Judgment!Court : Mumbai
Reported in : (1878)ILR2Bom388
Michael Westropp, C.J.1. Mulji Nandlal, a Hindu of the Vania caste, died, on the 5th of January 1840, possessed of considerable moveable and immoveable property. The latter, with the single exception of a house and premises situate at Jambusir, in Guzerat, lay in the island of Bombay. He left no male issue, but his widow Sarasvatibai and his daughter Jethibai (called, in his will, Ben Jiethi) survived him. By that will, which was written in the Guzerathi language and character, and was dated the 2nd of January 1840, he appointed Gangadas Vizibhukandas and Trikamlal Avechuldas his executors. More translations than one of it have been put in evidence. We take the best of these translations as our guide to the contents of the will, namely, that made by our present chief translator, Mr. Flynn, on the 2nd September 1874. The appointment of Gangadas Vizbhukandas and Trikamlal Avechuldas as executors was made thus:2. 'To Shah Gangadas Vizbhukandas and Shah Trikamlal Avechuldas. Written by Sha...
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