1878 In re ACHARJEE LALL. Judgment. MARKBY, J. was taken before the evidence of the witnesses was recorded; but from the perusal of that examination I think it impossible to infer that the accused were informed what the charge against them was, or that they were given thereby to understand that they were about to be put upon their trial for any particular offence. The first question that was put to the petitioner Acharjee Lall, was a question relating to the charge of theft; and it was in reference to that, and not in reference to any charge against himself, that he had been summoned to attend. No doubt some very general questions were put to him, as to whether or no he had given any information of any theft at all; but what then passed seems to me to be more like a scolding by the Joint Magistrate for general misconduct, than an enquiry such as is contemplated by section 206 of the Criminal Code, and such as would show a man that he was about to be put upon his trial for any particular offence. It was argued before us that the first document which appears on the Joint Magistrate's record was the complaint in this case, and it is headed no doubt "the complaint of Seo Pershad Lall;" but the use of the word "complaint" is merely accidental, because many of the depositions which follow are also headed in that way. It is clear, therefore, that the word "complaint" indicates nothing. It happened to be the word used in the printed forms which were then available. It is also clear that this man was treated as a witness, because a note is made that he was not cross-examined. It is not in fact even suggested by the Joint Magistrate that this man was the complainant in this case. The Sessions Judge is, no doubt, right in saying that what the Joint Magistrate really acted upon was the information given him by the District Superintendent of Police. Under these circumstances we can come to no other conclusion upon the Joint Magistrate's own explanation and what appears upon the record, than this,-that these two petitioners never had any clear statement made to them that they were about to be put upon their trial, or of what the offence was which was charged against them. That is a sufficient ground for disposing of this case, and on that ground alone I should have 1878 In re LALL Judgment. MARKBY, J. no hesitation in quashing the conviction. 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 ACHARJEE appeared to be really a Kazanchi, 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 circumstances, 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 oppression. The conviction and sentence must be set aside, and the petitioners released. PRINSEP, J. : I also agree in setting aside the conviction and sentence recorded by the Joint Magistrate in this case. The object of the Code is to secure a fair trial to every person accused of a criminal charge, and it requires that in a summon's case there should be ordinarily a complaint, and a summons specifying the nature of the complaint. There are certain expressions used in the Code, the object of which is to prevent certain irregularities in matters of form from interfering with the course of justice; but, in the present case, and in fact in all summons' cases, it is absolutely necessary that a person in the presence of a Magistrate should know that he is then about to be tried, or, in the terms of section 206, that the substance of the complaint should be stated to him; and he should be asked if he has any cause to show why he should not be convicted. Now there is nothing in the present case to indicate that either the Dewan or the Kazanchi, who were in attendance to give information regarding a theft case, were informed that they were themselves under trial. The nature of the questions put to them, and the information required, would, as has already been pointed out by Mr. Justice MARKBY, be more in the nature of finding fault with them for some want of co-operation with the PRINSEP, J. police in that case of theft, and would not necessarily inform them that they were then upon their trial for failing in their duty to report that offence which had not yet been proved before the Magistrate; and, therefore, they would naturally infer that before that offence was proved, no further proceedings could be taken against them. In the present case, we have the fact that the Magistrate was sitting in the camp of the District Superintendent of Police; so that these persons would not, as in an ordinary criminal case, when in a regular Court House, have notice that a trial was being held. It is not uncommon for a Magistrate to proceed to the mofussil for the purpose of holding an investigation or tadaruck of various matters which is never considered as a trial, so that being asked these questions by the Joint Magistrate, without any further notice, would not warn these persons that they were then under trial. In other respects I entirely agree with the judgment delivered by Mr. Justice MARKBY, that this case has not been fairly and properly tried. As regards section 90, I think there is considerable force in the argument of Mr. Branson that, although the commencement of that section refers to an agent of an owner or occupier of land responsible for giving information to a Magistrate, when it comes to declare the nature of that information, the terms of the first three clauses seem to exclude that class referring only to the other classes. It would seem either that this was an accidental omission on the part of the Legislature, or that the Legislature expressly intended that an agent is responsible only for giving information regarding the last clause, that is, of the occurrence of any sudden or unnatural death. It is not on this ground, however, that I would set aside the conviction and sentence in this case; but I think it necessary to draw attention to the state of the law: so that if there is any accidental omission it may be rectified when the Code comes under amendment. [CRIMINAL REVISIONAL JURISDICTION.] IN THE MATTER OF HUROSOONDERY CHOW- . PETITIONER. Section 330, Code of Criminal Procedure-Examination of witness by Com- Where a rule is issued, directing a Magistrate to show cause, and he wishes to do so, he should apply to the Legal Remembran cer to have an appearance entered for him in the High Court. The fact that a Hindoo lady is expected to make false statements is no ground upon which an application to take her evidence on commission should be refused. RULE calling on the Magistrate of Mymensingh to show cause why an order directing the issue of a commission to examine one Hurosoondery Chowdhrain should be withdrawn. Paul, (Advocate General,) in support of the rule. The judgment of the High Court (1) was delivered by AINSLIE, J.: On the 12th of this month we made an order, directing the Magistrate to issue a commission for the examination of HuroSoondery Chowdhrain, at the same time giving him leave to show cause why the order should be withdrawn. The Magistrate has now sent up a letter addressed to the Registrar of this Court. This is not the proper form in which he ought to have shewn If he wished to show cause, he should have applied to the Legal Remembrancer to cause an appearance to be made for him in Court. cause. We might deal with this matter as if the Magistrate had not made any appearance at all; but we think it better, under the circumstances, to dispose of the rule on its merits. The reasons assigned by the Magistrate in his letter appear to us to be wholly insufficient. It may be that this lady as well as (1) AINSLIE and BROUGHTON, J.J. 1878 June 24th. No. 105 of 1878. AINSLIB, J. 1878 In re HUROSOON any other person under examination may make statements which are not wholly true; but the Magistrate can guard against that DERY CHOW. by deputing some person thoroughly instructed for the purpose of examining on any fresh matters that may arise on her answers to Judgment. written interrogatories, if it is necessary in this case to issue AINSLIE, J. Written interrogatories at all. At any rate we cannot assume DHRAIN. beforehand that the witness will make false statements. There is in the letter of the Magistrate some indication.that an attempt was to be made to make the witness criminate herself by her answers. This ought not to be done, and is a further reason for directing that she should be examined by commission in order that the answers which she may give may be carefully weighed by her, and not given without full consideration. The rule is made absolute. [CRIMINAL REVISIONAL JURISDICTION.] July 22nd. IN THE MATTER OF JUGGODESHARY CHOW. PETITIONER. Actual Possession-Possession of Agent-Wifes' Possession-Code of Criminal Procedure, secs. 530, 531. In an inquiry under section 530 of the Code of Criminal Procedure, the only thing to be determined is the fact of actual possession. In a dispute between the wife of a lunatic and the manager of his estate, with regard to the possession of certain property, the Magistrate attached the property under section 531 of the Code of Criminal Procedure, on the ground that he was unable to satisfy himself as to who was in possession. It had been proved before him that the wife was in actual possession, but there was a doubt as to whether she was not in possession merely as the agent of her husband. Held, that section 530 has only to do with actual possession; and that the Magistrate should have decided that the wife was in possession. CRIMINAL MINAL REFERENCE from the Judge of Backergunge. Paul, (Advocate-General,) for the Petitioner. Baboo Bhoobun Mohun Dass, with him. Allen, for the Opposite Party. Baboo Bussunt Coomar Bose, with him. |